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Holley v. ACE American Ins. Co.

oklahoma

Oklahoma Supreme Court

HOLLEY v. ACE AMERICAN INSURANCE COMPANY2013 OK 88Case Number: 110247Decided: 10/22/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RACHEL HOLLEY, Plaintiff/Appellee, v. ACE AMERICAN INSURANCE COMPANY and UNIT CORPORATION, Defendants/Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM THE DISTRICT COURT OF ROGER MILLS COUNTY, STATE OF OKLAHOMA HONORABLE DOUG HAUGHT, TRIAL JUDGE ¶0 An Oklahoma worker was killed at Employer's jobsite in Texas. Employer's Insurer paid worker's Widow death benefits provided by Texas workers' compensation law. Widow also recovered damages in a wrongful death tort action in Texas. When Employer's Insurer sought subrogation from Widow's wrongful death damages as allowed by Texas law, Widow filed suit in Oklahoma to prevent subrogation. She sought a declaratory judgment that the rights of Oklahoma workers and their dependents are governed by Oklahoma's Workers' Compensation Act, notwithstanding the worker's injury or death in another state, and any benefits that may be paid under another state's workers' compensation law. In particular, Widow asked the Oklahoma court to enforce the provision in Oklahoma law that forbids subrogation in cases of death benefits. The trial court granted the declaratory relief sought by Widow. On appeal by Employer's Insurer, the Court of Civil Appeals reversed. The Court of Civil Appeals ruled that Widow had to commence a proceeding by filing a claim with Oklahoma's Workers' Compensation Court before Oklahoma could exercise jurisdiction over the benefits due Widow, including enforcement of the anti-subrogation provision in death benefit cases. Because Widow never filed a claim with Oklahoma's Workers' Compensation Court, the Court of Civil Appeals held subrogation was proper. We have previously granted certiorari. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED. Rex Travis & Paul Kouri, TRAVIS LAW OFFICE, Oklahoma City, Oklahoma, for Plaintiff/Appellee, Brandy L. Shores, LATHAM, WAGNER, STEELE & LEHMAN, Tulsa, Oklahoma, for Defendants/Appellants. REIF, V.C.J.: ¶1 This Court is asked to decide whether Oklahoma law prohibiting subrogation of workers' compensation death benefits prevents Ace American Insurance Company (Insurer) from recouping death benefits it has paid to the widow of an Oklahoma worker killed at a jobsite in Texas. Insurer paid widow death benefits provided by Texas law and is seeking subrogation from tort damages widow also recovered in a Texas wrongful death case. ¶2 Insurer and widow agree that (1) the deceased worker's contract for employment was made in Oklahoma, (2) worker was killed in the scope of his employment at employer's jobsite in Texas, and (3) widow could elect to receive workers' compensation death benefits under either Texas law or Oklahoma law. The parties further agree that widow recovered both workers' compensation death benefits from employer and tort damages from third parties as provided by Texas law. They disagree, however, over the law that governs insurer's right to be subrogated from widow's tort damages to the extent of the workers' compensation death benefits it paid widow. ¶3 Insurer has basically argued that Texas law allowing subrogation applies, because the workers' compensation death benefits and widow's tort recovery were both based on Texas law. The gist being that Oklahoma law cannot be applied, because widow did not invoke Oklahoma law to be compensated for the loss of her husband. In contrast, Widow has basically contended that her election to receive compensation for the loss of her husband under Texas law did not waive other rights given under Oklahoma workers' compensation law as a consequence of the deceased worker's Oklahoma contract of employment. In essence, Widow asserts that Oklahoma's subrogation prohibition applies to all benefits paid for the job-related death of an Oklahoma worker including those provided by Texas law or any other jurisdiction. ¶4 Widow brought a declaratory judgment suit to resolve this controversy. The trial court ruled in favor of widow. Upon appeal by Insurer, the Court of Civil Appeals agreed that widow could seek other "benefits" under Oklahoma law, notwithstanding her election to seek compensation under Texas law. However, the Court also concluded that statutory law required widow to commence a proceeding by filing a claim to preserve and pursue further "benefits," like the subrogation prohibition. Noting that widow had never filed a claim with the Oklahoma Workers' Compensation Court, the Court of Civil Appeals ruled Texas law allowing subrogation applied, and not Oklahoma's anti-subrogation rule. Widow filed a petition for certiorari, seeking review of the opinion of the Court of Civil Appeals. This Court has previously accepted this case for review. ¶5 The resolution of the controversy between the parties has required the trial court and Court of Civil Appeals to construe Oklahoma statutory law set forth in 85 O.S.2001, § 41 and 85 O.S.Supp.2005, § 44(b)2. This was the applicable law at the time of the worker's death on July 29, 2008. Statutory construction presents a question of law and lower court rulings in this regard are reviewed de novo. State ex rel. Oklahoma Tax Comm'n v. Sun Co., 2009 OK 11, ¶ 8, 222 P.3d 1046, 1048. ¶6 The text of § 4 makes it clear that an Oklahoma employment contract is protected by "all the provisions of the Workers' Compensation Act of this state . . . irrespective of where accident resulting in injury may occur." The text of § 44(b) similarly unequivocally provides that: "[T]he employer or his insurance carrier shall not have the right of subrogation to recover money paid . . . for death claims or death benefits under the Workers' Compensation Act." ¶7 The chief problem with the holding of the Court of Civil Appeals lies in construing the prohibition on seeking subrogation as a "benefit." Not every valuable right under the Workers' Compensation Act is a "benefit." See First Nat'l Bank of Belleville v. Paul Hughes Trucking Co., 1982 OK CIV APP 23, ¶¶ 6-10, 645 P.2d 1054, 1055 (interest on an unpaid award is not a benefit). The statutory prohibition against subrogation is not a "benefit," but rather a public policy protection and substantive element of the right to receive and obligation to pay death benefits. ¶8 "The right of an employee to compensation arises from the contractual relationship existing between the employee and the employer on the date of injury, and the statutes then in force form part of that contract and determine the substantive rights and obligations of the parties." Knott v. Halliburton Services, 1988 OK 29, ¶ 4, 752 P.2d 812, 813. "The right to compensation and the obligation to pay such benefits are vested, and become fixed by law at the time of the injury." Id. (emphasis added). More particularly, this Court has said "Rights of survivors of a deceased employee [to] claim death benefits . . . become fixed upon date of death and are determinable under the law in effect on that date." Independent School District No. 89 v. McReynolds, 1974 OK 136, 528 P.2d 313 (syllabus). ¶9 On July 29, 2008, the date of deceased worker's death, the statutory and contractual obligation of employer and insurer to pay death benefits contained the express element that this obligation was without a right of subrogation. The coordinate right of the deceased Oklahoma worker and his dependents that became vested and fixed by law was to receive death benefits free from any right of subrogation on the part of employer or insurer. The obligation and right were thus established "irrespective of where accident resulting in injury may occur." The legislature evinced no intent to make this element of the death benefit obligation and right dependent upon (1) the amount of the death benefit, (2) the forum in which the death benefits are determined, or (3) the jurisdiction in which a widow or other dependent might seek compensation from third parties. ¶10 This conclusion is further supported by reading sections 4 and 44 together. Section 44(b) prohibits subrogation of "money paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act." § 44(b) (emphasis added). Under section 4, dependents of an Oklahoma worker who is killed while working in another state can obtain death benefits under the Workers' Compensation Act in one of two ways. The dependents can either (1) "commence and maintain [an] action for benefits and compensation in the State of Oklahoma," or (2) receive "benefits or compensation provided under any law of the state where injury [or death] occurred." If the benefits or compensation paid under the laws of another state result from a final determination of an action in the other state, the dependents are "precluded from [a] right of action under the Workers' Compensation Act of this state." The context indicates they are precluded from a right of action in Oklahoma for benefits or compensation. This is the only express consequence of an election to receive "benefits or compensation" under the laws of another state. Nothing in section 4 changes the fact that death benefits paid under the law of another state (whether by adjudicated claim or not) constitute "money paid by the employer or his insurance carrier . . . under the Workers' Compensation Act," and are thus protected from subrogation. ¶11 In addition to the foregoing considerations, the protection of death benefits from subrogation, like the exemption of benefits from creditors' claims provided by 85 O.S.Supp.2005, § 48, is a general public policy protection provided by Oklahoma's Workers' Compensation Act. Any doubt about the application of such protections should be resolved in favor of the protection. See In re Allen's Guardianship, 1938 OK 271, 78 P.2d 700. ¶12 Finally, we find nothing in the Workers' Compensation Act to indicate that the recipient of death benefits could only enforce general policy protections, like the subrogation prohibition and the creditors' exemption, by filing a claim with the Oklahoma Workers' Compensation Court. An effort by a widow or dependent to enforce either the subrogation prohibition or creditors' exemption does not involve prosecution of an action for "recovering further benefits and compensation," as provided by § 4; it is simply the assertion of a public policy protection that vests and becomes fixed at the time of the deceased worker's death. ¶13 In conclusion, we hold the trial court correctly construed and applied 85 O.S.2001, § 4 and 85 O.S.Supp.2005, § 44(b), in ruling that Insurer could not seek subrogation for death benefits it paid widow for her husband's job-related death on July 29, 2008. The fact that the amount of the benefits was determined by Texas law is immaterial to the existence and enforcement of the parties' rights and duties under Oklahoma law concerning the issue of subrogation. In addition, we hold the trial court's declaratory judgment in favor of widow on this issue was a proper way to resolve the actual controversy between widow and Insurer over Insurer's claimed right to subrogation. 12 O.S.Supp.2004, § 1651.3 Widow was not required to file a claim with the Oklahoma Workers' Compensation Court to decide this issue, despite the fact that this issue concerned a right and obligation founded on the Oklahoma's Workers' Compensation Act. The provision in § 44(b) prohibiting subrogation in death benefit cases was not "compensation" or a "benefit" that the workers' compensation court could award or withhold. It was instead a substantive element of the right to receive and the obligation to pay death benefits that became vested and fixed on July 29, 2008, upon worker's death. ¶14 Based on the foregoing considerations, we conclude the Court of Civil Appeals erred in construing the applicable law and in reversing the judgment of the trial court. Accordingly, we vacate the opinion of the Court of Civil Appeals and affirm the judgment of the trial court. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED. ¶15 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, and GURICH, JJ., concur. ¶16 KAUGER (separate writing), WINCHESTER, TAYLOR, and COMBS, JJ., dissent. FOOTNOTES 1 Title 85 O.S.2001, § 4 (later repealed by Laws 2011, but in effect at the time of the death the worker) provides, in pertinent part, that: From and after the passage and effective date of the Workers' Compensation Act, all the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and to employees, irrespective of where accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under direction of such employer. In such case the injured employee may elect to commence and maintain his action for benefits and compensation in the State of Oklahoma as provided in the Workers' Compensation Act and the Court is hereby vested with jurisdiction thereof as fully as if such injury or accident had occurred within this state. Such right of election shall, however, not preclude the injured employee from recovering any benefits or compensation provided under any law of the state where injury occurred, and if such action be so commenced in such other state, or under the law of another state, and is prosecuted to final determination, such employee shall thereupon be precluded from his right of action under the Workers' Compensation Act of this state. Provided, the injured employee may exercise his right of election to file his claim or commence his said action or proceeding in the State of Oklahoma, at any time prior to final adjudication or determination of his rights under the laws of another state, and the fact that he shall have been furnished or provided with medical, surgical, hospital or other treatment care, or paid temporary disability compensation in such other state, or under the laws thereof, shall not preclude such injured employee from recovering further benefits and compensation under the Workers' Compensation Act of this state. Provided, further, no award made by the Court of this state shall include any compensation paid by the employer or insurance carrier before commencement of the action or proceeding in this state and any payments so made shall be treated as compensation voluntarily paid and credit therefor shall be allowed. 2 Title 85 O.S.Supp.2005, § 44(b), (later repealed by Laws 2011 and replaced by 85 O.S.2011, § 348 allowing subrogation), provides: (b) Notwithstanding subsection (d) of this section, the employer or his insurance carrier shall not have the right of subrogation to recover money paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act from third persons, with all common law rights against other than the employer and his employees preserved and to be in those persons who would have had such rights had there been no death claim or death benefits under the Workers' Compensation Act. 3 District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or non-liability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. KAUGER, J., with whom WINCHESTER, TAYLOR, COMBS, JJ., join dissenting: ¶1 This cause arose when an Oklahoma worker, Appellee's husband, was killed at employer Unit Corporation's job-site in Texas. It is not disputed that: 1) the husband's contract for employment was made in Oklahoma; 2) he was killed in the scope of his employment at his employer's job-site in Texas; 3) his widow (wife) could have elected to receive workers' compensation death benefits under either Texas law or Oklahoma law; and 4) the wife recovered workers' compensation death benefits and tort damages from third parties as provided by Texas law. ¶2 While receiving death benefits provided under Texas law, the wife settled a third-party wrongful death claim. Insurer pursued subrogation in accordance with its statutory right under Texas' workers' compensation law. The wife filed suit for a declaratory judgment in Roger Mills County, Oklahoma, against both the employer and insurer alleging that Oklahoma law prohibited subrogation of death benefits paid for the job-related death of an Oklahoma worker covered by the Oklahoma Workers' Compensation Act (the Act)-- even benefits awarded under Texas law or the law of another jurisdiction. The trial court ruled in favor of the wife, but on appeal by the insurer, the Court of Civil Appeals held that because the wife had never filed a claim with the Oklahoma Worker's Compensation Court, the law of Texas allowing subrogation applied, rather than Oklahoma Worker's Compensation law prohibiting subrogation. ¶3 The majority holds that the Act's prohibition on subrogation in death benefit cases was a substantive element of the right to receive and obligation to pay death benefits that became vested at the time of injury, and therefore applied to all benefits wife was entitled to recover, without regard to the jurisdiction that awarded them. I disagree, and believe that the majority misconstrues the relevant statutory provisions. ¶4 The relevant statutes in effect at the time of the husband's death on July 29, 2008, were found at 85 O.S. 2001 §41 and 85 O.S. Supp. 2005 §44(b).2 The majority places great emphasis on the first sentence of 85 O.S. 2001 §4, which provided: [f]rom and after the passage and effective date of the Workers' Compensation Act, all the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and to employees, irrespective of where accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under direction of such employer.3 (Emphasis supplied). Neither side disputes that, under this section, the wife would have been entitled to file a claim or commence an action to recover death benefits pursuant to the Act even though the injury did not occur in Oklahoma. ¶5 However, the first sentence of 85 O.S. 2001 §4 cannot be read in isolation. The words, phrases, and sentences of a statute are to be understood as used, not in any abstract sense.4 Words used in a part of a statute must be interpreted in light of their context and understood in a sense which best harmonizes with all other parts of the statute.5 When read in its entirety, the true intent of §4 as a right of election provision for the injured employee becomes evident. ¶6 The second sentence of 85 O.S. 2001 §4 indicates that the injured employee has a choice of how to pursue their right to recover. It states: [s]uch right of election shall, however, not preclude the injured employee from recovering any benefits or compensation provided under any law of the state where injury occurred, and if such action be so commenced in such other state, or under the law of another state, and is prosecuted to final determination, such employee shall thereupon be precluded from his right of action under the Workers' Compensation Act of this state. (Emphasis supplied). Title 85 O.S. 2001 §4 then provides: …[t]the injured employee may exercise his right of election to file his claim or commence his said action or proceeding in the State of Oklahoma, at any time prior to final adjudication or determination of his rights under the laws of another state. (Emphasis supplied). ¶7 The wording of the statute creates a choice between two different paths: pursue the right to recover under the Act in Oklahoma, subject to its provisions, or elect to have the right to recover and associated benefits adjudicated under the laws of another state. An injured party cannot have their right to recover adjudicated in both places: they can start out on both paths, but once an action to recover in another state is prosecuted to a final determination, an injured party has no right of action under the Act. The statute indicates that it is not just benefits that an injured employee may elect to have determined under the laws of another state, but also his/her "rights".6 ¶8 In Pryse Monument Co. v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, this court examined another right of election provision under a prior incarnation of Oklahoma workers' compensation law. That cause concerned the right of election either to pursue remedies against an employer through the workers' compensation statutes or in tort. We said of the choice: One who sustains an on-the-job injury while employed in a business which remains impermissibly uninsured though it is governed by the Workmen's Compensation Act has been given two distinct remedies for vindication of his Single, statutorily-conferred right to recover. … Waiver by election will preclude the claimant from vexing the employer with a second suit. Once a remedy is chosen and then pursued to conclusion, the point of no return is reached although there has been no satisfaction, much less vindication, of the right. Three essential elements, all present here, must coincide to make preclusion through waiver by prior election of remedies applicable: (a) two or more remedies must be in existence (b) the available remedies must be inconsistent (c) choice of one remedy and its pursuit to conclusion must be made with knowledge of alternatives that are available … In Assessment Bond Service v. W.R. Johnston & Company, Okl., 296 P.2d 959, 964 (1956) we settled this principle in clear and unmistakable terms. Therein we said that " 'Where a plaintiff has elected one of two remedies for the enforcement of a right, and such action is barred by the statute, He is bound by his election and cannot thereafter resort to the other remedy for which a different limitation is provided.' "7 ¶9 Legislation in Oklahoma governing workers' compensation has evolved over time, but the Legislature's choice of words in drafting 85 O.S. 2001 §4 provides a similar choice concerning election that echoes the one discussed in Pryse. The wife had a right to recover and was offered two options by 85 O.S. 2001 §4: pursue that right under the Act in Oklahoma with its associated remedies, including benefits protected from subrogation, or pursue that right under the laws of another state. ¶10 The anti-subrogation protection of Title 85 O.S. Supp. 2005 §44(b) was not part of the right to recover that vested at the time of injury, but part of the remedy provided by one branch of the two possible paths to vindication of that right to recover. Title 85 O.S. Supp. 2005 §44(b) states specifically that the anti-subrogation provision applies to "money paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act from third persons…"8 Wife never sought, and never obtained, death benefits under the Act. She accepted the choice offered by 85 O.S. 2001 §4 to pursue a remedy under the laws of another state, and received a final adjudication of her rights under the laws of Texas, at which point she became barred from invoking the Act to seek a different remedy for the same injury under Act's provisions. ¶11 The majority cites Knott v. Halliburton Services 1988 OK 29, 752 P.2d 812 for the assertion that the anti-subrogation protections attached to benefits awarded under the Act, provided by 85 O.S. Supp. 2005 §44, were somehow part of the global right to recover that became vested at the time of injury. That was not the holding of Knott. When read in full, ¶4 is illustrative. It provides: The right to compensation and the obligation to pay such benefits are vested, and become fixed by law at the time of injury. A compensation claim is controlled by the laws in existance [sic] at the time of injury and not by laws enacted thereafter. A worker's right to compensation is determined by the laws in force when the injury is sustained, notwithstanding a subsequent amendment to the law. The right of an employee to compensation arises from the contractual relationship existing between the employee and the employer on the date of the injury, and the statutes then in force form a part of that contract and determine the substantive rights and obligations of the parties. No subsequent amendment can operate retrospectively to affect in any way rights and obligations which are fixed. (Emphasis supplied).9 Knott, supra, simply holds that the statutes governing the right to workers' compensation and the obligation to pay it are those in force at the time of injury, and unaffected by subsequent amendments. In this cause, that includes 85 O.S. 2001 §4 and the right of election is provides. Nothing about Knott implies that 85 O.S. Supp. 2005 §44(b) means anything other than what its text indicates: that it applies to death claims or death benefits awarded under the Act, which 85 O.S. 2001 §4 allows an injured employee to choose as one path of recovery.10 There is no indication that this prohibition is somehow part of a global right to recover and not part of one remedy provided by 85 O.S. 2001 §4. Knott, supra, does not mention 85 O.S. Supp. 2005 §44(b), or subrogation, at all. ¶12 The majority's interpretation of 85 O.S. 2001 §4 and 85 O.S. Supp. 2005 §44(b) is inconsistent with the full text of the two provisions, and is not supported by a prior decision of this Court that has examined 85 O.S. Supp. 2005 §44(b). In McBride v. Grand Island Express, Inc., 2010 OK 93, 246 P.3d 718, we analyzed the history and legislative intent behind 85 O.S. Supp. 2005 §44. Specifically, of §44(b) we stated first in ¶12: Section 44(b) however has no right of subrogation to recover money from third persons paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act. The employer or the insurance carrier had no historical right by payment of workers' compensation death benefits to pursue the tortfeasor to recover the workers' compensation death benefits paid because the right to death benefits subrogation was not authorized and was viewed as in conflict with Oklahoma Constitution, Article 23 § 7.11 Again at ¶14 we stated: Section 44(b) absolutely withholds from employer or insurer subrogation rights to recover from third parties money paid for death benefits under the Workers' Compensation Act. (Emphasis added). McBride states that no right of subrogation existed with regard to death claims or death benefits under the Act, no more and no less. It is silent on any application of 85 O.S. Supp. 2005 §44 to claims filed and benefits awarded under the laws of another state, and not under the Act, a choice specifically allowed by 85 O.S. 2001 §4. ¶13 The wife never made a claim or sought benefits under the Act, even though she would have been entitled to do so. She exercised her right of election and had her rights regarding any claim to benefits from her husband's death adjudicated by a Texas court, pursuant to the laws of Texas, under which laws she was awarded benefits. Upon doing so she was categorically excluded from pursuing an adjudication of the same right to recover under the Act in Oklahoma. As she never claimed or received benefits under the Act, by its own plain wording 85 O.S. Supp. 2005 §44 is inapplicable. ¶14 The Restatement (Second) of Conflict of Laws §185 (1971) was formulated to provide an answer to this exact question and is in accord with the above analysis and the provisions of 85 O.S. 2001 §4 and 85 O.S. Supp. 2005 §44. It provides, simply: The local law of the state under whose workmen's compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury. The plain wording of 85 O.S. 2001 §4 makes it obvious that it offers injured parties a choice of jurisdiction not just to adjudicate benefits, but all rights associated with an injury stemming from the relevant contractual relationship. 85 O.S. 2001 §4 ensures that an individual who contracted in Oklahoma will be able to recover for an out-of-state injury if the law of the state where it occurs does not allow it or if they would prefer the benefits provided by Oklahoma law. It does not allow the injured party to pick and choose whatever hybrid of the laws of both states he or she would prefer, nor can I believe the Legislature intended such a result. To hold that the Workers' Compensation Act applies anyway, to prohibit subrogation of benefits awarded in Texas under Texas law, functions to make the right of election provided by Title 85 O.S. 2001 §4 meaningless. CONCLUSION ¶15 The majority asserts that 85 O.S. 2001 §4 provides nothing more than a choice of where to seek an award of benefits that, either way, are awarded under the Oklahoma Workers' Compensation Act. They ignore all the language in the statute indicating that when a party choses to have their rights adjudicated in another state, they are choosing to have their right to recover for their injury adjudicated by the court of another state according to that state's laws, and not according to the Act. The Texas court in this cause did not award benefits pursuant to the Oklahoma Workers' Compensation Act, but pursuant to Texas law in response to an injury that occurred in Texas over which it had jurisdiction. The fact that the Act would have allowed the wife to choose an Oklahoma court instead, does not matter because wife rejected that option. While protections against subrogation of benefits may be part of the public policy protection provided by the Act, that does not matter when, as here, an injured person has chosen the courts and laws of another state to have their rights adjudicated, and declined to invoke the Oklahoma Workers' Compensation Act. FOOTNOTES 1 Title 85 O.S. 2001 §4 provides in pertinent part: From and after the passage and effective date of the Workers' Compensation Act, all the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and to employees, irrespective of where accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under direction of such employer. In such case the injured employee may elect to commence and maintain his action for benefits and compensation in the State of Oklahoma as provided in the Workers' Compensation Act and the Court is hereby vested with jurisdiction thereof as fully as if such injury or accident had occurred within this state. Such right of election shall, however, not preclude the injured employee from recovering any benefits or compensation provided under any law of the state where injury occurred, and if such action be so commenced in such other state, or under the law of another state, and is prosecuted to final determination, such employee shall thereupon be precluded from his right of action under the Workers' Compensation Act of this state. Provided, the injured employee may exercise his right of election to file his claim or commence his said action or proceeding in the State of Oklahoma, at any time prior to final adjudication or determination of his rights under the laws of another state, and the fact that he shall have been furnished or provided with medical, surgical, hospital or other treatment care, or paid temporary disability compensation in such other state, or under the laws thereof, shall not preclude such injured employee from recovering further benefits and compensation under the Workers' Compensation Act of this state. Provided, further, no award made by the Court of this state shall include any compensation paid by the employer or insurance carrier before commencement of the action or proceeding in this state and any payments so made shall be treated as compensation voluntarily paid and credit therefor shall be allowed…. 2 85 O.S. Supp. 2005 §44(b) provides: (b) Notwithstanding subsection (d) of this section, the employer or his insurance carrier shall not have the right of subrogation to recover money paid by the employer or his insurance carrier for death claims or death benefits under the Workers' Compensation Act from third persons, with all common law rights against other than the employer and his employees preserved and to be in those persons who would have had such rights had there been no death claim or death benefits under the Workers' Compensation Act. 3 Title 85 O.S. 2001 §4, see note 1, supra. 4 Matter of Estate of Little Bear, 1995 OK 134, ¶22, 909 P.2d 42; State ex rel. Rucker v. Tapp, 1963 OK 37, ¶11, 380 P.2d 260. 5 Matter of Estate of Little Bear, see note 4, supra. 6 Title 85 O.S. 2001 §4 provides in pertinent part: …[t]the injured employee may exercise his right of election to file his claim or commence his said action or proceeding in the State of Oklahoma, at any time prior to final adjudication or determination of his rights under the laws of another state. (Emphasis supplied). 7 Pryse Monument Co. v. District Court of Kay County, 1979 OK 71, ¶2, 595 P.2d 435 (internal citations omitted). 8 Title 85 O.S. Supp. 2005 §44(b), see note 1, supra. 9 Knott v. Halliburton Services 1988 OK 29, ¶4, 752 P.2d 812. 10 The other path being an an adjudication of the injured worker's rights and benefits under the laws of another jurisdiction, which the wife chose in this cause. 11 McBride v. Grand Island Express, Inc., 2010 OK 93, ¶12, 246 P.3d 718.

b8e0ad41-f36c-43c2-b18b-7a4f486dde35

Courtney v. Oklahoma

oklahoma

Oklahoma Supreme Court

COURTNEY v. STATE OF OKLAHOMA2013 OK 64Case Number: 111121Decided: 07/02/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SEDRICK RAMON COURTNEY, Petitioner/Appellant, v. THE STATE OF OKLAHOMA, Respondent/Appellee. ORIGINAL PROCEEDING TO REVIEW ORDER DENYING REQUEST TO DETERMINE ACTUAL INNOCENCE TULSA COUNTY DISTRICT COURT CASE NO. CF-1995-2345, HONORABLE WILLIAM C. KELLOUGH, DISTRICT JUDGE ¶0 Petitioner Sedrick Ramon Courtney filed a post-conviction relief proceeding in the district court. He sought to vacate his conviction for robbery based on exonerating DNA evidence. He also asked the court to determine his actual innocence for the robbery in order to pursue a claim for wrongful conviction under the Governmental Tort Claims Act. The court vacated the conviction, but denied the request to determine actual innocence. Unsure of the means to obtain review of this denial, Petitioner filed an appeal with this Court and an appeal with the Court of Criminal Appeals. Petitioner also asked this Court to assume original jurisdiction to resolve the uncertainty over appellate jurisdiction in cases such as this. We have previously assumed original jurisdiction. We hold jurisdiction to review an order disposing of a request to determine actual innocence lies with this Court. We also consolidate Petitioner's appeal with this original proceeding and reverse and remand with directions. ORIGINAL JURISDICTION PREVIOUSLY ASSUMED; APPEAL TO THIS COURT OF THE ORDER DENYING REQUEST FOR DETERMINATION OF ACTUAL INNOCENCE CONSOLIDATED WITH THIS ORIGINAL PROCEEDING; ORDER DENYING REQUEST TO DETERMINE ACTUAL INNOCENCE REVERSED AND REMANDED WITH DIRECTIONS. Richard O'Carroll, Esq., O'CARROLL & O'CARROLL, Tulsa, Oklahoma, for Petitioner, Barry Scheck, Esq., Karen Thompson, Esq., THE INNOCENCE PROJECT, New York, New York, for Petitioner, Charles A. Dickson III, Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent, Howard Schiffman, Esq., Katherine Schuerman, Esq., SCHULTE, ROTH AND ZABEL LLP, Washington, D.C., and Patrick O. Waddel, SNEED LANG PC, Tulsa, Oklahoma, for Amicus Curiae. REIF, V.C.J.: ¶1 The primary issue presented in this original proceeding is whether this Court or the Court of Criminal Appeals has jurisdiction to review an order deciding a request to determine actual innocence. A determination of actual innocence is required for a wrongful conviction claim under the Governmental Tort Claims Act, 51 O.S.2011, §§ 151 through 172. The controversy over appellate jurisdiction stems from the fact that petitioner Sedrick Ramon Courtney sought a determination of actual innocence at the conclusion of a post-conviction relief proceeding. This is a criminal proceeding under 22 O.S.2011 §§ 1080 through 1089. The trial judge denied the request to determine actual innocence, despite having vacated petitioner's conviction on the basis of exonerating evidence. ¶2 In denying petitioner's request to determine actual innocence, the judge expressed the opinion that there was not clear and convincing evidence of petitioner's actual innocence. However, the judge further stated that this denial was without prejudice to petitioner seeking such relief in another court of general jurisdiction in this State. Given the absence of legislative guidance for review of orders deciding the issue of actual innocence, the petitioner filed an appeal in this Court and an appeal in the Court of Criminal Appeals. The petitioner also asked this Court to assume original jurisdiction to resolve this uncertainty. ¶3 We have previously assumed original jurisdiction to settle the controversy over appellate jurisdiction to review orders deciding requests to determine actual innocence. Okla. Const. Art. 7, Section 4. We also find it necessary to review the order in the case at hand. We do so because the trial court erred in finding that another court has jurisdiction to make the threshold determination of actual innocence for purposes of the Governmental Tort Claims Act. As concerns this latter issue, we observe that statutory law and precedent from this Court state that jurisdiction to make the threshold determination of actual innocence lies in the court that vacates, dismisses or reverses the conviction of the person seeking to pursue a wrongful conviction claim. 51 O.S.2011 § 154(B)(2)(e)(2); Wilhoit v. State, 2009 OK 83, ¶ 11, 226 P.3d 682, 685. ¶4 As concerns the issue of appellate jurisdiction, we hold that jurisdiction to review an order deciding a request to determine actual innocence lies in this Court. We reach this conclusion because the threshold determination of actual innocence (made in conjunction with an order vacating, dismissing or reversing a conviction) is not a requirement founded upon the criminal law or the criminal procedure of this State. This threshold determination is a requirement created by the Governmental Tort Claims Act as a predicate to a tort claim against the State for wrongful conviction. 51 O.S.2011 §§ 154(B) and 156(H). Significantly, the concept of actual innocence is not a common law legal standard in the same sense as guilt beyond a reasonable doubt. The term actual innocence is a general expression of Legislative intent to limit tort claim relief to cases in which the defendant was exonerated, as opposed to cases in which a conviction is set aside from the suppression of a confession or the exclusion of other evidence. Even though the determination of actual innocence is to be made in conjunction with a post-conviction relief proceeding, actual innocence is not an issue that must be determined for the court to grant post-conviction relief. ¶5 Actual innocence is an ancillary issue to be determined in a supplemental proceeding. In the supplemental proceeding, the court makes use of the evidence adduced at the post-conviction relief proceeding as well as other evidence. By directing the post-conviction relief court to make the additional determination of actual innocence, the Legislature was not making actual innocence a matter of criminal jurisprudence; the Legislature was simply seeking to achieve judicial economy. In the final analysis, a determination of actual innocence does not entitle the successful petitioner to further relief under the criminal law, it simply paves the way for the petitioner to pursue civil liability on the part of the State. ¶6 This pre-claim determination is the just the first step in the tort claim process that may ultimately require a jury to finally determine a claimant's actual innocence. As such, the determination of actual innocence at this stage is a matter that falls within the civil jurisprudence of this State and the appellate jurisdiction of this Court. Either party, the petitioner or the State, may appeal this threshold determination. ¶7 In denying the request to determine actual innocence in the case at hand, the trial court expressed concern that petitioner did not meet his "burden of proof" on the issue of his actual innocence. We find the trial court also erred as a matter of law in construing the showing required by the petitioner to be a "burden of proof." Statutory construction presents a question of law that is reviewable de novo. State ex rel. Oklahoma Tax Comm'n v. Sun Co., 2009 OK 11, ¶ 8, 222 P.3d 1046, 1048. While the Legislature does require clear and convincing evidence of actual innocence to pursue a claim, we do not believe that the Legislature intended the court to make a final adjudication of actual innocence at this stage. When viewed in the context of the larger tort claims process, it appears the Legislature intended the court to act as gatekeeper. ¶8 The gatekeeper role of the court is to determine whether the petitioner had made a prima facie case of innocence. The requirement of "clear and convincing evidence" at this stage is not a burden of proof, but is the measure of the prima facie case. Clear and convincing evidence is sufficient evidence, both in its quality and quantity, so as to produce a firm conviction of the truth of the allegation. State ex rel. Oklahoma Bar Association v. Wilcox, 2009 OK 81, ¶ 3, 227 P.3d 642, 647. In the related gatekeeper role for the tort of outrage, the trial court must allow the case to go forward if reasonable persons could differ on the ultimate issue. See Miller v. Miller, 1998 OK 24, ¶ 34, 956 P.2d 887, 901. ¶9 In assessing the prima facie case at this stage, the post-conviction relief court must view the evidence in a light most favorable to the petitioner, particularly any exonerating evidence. An appellate court must likewise view the evidence in a light most favorable to the petitioner when conducting de novo review of the actual innocence finding by the post-conviction relief court. See Durham v. McDonald's, 2011 OK 45, ¶ 9, 256 P.3d 64, 67. This standard is required for a number of reasons. First, upon vacation of the conviction, the presumption of innocence is restored to the petitioner. Second, in vacating the conviction, the court must have found the exonerating evidence to have sufficient probative force to overcome the jury's determination of guilt beyond a reasonable doubt. Third, this view of the evidence in determining a prima facie case better serves the "remedial nature" of a claim for compensation for wrongful conviction. Wilhoit, 2009 OK 83, ¶ 13, 226 P.3d at 686. It also liberally construes §§ 154(B) and 156(H) "so as to afford all the relief within the power of the court which the language of the act indicates the Legislature intended to grant." Id. ¶10 In Wilhoit, a case where a conviction was set aside prior to the effective date of §§ 154(B) and 156(H), this Court took a similar view of a prima facie case of innocence; we recognized that vacation of a conviction based on exonerating evidence is a sufficient showing of actual innocence to initiate the Risk Management claims process. Wilhoit, 2009 OK 83, ¶ 11, 242 P.3d at 685. One rationale for this approach was that the State is afforded an opportunity to present evidence in the claims process to rebut the petitioner's claim of innocence. Id. In the course of the Risk Management claims process for such claims, if actual innocence remains in doubt, the State's Risk Management representative may deny the claim and have a jury ultimately determine actual innocence as an element of a wrongful conviction claim. No good reason exists to subject post-effective date claims to a different and more difficult process. ¶11 This interpretation of the trial court's role, following post-conviction relief, places both pre-effective date claims (Risk Management) and post-effective date claims (Judicial Relief) on similar footing insofar as a threshold showing of actual innocence is concerned. Again, in doubtful cases in either category, the State's Risk Management representative can always deny the claim and have a jury determine whether there is clear and convincing evidence of actual innocence as an element of the wrongful conviction claim. ¶12 Based upon the foregoing considerations, we hold the trial court erred in denying the request of Sedrick Ramon Courtney for a threshold determination of actual innocence following the vacation of his criminal conviction in a post-conviction relief proceeding. More particularly, we hold the trial court erred in (1) ruling that Mr. Courtney had not presented clear and convincing evidence of his actual innocence in the face of the exonerating scientific evidence that supported the vacation of the criminal conviction, and (2) dismissing Mr. Courtney's request to determine actual innocence without prejudice to pursuing such relief in a court of general jurisdiction. ¶13 The determination of actual innocence is ancillary to a proceeding seeking judicial relief from a conviction and is to be made utilizing the evidence offered in support of such relief and other evidence. A court should view the evidence in a light most favorable to the petitioner, bearing in mind that actual innocence will be again examined in the claims process and may ultimately be determined by a jury. ¶14 Accordingly, we reverse the trial court's denial of Petitioner's request to determine actual innocence and remand with directions to redetermine this request consistent with the views expressed in this opinion. Petitioner is directed to dismiss the appeal he filed in the Court of Criminal Appeals. ORIGINAL JURISDICTION PREVIOUSLY ASSUMED; APPEAL TO THIS COURT OF THE ORDER DENYING REQUEST FOR DETERMINATION OF ACTUAL INNOCENCE CONSOLIDATED WITH THIS ORIGINAL PROCEEDING; ORDER DENYING REQUEST TO DETERMINE ACTUAL INNOCENCE REVERSED AND REMANDED WITH DIRECTIONS. ¶15 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COMBS, and GURICH, JJ., concur. ¶16 TAYLOR, J., dissenting. I would transfer this matter to the Court of Criminal Appeals. 22 O.S. 2011, § 1087.

c69fd806-4a3c-4184-ae15-2d5fa42e6022

Sheffer v. Buffalo Run Casino

oklahoma

Oklahoma Supreme Court

SHEFFER v. BUFFALO RUN CASINO, PTE, INC.2013 OK 77Case Number: 109265Decided: 09/24/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHARLES SHEFFER; JENNIFER SHEFFER; and J.S., a minor by and through his parents and next friends, Charles Sheffer and Jennifer Sheffer, Plaintiffs-Appellants,v.BUFFALO RUN CASINO, PTE, INC. and PEORIA TRIBE OF INDIANS of OKLAHOMA, Defendants-Appellees,andCAROLINA FORGE COMPANY, L.L.C., DAVID BILLUPS and WILLIAM GARRIS, III, Defendants. ON APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY,STATE OF OKLAHOMA,HONORABLE ROBERT G. HANEY ¶0 Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when their 18-wheeler tractor trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Plaintiffs sued Carolina Forge on theories of respondeat superior and negligent entrustment. They also sued the Buffalo Run Casino, the Peoria Tribe of Indians of Oklahoma, and PTE, Inc. for dram-shop liability. The trial court granted summary judgment in favor of Carolina Forge, finding as a matter of law Carolina Forge was not liable for its employees' actions under a theory of respondeat superior and did not negligently entrust the rental vehicle to its employees. The trial court also dismissed, sua sponte, the Buffalo Run Casino, PTE, Inc., and the Peoria Tribe of Indians of Oklahoma, determining that injunctions issued by the Honorable Lee R. West in the Western District of Oklahoma in Case No. 10-CV-00050-W and Case No. 10-CV-01339-W, prohibited suit for any tort claims against a tribe or a tribal entity. Plaintiffs appealed both orders, and we retained the appeals. In Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544, we reversed the trial court's grant of summary judgment to Carolina Forge and found issues of material fact precluded summary judgment on both the respondeat superior and negligent entrustment claims. In the present case, we find the Peoria Tribe is immune from suit in state court for compact-based tort claims because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. We also hold that because Congress has not expressly abrogated tribal immunity from private, state court dram-shop claims and because the Peoria Tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from dram-shop liability in state court. The trial court's dismissal of the Peoria Tribe and its entities is affirmed. AFFIRMED Ed Hershewe, Joplin, Missouri, Attorney for Plaintiffs-AppellantsTrevor Hughes & J. Christopher Davis, Johnson & Jones P.C., Tulsa, Oklahoma, Attorneys for Plaintiffs-AppellantsRichard L. Yohn, Legal Aid Services of Oklahoma, Inc., McAlester, Oklahoma, Attorney for Plaintiffs-AppellantsJon Brightmire & Stuart Campbell, Doerner, Saunders, Daniel & Anderson L.L.P., Tulsa, Oklahoma, Attorneys for Defendants-Appellees Peoria Tribe of Indians of Oklahoma GURICH, J. Facts & Procedural History ¶1 This case involves an automobile accident between Plaintiffs and two employees of Carolina Forge Company, L.L.C, the Appellee in Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544. While the facts and procedural history of the case are set out in detail in that opinion, in short, Plaintiffs Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when a rental vehicle leased to employees of Carolina Forge collided with Plaintiffs' 18-wheeler tractor trailer. The driver of the rental vehicle, David Billups, was killed and his passenger, William Garris, was injured. ¶ 2 Plaintiffs sued Carolina Forge in the District Court of Ottawa County on theories of respondeat superior and negligent entrustment. They also sued the Buffalo Run Casino, the Peoria Tribe of Indians of Oklahoma, and PTE, Inc. ("Peoria Tribe") for dram-shop liability. The trial judge granted summary judgment in favor of Carolina Forge on both the respondeat superior and negligent entrustment claims. The trial court also dismissed, sua sponte, the Peoria Tribe because injunctions issued by the Honorable Lee R. West in the Western District of Oklahoma in Case No. 10-CV-00050-W1 and Case No. 10-CV-01339-W,2 prohibited suit "for any tort claims against a tribe or a tribal entity."3 Plaintiffs appealed, and we retained both appeals. In Sheffer v. Carolina Forge Co., 2013 OK 48, 306 P.3d 544, we reversed the trial court's grant of summary judgment to Carolina Forge and found issues of material fact precluded summary judgment on both the respondeat superior and negligent entrustment claims. In this opinion, we consider only the Plaintiffs' claims against the Peoria Tribe. Standard of Review ¶3 A determination of jurisdiction is a question of law. Seneca Tel. Co. v. Miami Tribe of Okla., 2011 OK 15, ¶ 3, 253 P.3d 53, 54. The standard of review for questions of law concerning the jurisdictional power of the trial court to act is de novo. Diliner v. Seneca-Cayuga Tribe of Okla., 2011 OK 61, ¶ 12, 258 P.3d 516, 519. De novo review involves a plenary, independent, and non-deferential examination of the trial court's rulings of law. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5, 293 P.3d 964, 966. Analysis Model Gaming Compact ¶4 Under the Indian Gaming Regulatory Act, state governments may negotiate a gaming compact with tribal governments so that tribes may conduct Class III Gaming on tribal lands. Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 11, 230 P.3d 488, 492. In 2004, Oklahoma voters approved Oklahoma State Question 712, which proposed the negotiated model gaming compact as an offer to federally recognized tribes in the State of Oklahoma to engage in Class III gaming on tribal lands under the terms and conditions of the proposed compact. Id. ¶ 13, 230 P.3d at 492. The model gaming compact is codified in the State-Tribal Gaming Act. 3A O.S. 2011 §§ 261-282. ¶5 Part 6 of the compact, which governs tort and prize claims by patrons of a casino, provides a limited waiver of tribal immunity and states in subsection C: "The tribe consents to suit against the enterprise in a court of competent jurisdiction with respect to a tort claim or prize claim if all requirements of paragraph 9 of subsection A or all requirements of paragraph 11 of subsection B of this Part have been met; provided that such consent shall be subject to the following additional conditional limitations."4 The compact does not define "court of competent jurisdiction"; however, it expressly provides in Part 9 that "[t]his Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction."5 ¶6 In early 2009, this Court asserted state court civil-adjudicatory jurisdiction over compact-based, Indian country tort lawsuits in Dye v. Choctaw Casino of Pocola, 2009 OK 52, 230 P.3d 507 (per curiam); Griffith v. Choctaw Casino of Pocola, 2009 OK 51, 230 P.3d 488 (per curiam); Cossey v. Cherokee Nation Enters., 2009 OK 6, 212 P.3d 447. In each of those cases, a divided Court held state courts were courts of competent jurisdiction as the term was used in the voter-approved model gaming compact. ¶7 In response to the decisions in Dye, Griffith, and Cossey, the Chickasaw and Choctaw Nations and the State of Oklahoma invoked the compact's dispute resolution clause and entered into a joint agreement to arbitrate.6 The parties agreed to submit to binding arbitral interpretation the issue of whether, "under the Choctaw Nation and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact, jurisdiction over all Compact based tort claim and/or prize claim lawsuits lies exclusively in Choctaw Nation or Chickasaw Nation forums."7 ¶8 In August 2009, the arbitrator for the dispute found the term "court of competent jurisdiction" as used in Part 6(C) of the Nations' compacts could not properly be interpreted to include the courts of the State of Oklahoma.8 Subsequent to the arbitrator's decision, the Nations sought to certify and enforce the arbitration award in federal district court as allowed for under Part 12(3) of the compact, which gives the federal district court exclusive jurisdiction to review "any arbitration award under paragraph 2 of this Part."9 The Nations also sought permanent injunctive relief in the federal district court, prohibiting Oklahoma state courts from exercising jurisdiction over any and all compact-based tort or prize claim lawsuits against the Nations.10 ¶9 The federal district court for the Western District of Oklahoma, in an order by the Honorable Lee R. West, agreed with the arbitrator and found Oklahoma state courts were not courts of competent jurisdiction as the term was used in the gaming compact, and any attempt by any Oklahoma state court to exercise jurisdiction over a compact-based tort or prize claim lawsuit against the Nations was a violation of the sovereign immunity of the tribes.11 The federal district court issued an order purportedly enjoining the State of Oklahoma, including the courts of this state, from asserting state civil-adjudicatory jurisdiction over compact-based tort or prize claim lawsuits against the Nations.12 Since the federal district court's decision in the Choctaw and Chickasaw Nations case, subsequent orders, involving other tribes who have submitted the same issue to arbitration, have been issued in Eastern Shawnee Tribe of Okla. v. Oklahoma, 10-CV-00459-W (W.D.Okla. July 1, 2010), Cherokee Nation v. Oklahoma, 10-CV-979-W (W.D.Okla. Nov. 22, 2010), Comanche Nation, Osage Nation, Delaware Nation, and Wichita and Affiliated Tribes v. Oklahoma, 10-CV-01339-W (W.D.Okla. Dec. 28, 2010), and Tonkawa Tribe of Okla. v. Oklahoma, 11-CV-782-W (W.D.Okla. Nov. 23, 2011). The orders issued in those cases also purportedly enjoin the courts of this state from exercising state civil-adjudicatory jurisdiction over compact-based tort or prize claim lawsuits involving such tribes.13 ¶10 The trial judge in the case before us took judicial notice of the orders entered by the federal district court and dismissed the Peoria Tribe from the case, finding because "Plaintiffs' claim is a tort arising on Indian land, the injunction currently in place by Judge West is to be followed by all State entities, including the judicial branch, for any tort claims against a tribe or a tribal entity."14 The Peoria Tribe asks this Court to affirm its dismissal because the gaming compact between the Peoria Tribe and the State of Oklahoma is identical to the gaming compact at issue in the above-mentioned federal court proceedings. As such, the tribe maintains it may not be sued in state court for compact-based tort claims. ¶11 Although the gaming compact between the Peoria Tribe and the State of Oklahoma is identical to the gaming compacts at issue in the above-mentioned federal court proceedings,15 the Peoria Tribe has not invoked the compact's dispute resolution clause and has not entered into a joint agreement to arbitrate this issue with the State of Oklahoma. No injunction has been entered enjoining the courts of this state from exercising civil-adjudicatory jurisdiction over compact-based tort or prize claim lawsuits involving the Peoria Tribe.16 ¶12 Regardless of whether the injunctions in the above-mentioned proceedings apply to the case before us or whether the federal district court has the power to enforce such injunctions,17 recent decisions from the federal courts of this state as well as the above-mentioned arbitration proceedings have caused us to reexamine our previous holdings in Dye, Griffith, and Cossey. After further consideration, we agree with the federal courts and the arbitrator that Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact with regard to compact-based tort or prize claims. The Executive Branch of the State of Oklahoma, specifically the Governor, has been and continues to be the party responsible for negotiating compacts with the sovereign nations of this state.18 Unless and until the State of Oklahoma renegotiates the model gaming compact to include courts of this state as courts of competent jurisdiction, the courts of this state shall refrain from exercising civil-adjudicatory jurisdiction over compact-based tort or prize claims involving tribes who have entered into the model gaming compact with the State of Oklahoma.19 ¶13 Congress provided in IGRA a "framework for the regulation of gaming activities on Indian lands which provides that in the exercise of its sovereign rights, unless a tribe affirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congress will not unilaterally impose or allow State jurisdiction on Indian lands for the regulation of Indian gaming activities." Muhammad v. Comanche Nation Casino, No. 09-CIV-968-D, 2010 WL 4365568, at *9 (citing S. Rep. 100-446, at 5-6, reprinted in 1988 U.S.C.C.A.N. at 3075). Only "an affirmative extension of state civil-adjudicatory jurisdiction by a tribal-state gaming compact will be sufficient" to expand state court jurisdiction to tribal gaming activities. Id. ¶14 Part 6 of the model gaming compact provides a limited waiver of tribal immunity and a tribe consents to suit for tort or prize claims in a "court of competent jurisdiction."20 Although, the compact does not define "court of competent jurisdiction," Part 9 of the compact provides: "[t]his Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction."21 ¶15 In Muhammad, 2010 WL 4365568, at *1, the Plaintiff filed suit in the District Court of Comanche County to recover damages for personal injuries suffered in a slip-and-fall accident while at the Comanche Nation Casino. Plaintiff asserted that Oklahoma's gaming compact with the Comanche Nation allowed her to sue the tribe in Oklahoma state court. Id. Defendant removed the case to federal court and argued that Oklahoma courts lacked jurisdiction over Plaintiff's tort action because jurisdiction was exclusively in the tribal courts of the Comanche Nation under the compact. Id. ¶16 The Honorable Timothy D. DeGiusti of the Western District of Oklahoma found the gaming compact between Oklahoma and the Comanche Nation did not waive tribal sovereign immunity from suit in Oklahoma state courts. Id. at *11. The court noted the compact was governed by IGRA and "its strong policy of promoting tribal self-government." Id. at *10. The court found: "Nothing in the Compact permits an inference that the tribe intended 'a court of competent jurisdiction to include state courts.' Parts 5 and 6 of the Compact specifically provide for the application of tribal rules and regulations to tort claims by casino patrons against the tribal gaming enterprise, and those regulations limit actions to tribal court." Id. ¶17 In Harris v. Muscogee (Creek) Nation, No. 11-CV-654-GKF-FHM, 2012 WL 2279340, at *1 (N.D.Okla. June 18, 2012), the Plaintiff, a customer of River Spirit Casino, was injured in a slip-and-fall accident at the casino. She filed suit in the District Court of Tulsa County and sought to invoke Oklahoma's gaming compact with the Creek Nation. Id. The Creek Nation removed the suit to federal court and argued jurisdiction for Plaintiff's tort claim was exclusively in the tribal courts of the Creek Nation under the compact. Id. ¶18 The Honorable Gregory Frizzell of the Northern District of Oklahoma held that "nowhere in Part 6 or any other part of the Compact does the tribe consent to extension of state civil-adjudicatory jurisdiction. Rather, the compact provides, 'This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.'" Id. at *4. The court found the compact between the Creek Nation and the State of Oklahoma did not waive the tribe's sovereign immunity against compact-based tort suits in Oklahoma state courts. Id. at *5. ¶19 On January 29, 2013, the Tenth Circuit issued an Order and Judgment in Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino, 508 F.App'x 821 (10th Cir. 2013), cert. denied, 133 S. Ct. 2038 (2013). In that case, Mr. Santana, a self-professed gambling addict, invoked Oklahoma's gaming compact with the Creek Nation to sue the tribe in Oklahoma state court. Id. at *1. Mr. Santana claimed the Creek Nation induced him to gamble at its casino, resulting in the tribe's unjust enrichment. Id. The Creek Nation removed the suit to federal court and argued that its compact with the State of Oklahoma did not extend jurisdiction to Oklahoma state courts to hear civil tort claims against the tribe because state courts were not "courts of competent jurisdiction" under the compact. Id. The Honorable James H. Payne of the Northern District of Oklahoma dismissed the Creek Nation and found nothing in the compact waived tribal immunity from civil tort suits brought in state or federal court.22 ¶20 A unanimous three-judge panel of the Tenth Circuit affirmed and found that "[a]though the compact does not define a 'court of competent jurisdiction,' it does expressly provide that '[t]his Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.'" Id. The Tenth Circuit held that "because there is no express grant of jurisdiction to hear compact-based tort suits against the Creek Nation in state court, the phrase 'court of competent jurisdiction' does not include Oklahoma's state courts." Id. at *2. In footnote 1, the Tenth Circuit recognized that this Court reached a different conclusion in Dye, 2009 OK 52, 230 P.3d 507, Griffith, 2009 OK 51, 230 P.3d 488, and Cossey, 2009 OK 6, 212 P.3d 447. Id. at *2 n.1. ¶21 Additionally, in Comanche Nation, the arbitrator specifically construed Part 9 of the compact: [b]ecause nowhere in any of the Tribes' Class III gaming Compacts is there any material tribal sovereign immunity waiver except "in a court of competent jurisdiction," and because Part 9 preserved, adopted, and incorporated by reference the jurisdictional status quo ante, there is no express waiver anywhere in the Compact[s] of any of the Tribes' sovereign immunity from any relevant Indian country-arising Class III casino-related lawsuit in any Oklahoma state court. Supplement to Record on Accelerated Appeal, Ex. 4 at 6 (emphasis added). ¶22 As the arbitrator pointed out and as the federal courts of this state have concluded, Part 9 of the gaming compact preserves the civil-adjudicatory jurisdiction status quo--that "states are generally presumed to lack jurisdiction in Indian Country." Santana, 508 F.App'x at 823 (citing California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 n.18 (1987)). Only an express grant of jurisdiction by Congress23 or adoption of Public Law 28024 will confer civil-adjudicatory jurisdiction to the State of Oklahoma. "It is undisputed that Oklahoma was not a state which was allowed to assert civil jurisdiction over Indian Tribes under Public Law 280." Cossey, 2009 OK 6, 212 P.3d 447 (Kauger, J., concurring in part/dissenting in part ¶ 26); Okla.Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 125 (1993) ("Oklahoma did not assume jurisdiction pursuant to Pub.L. 280."). And IGRA did not expressly grant civil-adjudicatory jurisdiction to the State of Oklahoma,25 but rather, included a provision "which allowed tribes and states to negotiate an allocation of jurisdiction to the states."26 ¶23 The intention of the parties to the negotiation of the model gaming compact is clear. The Governor of the State of Oklahoma did not negotiate an allocation of civil-adjudicatory jurisdiction to the courts of this state. In its order confirming the arbitrator's decision in Comanche Nation, the federal court pointed out that the Governor did not dispute any of the facts outlined by the Tribes in their Motion for Summary Judgment and did not assert any affirmative defenses or arguments precluding certification of the Arbitration Award. Supplement to Record on Accelerated Appeal, Ex. 4 at 6-7. The Governor instead stated in the response that "if Part 12 of the Tribes' Compacts, which authorizes the submission of disputes over the terms and conditions of the Compacts to arbitration, is valid, then the Arbitration Award should be deemed valid and certified." Id. (emphasis added).27 ¶24 Additionally, as the separate writing in Dye pointed out, the Governor of Oklahoma and the State Treasurer, the lead negotiators for the 2004 model gaming compact, "attached as exhibits to their Amicus Curiae brief filed on March 9, 2009, in Cossey, copies of sworn affidavits which indicate they negotiated and signed the compact with the intent that the phrase 'a court of competent jurisdiction' was not a provision intended to extend the jurisdiction of State courts. Rather, it was intended to preserve preexisting Tribal court jurisdiction over claims arising in Indian country against Indian Tribes." Dye, 2009 OK 52, 230 P.3d 507 (Kauger, J., concurring in part/dissenting in part ¶ 2 & n.2) (internal citations omitted) (emphasis added). ¶25 Other provisions in the compact support the conclusion that tribal courts and tribally designated forums have exclusive civil-adjudicatory jurisdiction over all compact-based tort or prize claim lawsuits. As the Tenth Circuit pointed out in Santana: Part 6(A) of the compact charges the tribe, not the state, with ensuring that patrons are afforded due process. See 3A Okla. Stat. Ann § 281, Part 6(A) ("The enterprise shall ensure that patrons of a facility are afforded due process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage."). Part 6(A)(4)-(10) establishes the procedure by which tort claims are filed with and processed by tribal officials. And Part 5(A) obligates the tribe to promulgate rules and regulations necessary to implement the compact. Santana, 508 F.App'x at 823. We hold the model gaming compact preserved the civil-adjudicatory jurisdictional status quo, and Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact "to adjudicate tort claims against Indian tribes for tribal activity on tribal land." Griffith, 2009 OK 51, 230 P.3d 488 (Reif, J., dissenting ¶ 4). To the extent Dye, Cossey, and Griffith conclude otherwise, they are overruled. Dram-Shop Liability ¶26 The Plaintiffs in the present case argue that regardless of whether we construe the compact to include the courts of the State of Oklahoma as courts of competent jurisdiction, the gaming compact does not apply to their dram-shop claim so they can pursue the claim in state court, relying on Bittle v. Bahe, 2008 OK 10, 192 P.3d 810. In response, the tribe maintains the compact is applicable to the dram-shop claim but asks this Court to overrule Bittle. The tribe's argument is twofold--Congress has not expressly and unequivocally abrogated tribal sovereign immunity from private dram-shop actions and the tribe did not waive its sovereign immunity by applying for and receiving a state liquor license. ¶27 Bittle v. Bahe was decided in 2008. Shatona Bittle brought an action to recover damages for personal injuries suffered in a motor vehicle collision caused by the alleged negligence of Valentine Bahe. Id. ¶ 2, 192 P.3d at 813. Bittle alleged the defendants, Bahe and Val Tsosie, had been at the Thunderbird Entertainment Center, where employees of the casino served alcoholic beverages to Bahe, who was obviously intoxicated. Id. ¶ 3, 192 P.3d at 813. Bittle also alleged the Absentee Shawnee Tribe of Oklahoma, who owned the Thunderbird Entertainment Center, was liable under a theory of dram-shop liability. Id. ¶28 The trial court dismissed the tribe on sovereign immunity grounds, but this Court reversed and determined that Rice v. Rehner, 463 U.S. 713 (1983), in conjunction with 18 U.S.C. § 1161, abrogated any tribal immunity from suit in the area of alcoholic beverage laws. Bittle, 2008 OK 10, ¶ 37-38, 192 P.3d at 823. The Court also held the tribe waived its sovereign immunity when it applied for and received a mixed beverage license from the State of Oklahoma. Id. ¶ 53, 192 P.3d at 827. ¶29 In 2011, this Court issued opinions in Seneca Telephone Co. v. Miami Tribe of Oklahoma and Diliner v. Seneca-Cayuga Tribe of Oklahoma. In Seneca Telephone Co., 2011 OK 15, 253 P.3d 53, the Miami Tribe of Oklahoma, d/b/a White Loon Construction Company, performed excavation work for the Shawnee tribe. Id. ¶ 2, 53 P.3d at 54. During the excavation work, White Loon cut Seneca Telephone Company's underground telephone lines on four separate occasions damaging the underground telephone cables. Id. Seneca Telephone Company filed four separate small-claims suits against the Miami Tribe, alleging White Loon Construction was negligent in performing the work. Id. ¶ 6, 53 P.3d at 55. The Miami Tribe claimed sovereign immunity. Id. ¶ 2, 53 P.3d at 54. ¶30 This Court held the tribe did not waive its sovereign immunity and could not be sued for negligence in state court. The Court observed that the "harsh reality in the present case, [was] that Seneca did not have the opportunity to negotiate a waiver of the sovereign immunity with the negligent party, but was an innocent third party to the negligence of a tribal enterprise." Id. ¶ 8, 53 P.3d at 55. We acknowledged the result left Seneca Telephone Company without a remedy against the tribe for their damages even when the assertions of negligence by the tribal enterprise were correct. Id. ¶31 Although this Court expressed frustration with such a policy, we recognized Congress would have to pass legislation limiting the sovereign immunity of Indian tribes. Id. We reviewed the statute in question and found it "apparent that the United States Congress ha[d] not authorized suit against the Tribe in this matter." Id. ¶ 10, 53 P.3d at 56. We also explained "[w]aiver for a federally-recognized tribe to be sued must be unequivocal" and found the tribe had not unequivocally waived its sovereign immunity. Id. ¶ 5, 53 P.3d at 55. This Court held the tribe was immune from a negligence action in state court absent an express waiver by the tribe or express abrogation by Congress, and we warned businesses they must "condition the performance of a contract upon an express waiver of sovereign immunity" or "act at their own peril when dealing with [an Indian] tribe." Id. ¶ 6, 53 P.3d at 55.28 ¶32 In Diliner we upheld the sovereign immunity of the Seneca-Cayuga Tribe in a lawsuit stemming from the alleged breach of an employment contract. Diliner, 2011 OK 61, 258 P.3d 516. The Seneca-Cayuga Business Committee passed Resolution #27-072607, which stated the Chief of the Tribe was authorized to sign a three-year employment agreement between the Seneca-Cayuga Tribe of Oklahoma and tribal employees. Id. ¶ 5, 258 P.3d at 517-18. The Business Committee of the Tribe, at its regular business meeting, passed a resolution in an attempt to ratify Resolution #27-072607. Id. ¶ 6, 258 P.3d at 518. Resolution #46-081407 recited that the Business Committee had approved Resolution #27-072607 on July 26, 2007, which was authorization for the Chief to sign a three-year employment agreement with tribal employees, and that the Business Committee felt the action authorized by Resolution #27-072607 was in the best interest of the Tribe and its government, and of the Tribal Corporations. Id. The Chief entered into employment contracts with tribal employees for terms of three years. Id. ¶ 4, 258 P.3d at 517. The employment contracts contained a provision for limited waiver of sovereign immunity. Id. The plaintiffs were terminated from employment prior to the end of the three-year term and filed suit in the district court of Ottawa County to recover their base salaries until the end of the term. Id. ¶ 7, 258 P.3d at 518. The tribe moved to dismiss on the grounds of tribal sovereign immunity. Id. ¶33 This Court found that neither of the resolutions expressly ratified the contracts entered into by the Chief: "Resolution #27-072607 only authorized the Chief to sign a contract with tribal employees for a three-year term, in their present positions of employment and at their present salaries; Resolution #46-081407 ratified only the resolution, not the contracts." Id. ¶ 20, 258 P.3d at 520. Because under the tribe's constitution and by-laws the business committee had to waive tribal immunity by resolution, we found that waiver of sovereign immunity was neither expressed nor consented to by the tribe because no resolution was passed by the committee expressly waiving immunity in the employment contracts. Id. We held the tribe was immune from suit on the employment contract and reiterated that "[f]ederal law requires that the waiver of sovereign immunity be express and unequivocal; it cannot be implied." Id. ¶ 19, 258 P.3d at 520 (emphasis added).29 ¶34 In light of our holdings in Seneca Telephone Co. and Diliner, we reexamine the question of whether a tort claim allegedly arising from the negligent sale of alcohol to an intoxicated individual at a tribal casino subjects a tribe to state court jurisdiction. In Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, ¶ 24, 725 P.2d 300, 306, the seminal case creating a duty for a commercial vendor of alcohol, this Court rejected the doctrine of tavern owner nonliability and held that "public policy is better served by holding that the common law principles of negligence are applicable where a commercial vendor for on the premises consumption is shown to have sold or furnished intoxicating beverages to a person who was noticeably intoxicated." (emphasis added). A commercial vendor for on the premises consumption is under a duty to "exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party." Id. ¶ 18, 725 P.2d at 305. ¶35 In Copeland v. Tela Corp., 1999 OK 81, 996 P.2d 931, we reiterated the holding in Brigance and cited the elements of a common law negligence action as the standard for determining liability in a dram-shop action: "'(1) the existence of a duty on the part of the defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom.'" ¶36 In the case before us, the Plaintiffs allege the Peoria Tribe is liable for their injuries because prior to the accident, casino employees allegedly negligently served alcoholic beverages to patrons of the casino who were noticeably intoxicated. Plaintiffs argue the tribe is subject to this Court's dram-shop case law because the tribe is acting as a commercial vendor providing alcohol to patrons of its tribal casino. However, tribal sovereign "immunity applies to the tribe's commercial as well as governmental activities." Seneca Tel. Co., 2011 OK 15, ¶ 5, 253 P.3d at 55 (emphasis added). ¶37 It is well settled that states have the authority to require tribes that sell alcohol on tribal land to obtain a state liquor license to sell liquor for off-premises consumption. The United States Supreme Court discussed the regulation of alcohol on Indian land in Rice v. Rehner, 463 U.S. 713 (1983). Rice involved a federally licensed Indian trader who operated a general store on the Pala Reservation. Id. at 716. The Pala Tribe had adopted a tribal ordinance permitting the sale of liquor on the reservation under 18 U.S.C. § 1161, but the trader sought exemption from state liquor licensing requirements. Id. The question before the U.S. Supreme Court was very narrow--whether 18 U.S.C. § 1161 prohibited the State of California from requiring the trader "to obtain a state liquor license in order to sell liquor for off-premises consumption." Id. at 715. Because California sought regulatory authority over the issuance and administration of liquor licenses, Id. at 713, the Supreme Court analyzed the case under "the principles to be applied in determining whether state regulation of activities in Indian country is pre-empted" by federal law. Id. at 718 (emphasis added). ¶38 The Court explained "[t]he role of tribal sovereignty in pre-emption analysis varies in accordance with the particular 'notions of sovereignty that have developed from historical traditions of tribal independence.'" Id. at 719. The Court went on: When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect "except where Congress has expressly provided that State laws shall apply. . . ." If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interests so requires, our pre-emption analysis may accord less weight to the "backdrop" of tribal sovereignty. Id. at 720 (internal citations omitted). ¶39 In determining the "backdrop" of tribal sovereignty, the Court examined the history of liquor regulation in Indian Country and concluded that "tradition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians." Id. at 722. The Court noted that "[t]he colonists regulated Indian liquor trading before this Nation was formed," and that Congress had "imposed complete prohibition by 1832." Id. at 722. The Court went on to find there was a "historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country." Id. at 724. The Court concluded that "'[t]he legislative history of § 1161 indicates both that Congress intended to remove federal prohibition on the sale and use of alcohol imposed on Indians in 1832, and that Congress intended that state laws would apply of their own force to govern tribal liquor transactions as long as the tribe itself approved these transactions by enacting an ordinance." Id. at 726. The Rice Court held 18 U.S.C. § 1161 authorized California to require a federally licensed Indian trader operating a store on a reservation to obtain a state liquor license to sell alcohol for off-premises consumption. Id. at 715-16, 733-34. ¶40 Although the sale of alcohol was involved in Rice, its holding is limited to a regulatory jurisdictional analysis and is not dispositive of a private dram-shop action against an Indian tribe in state court.30 In Rice, the Pala Tribe was not a party to the case, the tribe's sovereign immunity was not at issue, and neither the State of California nor a private citizen of that state was attempting to assert state civil-adjudicatory jurisdiction over the tribe. In contrast, a dram-shop action against a tribe is a tort where a private party attempts to assert state court civil-adjudicatory jurisdiction over the tribe--governmental regulation of the seller of alcohol is not an element of a dram-shop action. In the present case, the Peoria Tribe is a party to the case, and its sovereign immunity is directly at issue. The state of Oklahoma is not involved in this case and is not attempting to assert any type of jurisdiction over the Peoria tribe. ¶41 After further consideration of this issue, we can find no articulable reason to treat a private dram-shop action against a tribe in state court any differently than a tort or contract claim against a tribe in state court because the sale of alcohol is involved. A "tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Diliner, 2011 OK 61, ¶ 12, 258 P.3d at 519; Seneca Tel. Co., 2011 OK 15, ¶ 5, 253 P.3d at 55. ¶42 Congress has not expressly abrogated tribal immunity in private dram-shop claims. Before 18 U.S.C. § 1161 was enacted, the sale and use of alcohol on Indian land was prohibited by the federal government. Rice, 463 U.S. at 726. Section 1161 was enacted "to eliminate federal prohibition because it was discriminatory and had a detrimental effect on Indians." Id. at 727. It was "intended to eliminate all of the sections in the statutes which discriminate against Indians" while at the same time not interfere with state laws and "provide opportunity for the tribes to have prohibition on the reservation if they wish to, if it is not covered by State law." Id. Section 1161 provides: The provisions of sections 1154, 1156, 3113, 3488, and 3669 of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior and published in the Federal Register. 18 U.S.C. § 1161. ¶43 Section 1161 does not demonstrate Congressional intent to subject Indian tribes to private dram-shop suits.31 Although it requires conformity with state law and tribal ordinance, § 1161 provides no mechanism for enforcement of state law, either by a state or a private party, if the tribe violates state law. Nowhere in the text of § 1161 is there any mention of tribal immunity from suit, much less an unequivocal abrogation of tribal immunity with respect to private lawsuits alleging an Indian tribe has violated state dram-shop laws. We find Congress has not expressly abrogated the Peoria Tribe's immunity in private dram-shop claims. ¶44 We also find the Peoria Tribe did not expressly waive its sovereign immunity when it applied for and received a state liquor license. In the present case, although the Peoria Tribe admits in its brief that it applied for and received a liquor license from the State of Oklahoma, the record is void of any evidence that the tribe expressly and unequivocally waived its immunity when it applied for and received a state liquor license. Neither the liquor license nor the application for the liquor license has been included in our record. ¶45 Assuming, as the parties do, that the license application in this case states the applicant will "not violate any of the laws of the United States, the State of Oklahoma, or applicable municipal ordinances,"32 there was no waiver of sovereign immunity by the Peoria Tribe when it applied for and received a state liquor license. Applying for and accepting a state liquor license "is nothing more than a promise to comply with state liquor laws, not a voluntary waiver of sovereign immunity for private party lawsuits." Bittle, 2008 OK 10, 192 P.3d 810 (Kauger, J., dissenting ¶ 36).33 A determination to the contrary amounts to an implied waiver of sovereign immunity, which we expressly rejected in Diliner, 2011 OK 61, ¶ 19, 258 P.3d at 520. ¶46 We hold the Peoria Tribe is immune from dram-shop liability in state court, and in doing so, align ourselves with all other courts addressing this issue34--most notably, the United States Court of Appeals for the Eleventh Circuit. In Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224, 1226 (11th Cir. 2012), cert. denied, 133 S. Ct. 663 (2012), Mr. Furry, as personal representative of the estate of his daughter Tatiana Furry, complained that the Miccosukee Tribe violated 18 U.S.C. § 1161 and Florida's dram-shop law by knowingly serving excessive amounts of alcohol to his daughter. Id. After allegedly being served excessive amounts of alcohol, the daughter got in her car, drove off while intoxicated, and ended up in a fatal head-on collision with another vehicle on a highway just outside Miami, Florida. Id. at 1227. Mr. Furry filed suit in federal district court in Florida, and the Miccosukee Tribe moved to dismiss the complaint on the jurisdictional ground that it was immune from suit under the doctrine of tribal sovereign immunity. Id. The district court dismissed the tribe on sovereign immunity grounds. Id. ¶47 On appeal to the Eleventh Circuit, Mr. Furry claimed "18 U.S.C. 1161, read in concert with the Supreme Court's decision in [Rice v.] Rehner, establishe[d] that Congress has subjected the tribes to private tort actions." Id. at 1230. The Eleventh Circuit rejected this argument and found "[t]he Supreme Court has made clear that a suit against an Indian tribe is barred unless the tribe has clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity." Id. at 1226. The court found Rice v. Rehner was not dispositive because "the Supreme Court was speaking to a wholly different issue" in that case, and "[n]otably absent from Rehner . . . was an analysis of tribal immunity from suit." Id. at 1230-31. The court also held that "[w]hile § 1161 requires conformity with state law and tribal ordinance, it says nothing at all about the means of enforcement if the tribe violates state law." Id. at 1231.35 ¶48 Mr. Furry also argued the Miccosukee Tribe waived its immunity from private tort actions by applying for and receiving a state liquor license. The Eleventh Circuit rejected this argument as well and found that "waiver may not be inferred or implied from a tribe's conduct," and "[a]t no point in the liquor license application or the accompanying affidavit did the Miccosukee Tribe waive its immunity or consent to be subject to suit of any kind, much less to a private dram shop action." Id. at 1235. The Eleventh Circuit concluded that the doctrine of tribal sovereign immunity "remains the law of the land until Congress or the Supreme Court tells us otherwise." 36 ¶49 We agree. "While Congress and the United States Supreme Court have determined that a state may regulate and license alcoholic beverages on Indian land, neither has addressed the waiver of tribal sovereignty immunity from private dram-shop actions in state court."37 Additionally, the State of Oklahoma has not negotiated the allocation of civil-adjudicatory jurisdiction to the courts of this state through the model gaming compact and has not conditioned the granting of a liquor license to a tribal gaming enterprise on an express waiver of sovereign immunity. Until such actions are taken, the tribes and their gaming enterprise are entitled to assert sovereign immunity when sued in state court for dram-shop liability.38 Conclusion ¶50 We hold the Peoria Tribe is immune from compact-based tort or prize claims in state court because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. To the extent Dye, 2009 OK 52, 230 P.3d 507, Griffith, 2009 OK 51, 230 P.3d 488, and Cossey, 2009 OK 6, 212 P.3d 447 conclude otherwise, they are overruled. We also hold that because Congress has not expressly abrogated tribal immunity from private, state court dram-shop claims and because the record is void of any evidence that the Peoria Tribe expressly and unequivocally waived its immunity when it applied for and received a state liquor license, the tribe is immune from dram-shop liability in state court. Bittle v. Bahe, 2008 OK 10, 192 P.3d 810, is overruled. The trial court's dismissal of the Peoria Tribe and its entities is affirmed. AFFIRMED ¶51 Reif, V.C.J., Kauger, Edmondson, Combs and Gurich, JJ., concur; ¶52 Colbert, C.J., Watt (by separate writing), Winchester and Taylor, JJ., dissent; ¶ 53 Taylor, J., with whom Winchester, J., joins, dissenting Over the past century, the United States Supreme Court, with little analysis and almost by accident, developed the doctrine of tribal immunity to protect nascent tribal governments and tribal self-governance from encroachments by the States; and some fifteen years ago, the High Court expressly doubted its wisdom in the modern economy where the immunity can harm those who are unaware they are dealing with a tribe, particularly tort victims. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 756, 758, 118 S. Ct. 1700, 1703, 1704. Without any compelling reason or precedential authority, today's opinion expands the federal judge-made default doctrine of tribal immunity at the State's expense, diminishing the authority of the state courts and wiping out state law protections for its citizens harmed by tribal commercial activities. I must respectfully dissent. FOOTNOTES 1 Choctaw Nation of Okla. and Chickasaw Nation v. Oklahoma, 10-CV-00050-W, 2010 WL 5798663 (W.D.Okla. June 29, 2010). 2 Comanche Nation, Osage Nation, Delaware Nation, and Wichita and Affiliated Tribes v. Oklahoma, 10-CV-01339-W (W.D.Okla. Dec. 28, 2010). 3 Nunc Pro Tunc Order to Correct Order Dismissing Defendants, Peoria Tribe of Indians of Oklahoma, Buffalo Run Casino and PTE, Inc. at 2. 4 Supplement to Record on Accelerated Appeal, Ex. 6 at 28 (emphasis added). 5 Id. at 37. 6 Part 12 of the compact, entitled "Dispute Resolution" provides in part: In the event that either party to this Compact believes that the other party has failed to comply with any requirement of this Compact, or in the event of any dispute hereunder, including, but not limited to, a dispute over the proper interpretation of the terms and conditions of this Compact, the following procedures may be invoked[.] Supplement to Record on Accelerated Appeal, Ex. 6 at 50. Under Part 12(2) "either party may refer a dispute arising under this Compact to arbitration . . . ." Id. at 51. "On July 20, 2009, the Nations and the state of Oklahoma executed a Joint Referral to Binding Arbitration of Disputes Under and/or Arising From the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact." Choctaw Nation of Okla., 2010 WL 5798663, at *4. 7 Id. 8 Id. The arbitrator for the dispute was the Honorable Layn R. Phillips. Id. 9 Id. at *1. See also Supplement to Record on Accelerated Appeal, Ex. 6 at 52 (emphasis added). 10 Id. 11 Id. Although the Choctaw and Chickasaw Nations case was appealed to the United States Court of Appeals for the Tenth Circuit, it was subsequently dismissed by the parties. See Order Choctaw Nation of Okla. and Chickasaw Nation v. Oklahoma, 10-6150 (10th Cir. Nov. 22, 2010). 12 Id. at * 5. 13 None of those orders were appealed. 14 Nunc Pro Tunc Order to Correct Order Dismissing Defendants, Peoria Tribe of Indians of Oklahoma, Buffalo Run Casino and PTE, Inc. at 2. 15 Supplement to Record on Accelerated Appeal, Ex. 5. The Peoria Tribe passed Resolution GLSR-12-11-04-A authorizing the tribe to enter into the gaming compact with the State of Oklahoma. Id. The Peoria Tribe and the State of Oklahoma entered into the Model Tribal Gaming Compact on December 14, 2004. Id. 16 The injunctions entered in the above-mentioned federal court proceedings are not directly implicated in the case before us because the injunctions specify only the tribes involved in each of those proceedings. For example, in the Choctaw Nation and Chickasaw Nation proceeding, the court purportedly enjoined the State of Oklahoma, including the courts of this state, "from asserting civil-adjudicatory jurisdiction over Compact-based tort claim and/or prize claim lawsuits against the Nations." Id. Ex. 2, at 9 (emphasis added). "The Nations" referred only to the Chickasaw and Choctaw Nations. Id. at 1. 17 As mentioned above, the model gaming compact gives the federal district court exclusive jurisdiction to review an arbitrator's decision. Id. Ex. 6 at 52. As such, the federal district court had jurisdiction to conduct a de novo review of the award. Id. Upon review, the federal district court certified the award and issued an order enjoining the courts of this state from assuming civil-adjudicatory jurisdiction over compact-based tort or prize claims. Choctaw Nation, 2010 WL 5798663, at *5. Although the federal court may have had the authority to enjoin the courts of this state pursuant to the terms of the compact, whether the federal court actually has the power to enforce the injunctions against the courts of this state is a completely different issue. Because today's opinion effectively renders the injunctions moot, we need not address this issue. 18 See Okla. Const. art. VI, § 8 ("The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, . . ." ); Okla. Const. art. VI, § 2 ("The Supreme Executive power shall be vested in a Chief Magistrate, who shall be styled 'The Governor of the State of Oklahoma.'"); 3A O.S. 2011 § 280 ("The State of Oklahoma through the concurrence of the Governor after considering the executive prerogatives of that office and the power to negotiate the terms of a compact between the state and a tribe . . . .") (emphasis added). 19 The State of Oklahoma and tribal representatives specifically negotiated a dispute resolution clause with the goal of "resolv[ing] all disputes amicably and voluntarily whenever possible." Supplement to Record on Accelerated Appeal, Ex. 6 at 50. Arbitration was the method of dispute resolution chosen by the negotiating parties and was used by the state and the above-mentioned tribes in resolving the ambiguity surrounding the "court of competent jurisdiction" phrase. The federal district court, without objection from the State of Oklahoma, certified the arbitration award, amicably resolving the dispute. The dispute resolution method chosen by the negotiating parties and the subsequent decision by the arbitrator deserves this Court's deference. See Nitro-Lift Technologies L.L.C. v. Howard, 133 S. Ct. 500, 503 (2012). Additionally, as discussed below, the federal courts of this state have concluded that Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact. Although we are not bound by those decisions, in the interest of "achieving harmony between the state and federal courts within our state" in regard to the interpretation of the model gaming compact, we must agree that Oklahoma state courts are not courts of competent jurisdiction to exercise jurisdiction over compact-based tort or prize claims. Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 30, 977 P.2d 1040, 1052. 20 Supplement to Record on Accelerated Appeal, Ex. 6 at 21. 21 Id. at 37. 22 Id. See also Santana v. Muscogee (Creek) Nation, No. 11-CV-782-JHP-PJC, 2012 WL 896243 (N.D.Okla. March 15, 2012). 23 "Congress can and does decide whether the State of Oklahoma may assert civil jurisdiction over Indian tribes, notwithstanding the assertion that 'adjudicatory jurisdiction is constitutionally vested in our state courts.'" Dye, 2009 OK 52, 230 P.3d 507 (Kauger, J., concurring in part/dissenting in part ¶ 11) (citing the federal Indian Child Welfare Act and the Indian Gaming Regulatory Act as examples). See also Muhammad, 2010 WL 4365568, at *9 (finding that state courts "have no authority over conduct by a tribal entity occurring on tribal land unless such authority is expressly granted to them"); Williams v. Lee, 358 U.S. 217, 221 (1959) (stating that when "Congress has wished the states to exercise" civil-adjudicatory or criminal jurisdiction, it has expressly granted them the power to do so). 24 "Pub.L. 280 gave federal consent to the assumption of state civil and criminal jurisdiction over Indian country and provided the procedures by which such an assumption could be made. As originally enacted, Pub.L. 280 did not require the States to obtain the consent of affected Indian tribes before assuming jurisdiction over them, but Title IV of the Civil Rights Act of 1968 amended Pub.L. 280 to require that all subsequent assertions of jurisdiction be preceded by tribal consent." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 879 (1986) (internal citations omitted). 25 Dye, 2009 OK 52, 230 P.3d 507 (Reif, J., dissenting ¶ 4) ("[T]he Federal Indian Gaming Act does not involve a Congressional delegation of power to the State of Oklahoma."). 26 Dye, 2009 OK 52, 230 P.3d 507 (Kauger, J., concurring in part/dissenting in part ¶ 12) (citing 25 U.S.C § 2710(d)(3)(C)). 27 The federal court found that "Part 12, the dispute-resolution clause of the Tribes' Compacts is valid, thereby making arbitration the proper forum to interpret the phrase 'court of competent jurisdiction' as used in the Tribes' Compacts." Supplement to Record on Accelerated Appeal, Ex. 4 at 7. 28 Seneca Telephone Co. was a 7-2 decision. 29 Seven Justices also concurred in the Diliner decision. 30 Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1233 (11th Cir. 2012) (finding that "the composite of Furry's argument would require us to ignore the fact that the Supreme Court [in Rice] was speaking to a wholly different issue"); Durante v. Mohegan Tribal Gaming Auth., No. X04HHDCV116022130S, 2012 WL 1292655, at *5 (Sup. Ct. Conn. 2012) (finding Rice inapplicable because of "the distinction between subjecting a tribe to state regulation and permitting it to be sued"); Filer v. Tohono, 129 P.3d 78, 84 (Ariz. Ct. App. 2006) (finding Rice's broad language "must be viewed in context" and that Rice did not decide, and "certainly did not hold that California, let alone its private citizens, could sue the tribe in state court" when the action had some connection to the state's regulation of alcohol); Foxworthy v. Puyallup Tribe of Indians Ass'n, 169 P.3d 53, 58 (Wash. Ct. App. 2007) (finding that Rice's holding was result of "long-standing lack of tribal control over alcohol, which had always been subject to regulation by some non-tribal governmental entity--initially the federal government and later the states" but that there was "no analogous legislative history supporting the type of private cause of action that Foxworthy advocates"); Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854, (Tex. App. 1997) (finding Rice inapplicable and determining that tribal sovereign immunity was not waived "for a private suit brought under the Texas Dram Shop Act"). 31 Furry, 685 F.3d at 1233 ("Congressional enactment of 18 U.S.C. § 1161 hardly demonstrates an 'unmistakably clear' intention to subject the Indian tribes to private tort suits."). 32 Bittle, 2008 OK 10, ¶ 48, 192 P.3d at 826. 33 Recent decisions from the Tenth Circuit and Sixth Circuit also refute the idea that a tribe's agreement to comply with a specific law is an implicit waiver of sovereign immunity. See Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1153 (10th Cir. 2011) (holding the tribe's agreement to comply with Title VII, and similar agreements to comply with other federal statutes, might have "convey[ed] a promise not to discriminate, but . . . in no way constitute[d] an express and unequivocal waiver of sovereign immunity and consent to be sued in federal court"); Memphis Biofuels v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 920 (6th Cir. 2009) (holding the tribe's act of incorporating under Section 17 of the Indian Reorganization Act was not an express waiver of sovereign immunity when the statute was silent as to whether incorporated tribes under Section 17 have sovereign immunity). 34 Durante, 2012 WL 1292655, at *5 (finding the Mohegan tribe immune from a private dram-shop claim); Foxworthy, 169 P.3d 53, 59 (finding the Puyallup tribe was immune from dram-shop liability in state court); Filer, 129 P.3d 78, 84 (concluding Arizona state courts lacked jurisdiction to adjudicate a private dram-shop action against the Tohono O'Odham Nation); Holguin, 954 S.W.2d 843, 854 (finding Ysleta Del Sur Pueblo's sovereign immunity was not waived "for a private suit brought under the Texas Dram Shop Act"). 35 Mr. Furry relied heavily on this Court's 2008 decision in Bittle in an attempt to convince the Eleventh Circuit to reverse the district court's dismissal of the tribe. However, the Eleventh Circuit refused to follow Bittle: Notwithstanding the admonition of the United States Supreme Court in Kiowa Tribe that "[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them," the Oklahoma Supreme Court determined that private tort actions to enforce compliance with state liquor laws were permissible because the "state law remedy to recover money damages furthers the legitimate objectives of the state's liquor laws." Although the Oklahoma Supreme Court's analysis does not bind this Court in any way, we also find it unpersuasive and inconsistent with precedents from this Court and the United States Supreme Court, which have established that congressional abrogation of tribal immunity must be express and unequivocal. Id. at 1234, n.7 (internal citations omitted) (emphasis added). 36 Id. at 1237. While pronouncement on a federal-law question by an inferior federal court is not binding on this Court, it is persuasive and instructive. Mehdipour v. State ex rel. Dept. of Corrs., 2004 OK 19, ¶ 18, 90 P.3d 546, 553; Phillips v. Williams, 1980 OK 25, ¶ 10, 608 P.2d 1131, 1135. "[T]ribal immunity is a matter of federal law." Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 759 (1998). 37 Bittle, 2008 OK 10, 192 P.3d 810 (Kauger, J., dissenting ¶ 37). 38 Plaintiffs' dram-shop claim against the tribe is precluded in state court because Oklahoma state courts are not courts of competent jurisdiction as the term is used in the model gaming compact, Congress has not expressly abrogated tribal immunity from private, state-court dram shop claims, and the Peoria Tribe did not expressly and unequivocally waive its immunity when it applied for and received a state liquor license. As such, we need not decide whether a dram-shop claim against a tribe is considered a compact-based tort claim under the model gaming compact. WATT, J., with whom COLBERT, C.J., WINCHESTER and TAYLOR, JJ. join, dissenting: ¶1 I respectfully dissent on two grounds. First, it is my opinion that Griffith, Dye, and Cossey remain good law. ¶2 It should be made clear we held in Cossey that state courts were "courts of competent jurisdiction." Cossey did not hold that tribal courts could not hear tort cases arising from injuries incurred at tribal-owned casinos under a gaming compact. However, we did recognize that two sovereigns met to negotiate a compact which resulted in a lack of specificity as to naming a particular "court of competent jurisdiction." Congress enacted the IGRA, 25 U.S.C. §§2701-2721; 18 U.S.C. 1166-1168 (2000), which authorized the states and the tribes to negotiate the terms of the compact on numerous subjects and "any other subjects that are directly related to the operation of gaming activities." 25 U.S.C. §2710(d)(3)(C)(vii). The authority to specify the court in which jurisdiction would rest was, therefore, given to both negotiating parties. Neither in the IGRA nor the compact is there any prohibition in specifying what court hears tort claims. The Tribe and the State, both sovereigns, negotiated a compact, and no arguments were presented that there was unfair bargaining power held by one or the other of these parties. Indeed, the Compact, Part 6, incorporates the Oklahoma Governmental Tort Claims Act as a liability limit reference point and the procedure for initiating claims under the compact. If only tribal courts were ever contemplated, as disingenuously argued after the case was submitted to this Court on appeal from a certified interlocutory order, why did these negotiating parties not specify "tribal courts" as the only possible tribunals? At the time Cossey was decided, this Court carefully considered whether our holding would in any way jeopardize the Tribes' ability to self-govern, as it relates to matters tribes always retain as a matter of their inherent sovereignty. These powers involve the relations among members of a tribe. In deciding our holding did not infringe upon those tribal powers, we cited Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L.Ed.2d (1981), describing them: Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. . . But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. [citations omitted] ¶3 The Supreme Court distinguished the above from those powers of sovereignty which have been divested. See Montana v. U.S., 450 U.S. at 564: The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe . . . . ¶4 Part 9 of the Compact states: "This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction." Thus, at the time the Tribe and the State began negotiating the compact, the law already implied divestiture of sovereign immunity between the Tribe and non-members of the Tribe. Never was it contemplated that the tribe's rights to govern itself and members of the tribe would be infringed upon by negotiating the compact. On the other hand, negotiations between two equal sovereigns assumes equal bargaining power and equal responsibility for specifying terms for the compact, particularly when the Tribe is negotiating with "nonmembers of the tribe." Moreover, Congress provided all tribes with the ability, through the IGRA, to negotiate a suitable compact with the states in order to benefit the Tribe financially. Holding the Tribe to the benefit of its bargain under the compact did not divest the Tribe of its inherent sovereignty to remain in control of its tribal powers to govern itself and its members. ¶5 It is clear that the Tribe gave a limited consent to suit for patron tort claims under the compacts, with a limit placed on the Tribe's total liability. Without more specificity as to where tort claims would be litigated, this limited consent to suit was left open as to forum, indicating the parties knew more than one choice of forums was available. The fact the compacts did not state the precise forum renders the choice of a state court forum equally as valid as a tribal court. There are no "magic words" required. See C & L Enterprises v. Citizen Band of Potawatomi Indian Tribe, 532 U.S. 411, 121 S. Ct. 1589, 149 L. Ed. 2d 623 (2001). ¶6 Even more unsettling to me is the majority's willingness to relinquish this Court's jurisdiction to the federal courts. We have acknowledged that we are bound by decisions of the United States Supreme Court, by virtue of the Supremacy Clause, and must conform to extant Supreme Court jurisprudence. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶30, 977 P.2d 1040, 1052. However, we have also recognized that "nothing in the concept of supremacy or in any other principle of law requires subordination of state courts to the inferior federal courts." Akin, 1998 OK at ¶30, 977 P.2d at 1052, citing A.L. Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S. Ct. 838, 846 (1993) (Thomas, J., concurring). State courts may promulgate judicial decisions grounded in their own interpretation of federal law. Akin, 1998 OK at 1052, citing ASARCO, Inc. v. Kadish, 490 U.S. 605, 617, 109 S. Ct. 2037, 2045, 104 L. Ed. 2d 696 (1989). While we pay voluntary deference to the pronouncements from our circuit, compelling reason to depart from our commitment to comity exists when an inferior federal court interprets a Supreme Court decision in a way that is erroneous and where following it would be to perpetuate error. We said in Akin: Our independent obligation correctly to interpret Supreme Court decisions is of greater importance than the object, desirable as it is, of achieving harmony between state and federal courts within our state. 1998 OK 102, §30, 977 P.3d at 1052. ¶7 The majority has cited eight unpublished cases1 from federal courts, other than the U.S. Supreme Court, to support its position that the compacts did not waive the tribe's sovereign immunity against tort suits in Oklahoma state courts. These decisions are not binding on this Court. In one case cited,2 the U.S. Supreme Court denied certiorari. However, denial of certiorari by the United States Supreme Court does not constitute an expression on the merits of the case,3 or make the lower court's decision the supreme law of the land.4 ¶8 We are not bound by the decisions of inferior federal courts, and we are also not governed by them. This Court is the highest court of Oklahoma with concurrent jurisdiction to consider cases arising from state or federal law. The injunction, issued by an inferior federal court against this Court and all courts of this State, from considering tort claims under Indian gaming compacts is an extra-jurisdictional order. The Supremacy Clause is not properly invoked. We exercised our jurisdiction to interpret federal law as it affects the jurisdiction of all courts of this State, as we are authorized to do. Akin, supra, 1998 OK at 1052, citing ASARCO, Inc. v. Kadish, supra. Only when, and if, the United States Supreme Court holds our state courts are not "courts of competent jurisdiction" for purposes of litigating patron tort claims arising from gaming compacts, will I concede otherwise. For the reasons expressed above, I respectfully dissent to this Court's pronouncement in the majority opinion. FOOTNOTES 1 Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino, 12-5046, 2013 WL 323223 (10th Cir. Jan. 29, 2013), cert. denied, 2013 WL 1194144 (Apr. 29, 2013); Harris v. Muscogee (Creek) Nation, 11-CV-654-GKF-FHM, 2012 WL 2279340 (N.D. Okla. June 18, 2012); Tonkawa Tribe of Oklahoma v. Oklahoma, 11-CV-782-W (W.D. Okla. Nov. 23, 2011); Comanche Nation, Osage Nation, Delaware Nation, and Wichita and Affiliated Tribes v. Oklahoma, 10-CV-01339-W (W.D. Okla. Dec. 28, 2010); Cherokee Nation v. Oklahoma, 10-CV-979-W (W.D. Okla. Nov. 22, 2010); Eastern Shawnee Tribe of Oklahoma v. Oklahoma, 10-CV-00459-W (W.D. Okla. July 1, 2010); Choctaw Nation of Oklahoma; Chickasaw Nation v. Oklahoma, 10-CV-00050-W, 2010 WL 5798663 (W.D. Okla. June 29, 2010); and Muhammad v. Comanche Nation Casino, 09-CIV-968-D, 2010 WL 4365568. 2 The U.S. Supreme Court denied certiorari in Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino, on April 29, 2013. See note 1 supra. 3 See Evans v. Stephens, 544 U.S. 942, 125 S. Ct. 2244 (2005); United States v. Shubert, 348 U.S. 222, 75 S. Ct. 277 (1955); State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S. Ct. 252 (1950). 4 Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir. 1967).

c2bbaa98-2d1a-423c-adf0-8d974b58b40a

Steadfast Insurance Co. v. Agricultural Ins. Co

oklahoma

Oklahoma Supreme Court

STEADFAST INSURANCE CO. v. AGRICULTURAL INSURANCE CO.2013 OK 63Case Number: 110562Decided: 07/02/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STEADFAST INSURANCE COMPANY, Plaintiff/Appellee,v.AGRICULTURAL INSURANCE COMPANY, n/k/a GREAT AMERICAN ASSURANCE COMPANY, Defendant/Appellant. FEDERAL CERTIFIED QUESTION ¶0 On April 4, 2012, this Court accepted a certified question of state law from the United States Court of Appeals for the Tenth Circuit. A three-judge panel of that court seeks an answer to an unsettled question of Oklahoma law concerning the application of equitable subrogation. This question arose in a dispute between two excess insurers for the Grand River Dam Authority (GRDA). The panel inquires whether second-level excess insurer Agricultural Insurance Company can invoke equitable subrogation to recover sums it became liable to pay as a consequence of an agreement between GRDA and its first-level excess insurer Steadfast Insurance Company. GRDA and Steadfast agreed to include losses under a Steadfast excess policy that were outside the policy year and which triggered Agricultural's second-level excess coverage for that policy year. The panel has under review a judgment by the United States District Court that ruled Agricultural could not invoke equitable subrogation. The District Court reasoned that (1) equitable subrogation is based on rights derived from the insured and (2) GRDA (the insured) released all its rights against Steadfast under their agreement. The panel notes that there is no Oklahoma case law on this precise subject and cases from other jurisdictions are divided on the application of equitable subrogation under these circumstances. Upon review, we answer that Agricultural can invoke equitable subrogation, notwithstanding GRDA's release of Steadfast, but we express no opinion concerning the merits or outcome of such claim. CERTIFIED QUESTION ANSWERED. Gerald P. Green, PIERCE, COUCH, HENDRICKSON, BAYSINGER & GREEN, LLP, Oklahoma City, Oklahoma, and Tory J. Bishop (pro hac vice), KUTAK ROCK LLP, Omaha, Nebraska, for Plaintiff/Appellee,Sarah J. Timberlake, George W. Dahnke, ABOWITZ, TIMBERLAKE, DAHNKE & GISINGER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant. REIF, V.C.J.: ¶1 This case presents a Certified Question of Law submitted by the United States Court of Appeals for the Tenth Circuit, pursuant to 20 O.S. 2011, §§ 1601 through 1606. A three-judge panel of that court seeks an answer to an unsettled question of Oklahoma law concerning the application of equitable subrogation. The panel inquires: Whether a second-level excess insurer can assert a claim for equitable subrogation against a first-level excess insurer even though the insured has agreed with the first-level insurer that the first-level insurer has exhausted its coverage limits and thus released the first-level insurer from any further obligation under the policy? Upon review, we answer that a second-level excess insurer can assert a claim against a first-level excess insurer under the circumstances in this case, but express no opinion about the merits or outcome of this claim. ¶2 This question arose in a dispute between the first-level excess insurer and the second level excess insurer of the Grand River Dam Authority (GRDA). Steadfast Insurance Company is GRDA's first-level excess insurer and Agricultural Insurance Company is GRDA's second-level excess insurer. ¶3 The certification document contains a detailed statement of the facts that underlie the dispute between Steadfast and Agricultural. However, the material facts of that dispute are summarized in the introductory paragraph of the certification document. ¶4 The introductory paragraph relates that Steadfast issued successive insurance policies to provide GRDA first-level excess general liability coverage from 1993 through 2002. Agricultural provided GRDA with second-level excess liability insurance during this same time period, which was triggered once Steadfast had reached its policy limits for a given year. ¶5 Steadfast defended GRDA against a number of flooding claims made from 1993 through 2002. Although the flooding at issue spanned the entire nine-year period of coverage, Steadfast and GRDA agreed that the amounts Steadfast paid on those claims would be allocated to one policy - the 1993-1994 Steadfast policy. Agricultural has claimed that this agreement to allocate all of the flooding claims paid by Steadfast to the 1993-1994 policy wrongfully triggered Agricultural's second-level excess coverage for that year. ¶6 Agricultural asserts that the agreement between Steadfast and GRDA shifted costs to Agricultural that would have been borne by Steadfast in the absence of the Agreement. Agricultural believes it should recover those costs from Steadfast by equitable subrogation. ¶7 Steadfast and Agricultural took this dispute to the United States District Court for the Northern District of Oklahoma. The U.S. District Court ruled Agricultural did not have a viable claim for equitable subrogation against Steadfast. The court reasoned that equitable subrogation was not available to Agricultural because GRDA had released Steadfast from any further liability on the 1993-1994 policy. Steadfast persuaded the court that equitable subrogation is based on a right derived from the insured and the release in question extinguished all rights GRDA had against Steadfast. ¶8 Agricultural appealed to the United States Court of Appeals for the Tenth Circuit. That court examined Oklahoma law concerning equitable subrogation, and found no Oklahoma precedent to cover this situation. The court also looked to the case law of other jurisdictions and found divergent authority on this point. This certification proceeding followed. ¶9 The leading Oklahoma case on equitable subrogation between insurers where excess coverage is involved is United States Fidelity & Guaranty Co. v. Federated Rural Elec. Ins. Corp., 2001 OK 81, 37 P.3d 825 (hereafter the USF&G case). The USF&G case is not directly on point, but it cites approvingly Fireman's Fund Ins. Co. v. Maryland Casualty Co., 65 Cal. App. 4th 1279, 77 Cal. Rptr. 2d 296 (1998). The Fireman's Fund case sets forth the derivative right rule applied by the United States District Court and represents the line of authority that supports Steadfast's position that Agricultural cannot seek equitable subrogation from Steadfast. The case of Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127 (Utah 1997), represents the other view that equitable subrogation can be pursued in spite of a release by an insured. This case refused to allow a release given by an insured to bar equitable subrogation where the insurer that obtained a release did so with notice of the unfair impact on another insurer. ¶10 The USF&G case does state that subrogation is a "derivative concept" and "allows an insurer who has paid coverage to stand in the shoes of the insured." USF&G, 2001 OK 81, ¶¶ 9-10, 37 P.3d at 831. However, this case also provides that equitable subrogation "does not depend upon a contract but arises by implication in equity to prevent an injustice [and] is based on the relationship of the parties." Id. at ¶ 9, 37 P.3d at 831. An earlier case similarly provides that equitable subrogation "is a creature of equity, not depending upon contract [nor] upon assignment, privity, or strict suretyship." Lawyers' Title Guaranty Fund v. Sanders, 1977 OK 210, ¶ 4, 571 P.2d 454, 456. This case also declares "This principle is a fluid concept depending upon the particular facts and circumstances based on [the] natural justice of placing the burden of bearing a loss where it ought to be, and without the form of a rigid rule of law." Id.; see also Republic Underwriters Ins. Co. v. Fire Ins., 1982 OK 67, ¶ 6, 655 P.2d 544, 547. ¶11 GRDA's agreement with Steadfast to include losses outside the policy year of 1993-1994 and the release of further claims is "the form of a rigid rule of law" that cannot ipso facto defeat a claim of equitable subrogation by Agricultural. The GRDA/Steadfast agreement and release is just one of the relevant facts and circumstances that must be considered in determining the "superior equity as between the parties" and placing the burden of bearing a loss where it ought to be. Lawyers' Title, 1977 OK 210, ¶ 2, n.1, 571 P.2d at 455-56. Steadfast's notice, if any, of the impact that the settlement and release would have on Agricultural's coverage must be considered in balancing the equities. ¶12 Another relevant consideration is whether GRDA's settlement with Steadfast, and its effect on Agricultural's coverage, is consistent with GRDA's implied duty to deal fairly and in good faith with Agricultural. "The common law imposes [an] implied covenant [of good faith and fair dealing] upon all contracting parties, that neither party, because of the purposes of the contract, will act to injure the parties' reasonable expectations nor impair the rights or interests of the other to receive the benefits flowing from their contractual relationship." First Nat. Bank and Trust Co. of Vinita v. Kissee, 1993 OK 24, 859 P.2d 502, 509. An excess insurer has a reasonable economic expectation that it will not be responsible on its policy until the insurance at the level lower to the excess insurer has been exhausted in accordance with the express provisions and obligations in the insurance contract. See USF&G, 2001 OK 81, ¶ 15, 37 P.3d at 833. ¶13 These considerations lead us to conclude that the derivative right rule relied upon by Steadfast and the U.S. District Court is inconsistent with Oklahoma's broad view of equitable subrogation. In the case at hand, the derivative right rule gives undue emphasis to only one aspect of the relationship between GRDA, Steadfast and Agricultural. It represents "a rigid rule of law" that would allow GRDA and Steadfast to alter Agricultural's reasonable expectation concerning (1) the losses used to measure exhaustion of Steadfast's policy and (2) Agricultural's liability on its excess policy. The derivative right rule also fails to consider whether Steadfast pursued the GRDA settlement and release with notice of potential detriment to, or unfair impact upon, Agricultural's excess coverage. In short, there is nothing "equitable" about a strict derivative right rule of equitable subrogation and we reject the application of this rule to the case at hand. ¶14 Our answer to this certified question of law is limited to declaring Oklahoma law and is not intended to direct how the federal courts apply our declaration of law in resolving the controversy between the parties. Furthermore, we express no opinion about (1) the weight to be given any of the facts and evidence relating to Agricultural's claim based on equitable subrogation as disclosed in the certifying document, or (2) the ultimate merit of this claim. CERTIFIED QUESTION ANSWERED. ¶15 ALL JUSTICES CONCUR.

0ad1a05e-b4ab-4550-9ae0-6017e546a17b

Lincoln Farm, LLC v. Oppliger

oklahoma

Oklahoma Supreme Court

LINCOLN FARM, L. L. C. v. OPPLIGER2013 OK 85Case Number: 111018Decided: 10/15/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. LINCOLN FARM, L. L. C., Plaintiff/Petitioner,v.DONALD L. OPPLIGER; JOI M. OPPLIGER; FARMING TECHNOLOGY CORPORATION; and FARMING TECHNOLOGY, INC., Defendants/Respondents. CERTIORARI TO REVIEW INTERLOCUTORY ORDER ¶0 Lincoln Farm, L.L.C., had a contract to sell potatoes to Farming Technology Corporation. Lincoln Farm brought an action in the District Court of Oklahoma County alleging that Farming Technology Corp. breached the contract. Farming Technology Corp. brought a counterclaim for breach of contract against Lincoln Farm. Lincoln Farm sought summary judgment against Farming Technology Corp. and the Oppligers who sold the potato farm to Lincoln Farm. Farming Technology Corp. sought summary judgment against Lincoln Farm, and alleged that Lincoln Farm was required to build a railway spur to satisfy a contractual obligation to load potatoes on railway cars supplied by Farming Technology Corp. The Honorable Lisa Tipping Davis, District Judge, granted, in part, the motion for summary judgment sought by Farming Technology Corp., and granted a partial summary adjudication on the issue of liability, and denied the motion for summary judgment sought by Lincoln Farm. The trial court determined that the ruling in favor of Farming Technology Corp. affected the merits of the controversy, that an immediate appeal may advance the termination of the litigation, and certified its ruling for interlocutory review. We previously granted the writ of certiorari. We hold that the unambiguous language of the contract did not require Lincoln Farm to build a private railway spur to deliver potatoes, and we reverse the order of the District Court. PETITION FOR CERTIORARI TO REVIEW A CERTIFIED INTERLOCUTORY ORDERPREVIOUSLY GRANTED; ORDER OF THE DISTRICT COURT REVERSED; ANDCAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH OPINION Mark K. Stonecipher, Andrew L. Walding, Fellers Snider Blankenship Bailey and Tippens, P.C., Oklahoma City, Oklahoma, for Plaintiff/Petitioner, Lincoln Farm, L. L. C.Raymond E. Zschiesche, Phillips Murrah, P.C., Oklahoma City, Oklahoma, for Defendants/Respondents, Farming Technology Corporation and Farming Technology, Inc. Cheryl P. Hunter, James M. Chaney, Kirk & Chaney, Oklahoma City, Oklahoma, for Defendants/Respondents, Donald L. Oppliger and Joi M. Oppliger. EDMONDSON, J. ¶1 The controversy framed by the parties involves whether Lincoln Farm, L. L. C., breached a contract to sell potatoes to Farming Technology Corporation, and whether certain provisions of the Uniform Commercial Code involving the unavailability of a carrier and a commercially impracticable method of delivery are applicable to the parties. Farming Technology argued in the trial court that Lincoln Farm was required to build a private rail spur in order to fulfill Lincoln Farm's contractual obligation to load potatoes on railcars or trucks furnished by Farming Technology Corporation to take delivery of the potatoes. We hold that the contract unambiguously states that Farming Technology Corporation will furnish railcars or trucks to take delivery of the potatoes, the contract does not state that Farming Technology has the right to insist on delivery solely by rail, and that the contract does not require the building of a private rail spur by Lincoln Farm in a circumstance where at the time the purchase agreement was made the potatoes were being loaded on railway cars parked on the main line of the railway. I. The Controversy Before the Court ¶2 Donald and Joi Oppliger agreed on February 1, 2008, to sell their 18,800 acre farm in Nebraska to Redwolf Farms, L .L .C., and its permitted assigns. Redwolf Farms, L. L. C., was assignor to Lincoln Farm, L. L. C. (Lincoln Farm). The parties agreed that the Oppligers reserved the right to designate the physical purchaser and the sale price of the potatoes produced on the real property from the 2008 and 2009 crop years. A crop year is defined by the parties as the year in which the seeds of the crop are planted. ¶3 They agreed that income from the sale of potato crops would satisfy a certain amount payable to Lincoln Farm with additional amounts from the sale, if any, to be paid to the Oppligers. According to Lincoln Farm, one of the contract terms required the Oppligers to guarantee prices Lincoln Farm would receive in 2008 and 2009 for potatoes harvested from the Nebraska farm. This guarantee also provided that the Oppligers would select the purchaser and sale price of the crops. ¶4 Pursuant to the provisions of the agreement for the real estate purchase, the Oppligers designated Farming Technology Corporation (FTC) as the Buyer for the 2008 potato crop from the Seller of said crop, Lincoln Farm. The Oppligers' practice was to contract for the sale of their crops prior to their planting, and they had sold them to FTC for several years prior to the sale of the real property. The 2008 Purchase Agreement for the potato crop was executed on February 20, 2008, the same day that closing occurred on the real estate contract for the purchase of the potato farm. ¶5 The Nebraska Kansas Colorado Railway (NKCR) allegedly informed the Oppligers that their potato storage and loading facility encroached on the NKCR's property and that the encroachment must be removed from the NKCR property. For several years the NKCR had permitted the Oppligers to use the railway's main line for the purpose of loading potatoes on railway cars parked temporarily on the main line. It is also alleged that Don Oppliger received notice from the NKCR in 2007 for the need of a private spur line to continue loading potatoes on railway cars at the storage facility. FTC states on appeal that Don Oppliger informed Lincoln Farm in November 2007 that the NKCR "was going to require him to build a rail spur."1 Lincoln Farm states in reply that Oppliger told it that initially the NKCR had informed Oppliger that a spur would be needed, but: " . . . this was not the case because he worked an arrangement with the railroad so that a rail spur was not required to be built at that time, and railcars could continue to be parked on the main line next to the Potato Building for loading. . . . Oppliger told his employees that rail spur would not be required . . . He instructed them to re-build the load-out area so potatoes could be loaded directly from the Potato Building into railcars parked on the mainline . . . [and] Oppliger knew, but failed to inform Redwolf or Lincoln Farm the arrangement with NKC Railway was only temporary."2 FTC and Lincoln Farm do not contest that the 2007 potato crop was loaded on railway cars parked on the main line until some point shortly after May 6, 2008, and that on approximately June 9, 2008, Lincoln Farm was notified by the NKCR that railway cars would no longer be allowed to be parked on the main line for loading potatoes.3 ¶6 In September 2008 a potato crop harvesting began. The crop contract between Lincoln Farm (Seller) and FTC (Buyer) contained the following. (B) Seller warrants its is capable of harvesting and loading a minimum of 7,500 CWT. of potatoes per day. Buyer shall have no obligation to accept any potatoes not loaded by April 30, 2009. (C) Seller agrees to load potatoes on trucks or railcars furnished by Buyer. (E) The approximate quantity of potatoes set out on page 1 will be delivered and piled by Seller into Seller's storage which is located in or near Wallace Nebraska. Seller will remove anything that will affect the flow of air through the potatoes. However, Buyer may at its option, load potatoes direct from the field. O.R. at 221, 470. ¶7 When the harvest began, FTC rented railway cars which the NKCR parked in Nebraska off of the main line, but not in a location for direct loading of potatoes from the potato storage facility. The NKCR informed Lincoln Farm that the railway cars could not be loaded while parked on the main line, and Lincoln Farm informed FTC that it was ready to load potatoes on trucks supplied by FTC. ¶8 On October 23, 2008, FTC notified Lincoln Farm that "there were no alternatives under the 2008 Potato Contract other than for the potatoes to be loaded into railcars." Lincoln Farm understood that its contractual obligation could be satisfied by loading potatoes on either railway cars or trucks supplied by FTC. Lincoln Farm argued that the potato contract required it to deliver potatoes to a storage facility "to be piled and held there for loading 'on trucks or railcars furnished by Buyer [FTC].'" After the June 8th notice from the NKCR and before harvest began, Lincoln Farm started the process to build a private spur line, and insisted that it was not building the spur to satisfy any contractual agreement with FTC. The rail spur became operational by January 30, 2009, and potatoes were loaded by Lincoln Farm and shipped by FTC using this spur pursuant to the parties' agreement. The 2008 potato contract had a cutoff date of April 30, 2009, but FTC continued shipping potatoes "as long as the condition and quality of the potatoes are good." The last railway car of potatoes was shipped on May 21, 2009. ¶9 On June 18, 2009, Lincoln Farm sent its final invoice to FTC for $244,401. The invoice was not paid and Lincoln Farm brought an action in the District Court of Oklahoma County alleging that Farming Technology Corporation breached the contract. Farming Technology Corporation brought a counterclaim for breach of contract against Lincoln Farm. Farming Technology Incorporated (FTI), an entity owned by FTC, claimed that Lincoln Farm owed $82,774 to FTI for storage fees, switching charges, railway car payments for rail cars sent to Nebraska before the rail spur was operational. ¶10 Lincoln Farm sought summary judgment against Farming Technology Corporation and the Oppligers. FTC sought summary judgment against Lincoln Farm and stated that due to the rail spur not being available until January 30, 2009, it was necessary for it to "cover" the purchase of potatoes from third parties at an additional cost of $575,650.45, and that it was entitled to a judgment in that amount against Lincoln Farm. The trial court granted the motion for summary judgment sought by Farming Technology Corporation on the issue of liability, and denied the motion for summary judgment sought by Lincoln Farm. The trial court certified part of its order for discretionary interlocutory appellate review pursuant to the provisions of 12 O.S.2011 § 952(b)(3) and Supreme Court Rule 1.50.4 II. Standard of Review, Scope of Review, and Choice of Law ¶11 The parties argue that the standard for appellate review of a summary judgment in Oklahoma applies herein. The standard applicable herein to review an order granting partial summary adjudication is de novo review similar to that provided on appellate review of a summary judgment. ¶12 Generally, a standard of appellate review is based, in part, upon the nature of the decision of trial tribunal and whether it adjudicated issues of fact, law, or mixed fact and law.5 When in the exercise of our general appellate jurisdiction we review an adjudication of a pure question of law we review the issue de novo.6 The nature of the order before us for review is not a summary judgment, but an interlocutory order anterior to judgment that is a partial summary adjudication on the issue of liability. A partial summary adjudication that determines the legal issue of liability necessarily includes an adjudication of the presence of those facts necessary to sustain that adjudication; and like a summary judgment determination,7 the facts necessary to sustain a partial summary adjudication on the issue of liability (1) must be not in controversy, (2) must not be of such a nature that reasonable individuals could reach different factual conclusions, and (3) all conclusions drawn from the evidentiary materials submitted to the trial court are viewed in a light most favorable to the party opposing the motion.8 ¶13 Further, when a trial court exercises jurisdiction via summary process to adjudicate the merits of a cause of action and any defenses as a matter of law, the well-known respective burdens of the parties must be satisfied. For example, in the matter before us FTC sought, via summary process, adjudication on the merits of its cause of action that Lincoln Farm breached a contract.9 Thus, FTC had the burden to prove those facts necessary to support each of the elements of a breach of contract claim.10 Only if FTC, as the movant for summary adjudication on its cause of action, satisfies the initial burden to show entitlement to summary adjudication is it incumbent on Lincoln Farm as the non-movant to demonstrate by its own submissions the existence of a substantial dispute as to some material fact.11 Lincoln Farm has the burden to raise and prove each element of any affirmative defense interposed to defeat FTC's breach of contract cause of action.12 The standard of appellate review of a trial court order granting partial summary adjudication is thus similar to that used when the Court reviews a summary judgment.13 ¶14 Generally, the scope of our appellate review may be affected by the nature of the trial court's order reviewed, the nature of the appellate proceeding, the issues raised by the parties, and in the controversy before us the substantive law of Texas which is a choice of law issue presented by the parties.14 Our review is limited to that part of the trial court's order which granted partial summary adjudication to FTC, and that part of the trial court's order denying summary judgment to Lincoln Farm is not before us. This is so because that part of the order granting FTC summary adjudication was the only part of the order certified for appellate review,15 and on certified interlocutory review we do not review an order of a trial court that denies a motion for summary judgment.16 Our review is limited to that part of the trial court's order that was certified and which affects a substantial part of the merits of the controversy.17 Since this controversy is not a public-law controversy, the matters adjudicated on appeal are limited by the non-jurisdictional assignments of error18 and issues raised by the parties.19 However, due to the parties' choice of law, issues addressed may include those treated as jurisdictional by a Texas court and raised sua sponte when applying substantive Texas law in a controversy of the nature that is before this Court. ¶15 Although the standard of appellate review is based upon Oklahoma's procedural law,20 the parties' briefs contain numerous citations to statutes and court opinions from the State of Texas. The "2008 Purchase Agreement Nebraska Potato Crop" expressly provides that the law of the State of Texas shall apply to the construction of the contract: "This agreement shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America." 2008 Purchase Agreement Nebraska Potato Crop, at ¶ (M), O.R. 469, 471. The contract specifies that: "This agreement has been entered into and is performable in Harris County, Texas." Id. We apply the substantive law of the State of Texas to the controversy before us. III. Breach of Contract Claim and the Language of the Contract ¶16 Generally, in Texas the elements of breach of contract are (1) a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.21 On FTC's counterclaim it is cast in the role of a plaintiff and its motion for summary judgment must show these elements to be entitled to partial summary adjudication on the issue of liability. Most of Lincoln Farm's arguments on appeal are that it did not breach the potato sales contract. ¶17 In its motion for summary judgment, FTC states that it never advised Lincoln Farm that it had to build a rail spur.22 FTC states that Lincoln Farm was unable to load any potatoes on railway cars until January 30, 2009, five months after it had agreed to have potatoes available for loading on railway cars provided by FTC. On appeal, FTC argues that it does not assert that the language of the contract required Lincoln Farm to build a spur, but that "under that contract Lincoln was required to deliver potatoes to FTC by loading them into railcars, which Lincoln's President admitted required a rail spur to be built off of the main track."23 FTC's argument raises the issue of what was required "under that contract." ¶18 Lincoln Farm denied the allegation that completion and operational status of a rail spur was a material part of the basis of the bargain between the parties.24 Although there is no allegation made by FTC concerning the exact date that Lincoln Farm was first told by the NKCR that a rail spur was needed for railway loading, FTC's motion for summary judgment states that "As alleged by plaintiff, at some point shortly after May 6, 2008, the NKC Railway discontinued its practice of allowing railcars to be loaded from the potato storage shed onto railcars placed on the main rail line. Instead, it notified plaintiff that it would be required to build a rail spur off of the main line."25 Lincoln Farm alleges that notification from the NKCR occurred in June 2008. ¶19 One argument of FTC is that the contractual language requiring Lincoln Farm to load potatoes at the potato storage building on railway cars necessarily means that Lincoln Farm must provide a railway spur line for loading because such a spur was a reasonable condition for Lincoln Farm to fulfill its contractual obligation to load railway cars. The exact nature of this necessity in FTC's arguments must be noted. In its trial court Reply, FTC stated that "FTC has never contended that there is a provision in that contract which states that plaintiff must build a rail spur," and it echoes this position on appeal.26 FTC's argument is based upon it equating a contractual duty of "loading" with legal "delivery," and that the method of delivery, trucks or railway cars, was solely at the option of FTC even if delivery by rail could not occur as it was contemplated at the time the contract was created in February 2008. On appeal, FTC also argues that "to the extent that Lincoln argues that this provision [concerning trucks and railcars]" is ambiguous, the intent of the parties governs when construing the contract and the nature of FTC's right to select the method of transportation. Because some of the parties' arguments are based in part upon whether the duty to build a spur is expressly or impliedly part of the contract and the nature of ambiguous and unambiguous terms in a contract, we first start with a review of implied terms in contracts by Texas courts before addressing the parties' arguments concerning how obligations relating to delivery were set forth in the contract. ¶20 As previously noted, the contract does not contain express language stating that Lincoln Farm must build a private spur line. We note that the agreement states that it is the "entire agreement among the parties . . . And may not be contradicted or varied by evidence or prior, contemporaneous, or subsequent oral agreements or discussions." Agreement, at ¶ (P). However, the Texas Commercial Code allows evidence of meaning of contract terms27 and supplementation in the presence of ambiguity of the terms.28 One issue presented is whether either FTC's sole discretion to select rail as a method of delivery or Lincoln Farm's obligation to build a spur are based upon the presence of ambiguity in the express language of the Agreement, and whether this ambiguity is the result of an omitted implied term in the contract that was contemplated by the parties but left unstated. ¶21 A breach of contract has been defined as "a failure, without legal excuse, to perform any promise that forms the whole or part of a contract."29 A contract may include implied terms, but Texas law does not favor an implied term or an implied covenant.30 It is only in rare circumstances that a court will imply a covenant in a contract.31 In 2003, the Supreme Court of Texas explained these views in Universal Health Servs., Inc. v. Renaissance Women's Group, P.A.32 Generally, a court looks only to the written agreement to determine the obligations of contracting parties. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981). In rare circumstances, however, a court may imply a covenant in order to reflect the parties' real intentions. Obviously, courts must be quite cautious in exercising this power. See Freeport Sulphur Co. v. Am. Sulphur Royalty Co. of Tex., 117 Tex. 439, 6 S.W.2d 1039, 1041 (1928). "The court cannot make contracts for parties, and can declare implied covenants to exist only when there is a satisfactory basis in the express contracts of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties in the contracts made." Id. at 1040. An "implied covenant must rest entirely on the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself, and it must appear that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it...." Danciger Oil & Refining Co. of Tex. v. Powell, 137 Tex. 484, 154 S.W.2d 632, 635 (1941). Thus, a covenant will not be implied simply to make a contract fair, wise, or just. Id.33 This argument requires the contract language "Seller agrees to load potatoes on trucks or railcars furnished by Buyer" to be based upon an implied term that is a promise by Lincoln Farm to contract in the future with the NKCR for building a spur in time for the 2008 crop. ¶22 One issue involves when a promise by one party for future negotiation with a third party is enforceable pursuant to Texas jurisprudence. Generally, an agreement is judicially enforceable only if its terms are sufficiently definite to enable a court to understand the parties' obligations, and an agreement to make a future contract is legally enforceable only if it does not leave material terms open for future negotiation.34 Texas law generally states that an agreement to negotiate in the future is unenforceable, even if the agreement calls for a good faith effort in the negotiations.35 Such an agreement to negotiate is unenforceable because "[t]here would be no way by which the court could determine what sort of a contract the negotiations would result in, no rule by which the court could ascertain whether any, or, if so, what damages might follow a refusal to enter into such future contract."36 ¶23 Of course, FTC argues that the term to be judicially enforced is a promise to load which necessarily requires a promise build a spur in time for the 2008 potato crop harvest as a reasonable condition for Lincoln Farm to fulfill, and the damages would be those FTC forth in its pleadings. However, we also note that whether such a promise for a future third-party contract as a reasonable condition may be enforceable against Lincoln Farm by FTC when (1) the record shows that at the time the contract was created Lincoln Farm was unaware that the railway would require a spur and such would be necessary for rail transport, and (2) the general legal principle that a railway is under no obligation to construct a spur to be located on private property and for private use.37 In other words, may we say that in February 2008, it was the unstated and assumed agreement of the parties that Lincoln Farm would build a spur, if needed, in time for the 2008 potato crop harvest when the need for building the spur was unknown at that time and the building of such a spur was based upon the limitations of consent, time, and construction parameters that could be imposed by the NKCR, a non-party to the potato agreement? We think not.38 ¶24 The record before us on summary adjudication shows that the 2008 crop agreement was drafted by FTC based upon earlier agreements FTC had with the Oppligers. The record before us also shows that Lincoln Farm was not informed until either after May 6, 2008, or in June 2008, a few months after the execution of the agreement on February 20, 2008, that a rail spur would be needed to load the 2008 potato crop on railway cars at the facility. The record shows that in August 2008 Lincoln Farm had submitted a survey of its property and was waiting to receive documents to go forward with building a spur, and on October 31, 2008, was "working on getting the contract signed with the RR" to start construction of a spur. On these facts we cannot say that at the time the Purchase Agreement was made in February 2008, that Lincoln Farm building a rail spur for the 2008 crop was "so clearly within the contemplation of the parties that they deemed it unnecessary to express it" in that Agreement. We hold that the facts in the record fail to show that the building of a rail spur was clearly within the contemplation of the parties sufficient to be an implied term of the Agreement based upon partes' mutual intent at the time the Agreement was created. Similarly, the record before us on appeal from a summary adjudication contains nothing to show that a discretion by FTC to select rail delivery as the only method for taking delivery could be an unstated and assumed agreement of the parties that was "so clearly within the contemplation of the parties that they deemed it unnecessary to express it." ¶25 We must note that Texas courts avoid construing a contract in a manner which makes performance impossible.39 Texas courts discuss the timing of the impossibility, the knowledge of the parties, and the reason for the impossibility as important factors when adjudicating whether a promise is enforceable. In considering impossibility of performance we must distinguish between original impossibility and supervening impossibility. The former is impossibility of performance existing when the contract was entered into, so that the contract was to do something which from the outset was impossible; whereas supervening impossibility is that which develops sometime after the inception of the contract. The Restatement of Contracts also distinguishes between subjective impossibility and objective impossibility. Section 455 of the Restatement provides that impossibility of performing a promise that is not due to the nature of the performance but wholly to the inability of the individual promissor neither prevents the formation of the contract nor discharges a duty created by a contract. Section 456 states that except as stated in Section 455, or where a contrary intention is manifested, a promise imposes no duty if performance of the promise is impossible because of facts existing when the promise is made of which the promissor neither knows nor has reason to know.40 In February 2008, when the parties agreed for Lincoln Farm to load railway cars, the NKCR was allowing loading on the main line, and the record on summary adjudication that is before us fails to show that either Lincoln Farm or FTC knew of had reason to know that the NKCR would later stop the practice of loading on the main line and that a spur would be needed for railway loading the following September. In February 2008, loading on railway cars and accepting delivery was not only possible, but a practice that had occurred for several years by FTC. ¶26 A few non-precedential Texas appellate opinions have discussed the Restatement of Contracts and the impossibility of performance of a contract after it has been executed.41 Generally, they have indicated there is a difference between 'the thing cannot be done' and 'I cannot do it.' The first of these is referred to as objective impossibility and the second as subjective impossibility. The statement, 'I cannot do it,' never relieves the promisor, the reason being that the promisor has agreed and definitely bound himself to perform, and cannot be heard to say otherwise. In appellate opinions with precedential value, Texas courts have applied the Restatement (Second) of Contracts, which speaks in terms of impracticability of performance rather than impossibility.42 ¶27 Neither party expressly relies upon application of either the First or Second Restatement of Contracts, or upon the doctrines of impossibility or commercial impracticability as applied by Texas Courts.43 In the case before us, Lincoln Farm has maintained that it has always had the ability to load railway cars or trucks, and FTC failed to provide the railway cars for loading due to a decision by the NKCR to not allow parking cars on the main line. Lincoln Farm's approach is that FTC, as buyer and shipper of the potatoes who leases the railway cars and uses the NKCR for its shipping, must be held to have assumed the risk that the main line would not be available. FTC's main approach to the litigation is that Lincoln Farm made an unconditional and absolute promise to load potatoes on railway cars, and Lincoln Farm must be held to have assumed the risk that the NKCR would not provide Lincoln Farm with access to its main line for loading, and that Lincoln Farm is responsible for taking reasonable steps to fulfill its promise to load, and those steps include building a private spur. In sum, FTC argues for a well-known Texas standard "that one who unconditionally obligates himself to do a thing possible of performance, must be held to perform it."44 According to FTC, loading by rail was possible if Lincoln Farm built a spur, so Lincoln Farm should have built one to satisfy the obligation for loading on a railcar. Lincoln Farm does not agree that the well-known standard creates an obligation for it to build a spur. ¶28 On summary adjudication, FTC was required to show that the language ""Seller agrees to load potatoes on trucks or railcars furnished by Buyer" to be a unambiguous promise in February 2008 "under that contract" that Lincoln Farm would provide a facility that was capable to ship the 2008 crop by rail even if Lincoln Farm had to modify that facility to comply with then unknown conditions not yet imposed by the railway on Lincoln Farm. The issue of whether the language is unambiguous presents a question of law relating to the parties' intent. ¶29 A Texas court's primary objective when interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract.45 The courts determine the parties' intent at the time the contract was created.46 If the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, then the contract is ambiguous.47 An ambiguous contract creates an issue of fact on the parties' intent that must be submitted to the trier of fact.48 A contract is not ambiguous if it can be given a definite or certain meaning as a matter of law,49 so that all provisions are harmonized and given effect so that none will be rendered meaningless.50 ¶30 Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered,51 and "The Texas Supreme Court has held that a court may conclude that a contract is ambiguous even in the absence of such a pleading by either party."52 In other words, the issue of the existence of an ambiguous contract may be examined by a court sua sponte; i.e., judicial enforceability of a contract in Texas includes an analysis of whether the contract to be enforced is unambiguous. When a contract is unambiguous, interpretation of the written instrument is a question of law for the court.53 ¶31 Although FTC and Lincoln Farm construe their obligations under this contract quite differently, a contract is not ambiguous merely because the parties disagree on its meaning.54 Again, "[a]n ambiguity exists only if the contract language is susceptible to two or more reasonable interpretations"55 at the time the contract was created, and we look to see that all provisions are harmonized and given effect so that none are rendered meaningless. Looking at the contract as a whole and upon consideration of the record before us, it is clear that at the time the Agreement was created in February 2008, the contractual language unambiguously states that the parties intended for FTC to furnish railway cars to be parked on the main line of the NKCR, and for Lincoln Farm to load on FTC's railway cars those potatoes that had previously been harvested and piled in the storage facility by Lincoln Farm. The parties' intent was to use a railway track owned, operated, and under the control of the NKCR. In sum, the contract between Lincoln Farm and FTC incorporated the availability of certain services provided by a commercial carrier. The contract also unambiguously states that FTC promises to furnish railcars or trucks for Lincoln Farm to load. IV. Delivery ¶32 FTC's position is that even if Lincoln Farm and FTC agreed to use the main line of the railway, once Lincoln Farm was notified that a spur would be needed for rail delivery then Lincoln Farm had an obligation to build a spur as a reasonable condition to fulfill its obligation for loading railway cars furnished by FTC. FTC argues that failure of delivery occurred because Lincoln Farm could not load potatoes in railway cars parked on the main line of the NKCR and had not taken the reasonable action of building a private rail spur. On the other hand, Lincoln Farm's position is that loading of potatoes on railway cars did not occur because FTC failed to supply railway cars for loading at the storage facility. Further, because FTC was both buyer and shipper it was the party responsible for taking reasonable steps to provide either railway cars of trucks for loading. One issue presented by the parties is did failure of delivery occur because FTC failed to furnish either railway cars or trucks, or did failure occur because Lincoln Farm declined to build a railway spur? ¶ 33 FTC contends that even if the contract did not require Lincoln Farm to build a rail spur, the contract did require delivery of the potatoes on railway cars and Lincoln Farm, "as a necessary consequence of this obligation," was required at its own expense to perform whatever may be necessary to enable Lincoln Farm to fulfill this obligation, even if building a private spur was required. Lincoln Farm responds that contract-specified "delivery" was not on railway cars, but at the storage facility, and that it fulfilled the contract. ¶34 The "2008 Purchase Agreement Nebraska Potato Crop" does not contain the word "delivery." However, it does use the term "deliver" twice. (E) The approximate quantity of potatoes set out on page 1 will be delivered and piled by Seller into Seller's storage which is located in or near Wallace Nebraska. Seller will remove anything that will affect the flow of air through the potatoes. However, Buyer may at its option, load potatoes direct from the field. (N) If Seller fails to deliver the Contracted Potatoes as a result of a sale to a third party; such failure to deliver shall be an event of default by seller, in which case, Seller shall be indebted to Buyer to the extent of any amounts advanced by Buyer and, in addition, Seller shall be indebted to the Buyer in a liquidated sum equal to 125% of price paid by Buyer to replace the approximate CWT of potatoes as set forth in this Agreement under quantity. Lincoln Farm argues that delivery occurred when the potatoes were "delivered" or piled in the storage building. Thus, Lincoln Farm argues that loading was a contractual duty after delivery. ¶35 The term "delivery" is a term with meaning in the Commercial Code of Texas. For example, the Texas Business and Commerce Code, which contains Texas' version of the Uniform Commercial Code, provides that title to goods passes to the buyer at the time and place the seller completes performance regarding the physical delivery of the goods.56 Generally, delivery may be actual or constructive. Delivery may be a mixed issue of fact and law.57 In the controversy before us we are asked to construe language in a contract where facts are not in dispute, the only dispute presented by the parties is the meaning of unambiguous language in the contract, and the issue presented is a question of law.58 ¶36 While actual delivery consists in the giving real possession to the vendee or his servants or special agents who are identified with him in law and represent him, a constructive delivery of goods sold may be substituted for an actual delivery when in pursuance of agreement by the parties, or an established custom, and where by construction of law the agreement, custom, or acts of the parties are equivalent to acts of real delivery.59 Was Lincoln Farm's act of piling the potatoes in its storage facility constructive delivery to FTC? We think not. ¶37 Lincoln Farm had to plant, grow, harvest, and store the potatoes in the storage building prior to loading. In this appeal, there are no facts with supporting authority to show that possession, actual or constructive, or that title to the potatoes,60 or risk of loss, passed to FTC when the potatoes where piled in the storage facility on Lincoln Farm's property. The contract specifies that payment to Lincoln Farm from FTC is based upon the amount of potatoes "per CWT loaded in railcars or trucks plus or minus . . . ." Viewing the contract as a whole, Lincoln Farm would have "completed performance regarding the physical delivery of the goods" when it loaded the potatoes on railway cars or trucks furnished by FTC at Lincoln Farm's property. ¶38 Delivery by rail was prevented by the NKCR declining to provide the main line for parking the railway cars. Texas court opinions clearly explain that if the contract, properly construed, shows that the promisor assumed the risk of unanticipated events, the occurrence of such events does not excuse performance.61 Further, that even if a party contracts to render a performance that depends on some act by a third party, he is not ordinarily discharged because of a failure by that party because this is also a risk that is commonly understood to be on the obligor.62 Does the contract, properly construed, show that Lincoln Farm assumed the risk of the unanticipated event of non-availability of the main line for the NKCR? Also, does the contract, properly construed, show that FTC assumed the risk of the unanticipated event of non-availability of the main line for the NKCR? ¶39 We agree with FTC that the contract unambiguously required Lincoln Farm to load potatoes on trucks or railcars furnished by FTC, and that delivery would occur at that time. However, we disagree with FTC that delivery upon loading necessarily means that Lincoln Farm assumed the risk of the unanticipated event of non-availability of the main line for the NKCR and thus breached the agreement by not providing a rail spur. A contract is construed to determine whether a party unconditionally obligated itself to do a thing possible of performance, and if so, then it must be required to perform it.63 This analysis requires an initial determination that building a rail spur was a "necessary consequence" to fulfill a contractual obligation to load trucks or railcars. More specifically, was building a private rail spur a "necessary consequence" for a seller who agrees to load its goods on railway cars provided by the buyer and operated on a railway owned by a third party? What is a necessary consequence is based upon the contractual obligation and the circumstances. We are not presented with a contract which specifies that delivery will be solely by railway in the context of a party knowing that railway facilities on its own property must be provided in order for that sole delivery method to be effected. Further, we are not presented with a contract which gave discretion to select a railway delivery to the exclusion of truck delivery when railway delivery was unavailable.64 ¶40 Lincoln Farm argued that it was able to timely load at the storage facility all of the contract-specified potatoes on trucks to be furnished by FTC. FTC argues that it had the option to send either trucks or railcars for loading the potatoes and require Lincoln to provide whatever was necessarily required by method of delivery selected. In sum, FTC's argument rests upon the idea that "Seller agrees to load potatoes on trucks or railcars furnished by buyer" means that "Seller agrees to load potatoes on railcars if that is the delivery method Buyer chooses even if railcars may not be used until Seller builds a rail spur." ¶41 The express language of the contract specified two methods of delivery to FTC, one using the NKCR main line for delivery on railway cars furnished by FTC, and another using trucks furnished by FTC. We would be inclined to agree, in part, with FTC that the language "trucks or railcars furnished by buyer" could be interpreted to mean the buyer has complete discretion for selection for a delivery method if the phrase "at Buyer's option" were not found in other provisions of the contract.65 Lincoln Farm argues that the phrase "at Buyer's option" appears twice in the contract, once for the date of delivery and once for a "Buyer's option" for loading potatoes directly from the potato fields. Lincoln Farm argues that no "at Buyer's option" existed for FTC to insist on one, and only one, method of delivery. Lincoln Farm also points to an appellate opinion and language in a contract such as delivery is "to be made by rail unless otherwise agreed" for an example of contractual language that FTC should have bargained for, but did not, if it wanted to possess the sole discretion to select rail delivery over no delivery at all.66 ¶42 In the trial court, FTC relied on the deposition of Fred Helper, a representative for Lincoln Farm, for the proposition that FTC possessed an option for delivery by either railway cars or trucks.67 He agreed that FTC, as the buyer, had the option to either haul the potatoes away in trucks or by rail. He also stated that it was Lincoln Farm's obligation to load trucks or rail cars, but it was not Lincoln Farm's obligation to build a spur. When asked why Lincoln Farm built a spur, he stated that "As I best recollect, it was that we were not allowed to load potatoes directly onto the rail line and would have to build a spur in order to load potatoes on rail."68 He also stated that his reading of the contract indicated that it was Lincoln Farm's contractual obligation to load trucks and railcars, but not to "provide the facilities for rail cars" or "provide the trucks."69 He agreed that FTC had an option to deliver one or the other, truck or railcar, but he did not state that FTC had the option to deliver one at the exclusion of another while delivering neither. The record does not support the idea that Lincoln Farm understood that FTC had a contractual right to insist on railway car delivery to the exclusion of trucks when the former became impossible on the main line. Although a spur was built by Lincoln Farm, the record before us does not show an intent on the part of Lincoln Farm to build a spur because FTC possessed a discretionary right to insist on delivery by rail to the exclusion of delivery by trucks if the main line rail was not available. ¶43 The contract, taken as a whole, is not silent on Buyer's options to be exercised pursuant to the terms of the contract. It provides such options for Buyer in two provisions of the contract, and neither includes the specific provision that Buyer has the sole discretion to provide either railway cars or trucks to the exclusion of either when fulfilling its obligation to take delivery. The contract as a whole, as it relates to the specific provision for Buyer-provided trucks and railway cars, is thus an example that is similar70 to one maxim of contract construction used by courts in Texas: the maxim expressio unius est exclusio alterius--literally "the specific mention of one is the exclusion of the other."71 Here, the parties expressly contracted on two provisions of the contract to include "at Buyer's option" and they did not include such language in the provision relating to delivery. We conclude that the contract required FTC as buyer to furnish "trucks or railcars" to Lincoln Farm for loading the potatoes. If FTC did not furnish railway cars for loading at the potato storage building, then supplying trucks was a contract-required method for delivery, and building a spur by Lincoln Farm was not required "under the contract" to fulfill its obligation of delivery. Lincoln farm did not breach the contract when it informed FTC that it was ready to load the potatoes on trucks in the absence of a working private rail spur. ¶44 Further, the record before us indicates that FTC had used the main line for several years for railway cars it provided for shipping the potatoes, it knew that the main line was not on the property of Lincoln Farm, and it based the 2008 agreement on agreements it had made with the Oppligers in previous years. There is no allegation that Lincoln Farm paid any amounts to the NKCR for the use of its railway or for leasing railway cars. Although Lincoln Farm loaded the potatoes on the railway cars leased by FTC, the record before us shows that FTC was the party actually using the NKCR main line and railway cars to accept delivery and ship its potatoes, and that this use of the NKCR line and railcars was the contractual obligation incurred by FTC. The contract is clear that it is FTC, and not Lincoln Farm, that assumed the risk of the unanticipated event of non-availability of the main line for the NKCR. ¶45 FTC argues that Lincoln Farm raised the Uniform Commercial Code (U.C.C.) §§ 2-614, 2-615, as defenses to FTC's motion for summary judgment. In the trial court and on appeal, Lincoln Farm has argued that these sections were raised by Lincoln Farm to show the analysis needed for FTC to excuse FTC's performance, and that these provisions were not raised by Lincoln Farm to excuse its own performance; i.e., the provisions were invoked for arguments concerning the alleged duties of FTC.72 ¶46 Lincoln Farm argues that in June, 2008, an agreed type of carrier became unavailable when the NKCR informed Lincoln Farm that loading could not occur on the main line as had previously occurred, including the 2007 crop which had completed loading in May 2008. Lincoln Farm argued that the contract could still be performed with FTC furnishing trucks for loading. FTC allegedly told Lincoln Farm that trucks were not an available method for delivery. ¶47 The record before us clearly shows that Lincoln Farm's citations to U. C. C. §§ 2-614 & 2-615 were used in arguments that were proleptic in nature; i.e., arguments in the nature of anticipation and answering arguments before one's opponent has put them forward. Lincoln Farm's arguments relate to its claims that FTC breached the potato sales agreement. FTC argues on appeal that the trial court could have ruled against Lincoln Farm without considering U. C. C. §§ 2-614, 615. Whether FTC breached the potato sale agreement is not before us on reviewing a partial summary adjudication determining that Lincoln Farm breached the agreement. First, Texas courts use the "same transaction or occurrence" language for defining a cause of action,73 and any potential non-jurisdictional defenses FTC may or may not possess to Lincoln Farm's cause of action are part of that cause of action for the purpose of an adjudication, and they may not be raised for the first time on an appeal.74 Second, Texas courts do not render advisory opinions because (1) such opinions do not involve a justiciable controversy, (2) they are beyond the jurisdiction of those courts since they decide abstract questions of law, and (3) they are prohibited under the Texas and federal constitutions as construed by those courts.75 In sum, any cause of action against FTC and any defenses that are part of that cause of action are not before us in this appeal, including application of U. C. C. §§ 2-614, 2-615. V. Conclusion ¶48 We hold that the unambiguous language of the 2008 Purchase Agreement for the potato crop required FTC to provide railcars or trucks for taking delivery of the potatoes from Lincoln Farm. We hold that the unambiguous language of that agreement did not give FTC a right to demand delivery by rail as the sole method for delivery; and as a consequence of that holding, we hold that Lincoln Farm did not breach the 2008 Purchase Agreement for the potato crop when it did not build a private railway spur on its property for taking FTC's railways cars from the main line of the NKCR until January, 2009. The questions presented by the parties on the application of U. C. C. §§ 2-614, 615, are not properly before us for adjudication in this appeal. The only issue before us in this appeal is whether Lincoln Farm breached the potato purchase agreement when it did not build a rail spur until January 2009. ¶49 The trial court's order on partial summary adjudication adjudicating that Lincoln Farm breached the 2008 potato sale agreement is reversed, and the cause is remanded to the District Court for further proceedings consistent with this opinion. ¶50 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, JJ. - CONCUR ¶51 GURICH, J. - RECUSED FOOTNOTES 1 FTC Answer Brief at 3. 2 Lincoln Farm's Reply Brief at 1-2. 3 "As early as June 9, 2008, Lincoln was advised by the NKCR that it would no longer allow Lincoln to load railcars on the main rail track from the potato storage facility." FTC's Answer Brief, at 5. 4 12 O.S.2011 § 952(b)(3): (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: ... 3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal ... Oklahoma Supreme Court Rule 1.50 provides: "Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge's successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order. 12 O.S.2011 § 952, Subdiv. (b)(3). No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment. See Rule 1.40 for the application of other rules to review of a certified interlocutory order." 5 Christian v. Gray, 2003 OK 10, ¶ 40, 65 P.3d 591, 608. 6 Christian v. Gray, 2003 OK 10, at ¶ 41, 65 P.3d 608. 7 Summary judgment is appropriate only when it appears from the pleadings, affidavits, depositions, admissions or other evidentiary materials there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law. Tucker v. ADG, Inc., 2004 OK 71, ¶ 11, 102 P.3d 660, 665. Appellate review of a summary judgment may include assigned error that material facts are in dispute or yet not litigated, and that summary judgment was thus improperly granted. Schulte v. Apache Corp., 1991 OK 61, 814 P.2d 469, 471 (parties did not sufficiently demonstrate that there was no genuine issue of material fact to warrant a final judgment, and the trial court erred when it granted a summary judgment); Rader v. Farmers Insurance Co., Inc., 1997 OK 16, 934 P.2d 332, 334-335 (summary judgment was not proper when an issue of material fact was not litigated). 8 Woods v. Prestwick House, Inc., 2011 OK 9, ¶¶ 30, 32, 247 P.3d 1183, 1191-1192 (In the context of a motion for partial summary adjudication, we explained that all inferences and conclusions to be drawn from the underlying facts contained in the record are to be considered in the light most favorable to the party opposing the motion, and that even when the basic facts are undisputed, the motion should be denied, if, under the evidentiary materials, reasonable individuals could reach different factual conclusions because the issue is a question for determination by the trier of fact.); Embry v. Innovative Aftermarket Systems, 2010 OK 82, ¶ 12, 247 P.3d 1158, 1161 (On review of a partial summary adjudication, we stated that all conclusions drawn from the evidentiary materials submitted to the trial court are viewed in a light most favorable to the party opposing the motion.); Wofford v. Mental Health Services, 1997 OK 116, 946 P.2d 1149, 1152 (Trial judge correctly ruled that the issue of liability was unresolved by an order granting partial summary adjudication because material facts necessary to adjudicate liability were disputed.). Accord, Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 OK 112, n. 26, 614 P.2d 576, 581 (An interlocutory summary adjudication is used when some of the facts in the case remain in controversy while others are not.) 9 Summary judgment is an adjudication on the merits of the controversy. Oklahoma Pub. Employees Ass'n v. Oklahoma Dep't of Central Servs., 2002 OK 71, ¶ 6, 55 P.3d 1072, 1076. 10 Cinco Enterprises, Inc. v. Benso, 1994 OK 135, 890 P.2d 866, 871 ("The party moving for summary judgment has the burden to prove the facts material to its claim and to show the absence of any factual dispute of the facts material to the claim or defense . . . [a] fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a claim or defense."). 11 Head v. McCracken, 2004 OK 84, ¶ 4, 102 P.3d 670, 674. 12 Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 9, 977 P.2d 1040, 1044. 13 In Zaloudek Grain Company v. CompSource, 2012 OK 75, ¶¶ 6-7, 298 P.3d 520, 522-523, the Court noted a standard of appellate review for a summary judgment in the context of the Court recasting an appeal to certified interlocutory review; and also explained that the issue presented involved statutory construction which demanded a de novo appellate review standard. 14 The scope of the Court's review should not be confused with the scope of the Court's remedial relief when reviewing a certified interlocutory order, which is similar to an appeal of a judgment, and includes the power to "reverse, vacate, or modify" the order just as it may reverse, vacate or modify a judgment or final order. 12 O.S. 2011 § 952 (a) & (b)(3). See § 952 (b)(3). 15 When reviewing a judgment the Court may reverse, vacate, or modify any anterior intermediate order involving the merits of the action or any portion thereof. 12 O.S.2001 § 952(a). An immediately appealable-by-right interlocutory order which is not appealed or a non-appealable uncertified interlocutory order may thus be subject to appellate review on appeal from the subsequent judgment. Okla. Sup. Ct. R. 1.40(f). The denial of a motion for summary judgment does not fall within the class of interlocutory orders appealable by right nor could it be certified for review by certiorari in advance of judgment. Eason Oil Co. v. Howard Engineering, 1988 OK 57, 755 P.2d 669, 672. 16 State ex rel. Bd. of Regents of Univ. of Oklahoma v. Lucas, 2013 OK 14, ¶ 10, 297 P.3d 378, 384. 17 State ex rel. Bd. of Regents of Univ. of Oklahoma v. Lucas, 2013 OK 14, ¶ 6, 297 P.3d 378, 382-383; Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 1, 64 P.3d 1113, 114; City of Lawton v. Intern. Union of Police, 2002 OK 1, n. 27, 41 P.3d 371, 376. 18 Jackson v. Okla. Memorial Hosp., 1995 OK 112, 909 P.2d 765, 767 (Appellant's assignments of error in a petition in error are deemed amended by that party's appellate brief, and a party may include any error or issue presented to and resolved by the trial court which is supported by the record.) 19 Generally, appellate court review is limited to the issues raised by the parties. Reddell v. Johnson, 1997 OK 86, ¶ 6, 942 P.2d 200, 202; Shero v. Grand Savings Bank, 2007 OK 24, ¶ 3, 161 P.3d 298. Accord, State v. Torres, 2004 OK 12, ¶ 7, 87 P.3d 572, 578 (When a dispute presents a public-law controversy, the Court may grant corrective relief upon any applicable legal theory dispositive of the case, whether raised sua sponte or by a party, when the legal theory is supported by the record on appeal.); Shorter v. Tulsa Used Equipment and Indus. Engine Services, 2006 OK 72, n. 52, 148 P.3d 864, 873 (When resolving a public-law question, we are free to choose sua sponte the dispositive public-law theory although the wrong one is advanced.) 20 Consolidated Grain & Barge Co. v. Structural Sys., Inc., 2009 OK 14, n.6, 212 P.3d 1168, 1170 ("Although a contract may be interpreted according to the law of the place where it is made and its performance is contemplated, the remedy available to enforce the contract is determined by the law of the forum."). Accord, Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 605 (In a tort matter we stated that "We begin our review of the trial court's summary judgment with the clear recognition that according to choice of law principles, Nebraska substantive law is controlling in the instant case. However, our own procedural law applies."); People's United Bank v. Kudej, 134 Conn.App. 432, 438, 39 A.3d 1139, 1143 (2012), quoting Zenon v. R.E. Yeagher Management Corp., 57 Conn.App. 316, 321, 748 A.2d 900 (2000) ("The ordinary rule is that where a cause of action arising in another [s]tate is asserted in our courts, we look to the laws of that [s]tate to determine all matters of substance involved in it, but that matters of procedure are governed by our own law...."). We also note that the parties' briefs agree that Oklahoma's procedural law applies in this appeal. We also note herein when those standards of appellate review used by Texas courts are the same as this Court when reviewing the issues presented by the parties herein. 21 Crown Asset Mgmt., L.L.C. v. Loring, 294 S.W.3d 841, 848 (Tex.App.-Dallas 2009, pet. denied); Aquila Sw. Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 235 (Tex.App.-San Antonio 2001, pet. denied). 22 "Neither FTC nor FTI ever advised plaintiff that it had to build a rail spur." FTC's Motion for Summary Judgment, O.R. at 403, 409. 23 FTC Answer Brief, at 12. 24 Plaintiff's Reply to Counterclaim, O.R. at 85, 88. 25 FTC's Motion for Summary Judgment, O. R. at 403, 406. This is consistent with Lincoln Farm's statement that it was informed "around June 9, 2008, that the NKCR no longer would allow railcars to be parked on the main track for loading." O.R. at 532. FTC also used the June 9th date. See note 3, supra. 26 Reply of Farming Technology, etc., O.R. 944, 947; appellate Answer Brief, at 12-13. 27 V.T.C.A., Bus. & C. § 2.202: Final Written Expression: Parol or Extrinsic Evidence Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (1) by course of performance, course of dealing, or usage of trade (Section 1.303); and (2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. 28 Coldwell Banker Whiteside Assoc. v. Ryan Equity Partners, Ltd., 181 S.W.3d 879, 886 (Tex.App.-Dallas 2006, no writ) (When terms in a contract are not specifically defined, we give the terms their plain, ordinary, and generally accepted meaning.); Donzis v. McLaughlin, 981 S.W.2d 58, 61-62 (Tex.App.-San Antonio 1998, no pet.) (Generally, only where a contract is first determined to be ambiguous may the court consider the parties' intent or interpretation and admit extraneous evidence to determine the true meaning of the instrument.); Monesson v. Champion Intern. Corp., 546 S.W.2d 631, 637 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.) (If a phrase is ambiguous, extrinsic evidence is admissible to show the intent of the parties, as well as custom or usage in the industry.). 29 Gilmore v. SCI Texas Funeral Servs., Inc., 234 S.W.3d 251, 259 (Tex.App.-Waco 2007, pet. denied); IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 130 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (the failure to perform the terms of a contract is a breach of contract). 30 Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 770 (Tex.App.-Dallas 2005, pet. denied); Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 434 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Nalle v. Taco Bell Corp., 914 S.W.2d 685, 687 (Tex.App.--Austin 1996 writ denied). 31 Gamma Group, Inc. v. Transatlantic Reinsurance Co., 242 S.W.3d 203, 212 (Tex.App.-Dallas 2007, pet. denied). 32 121 S.W.3d 742 (Tex.2003). 33 Universal Health Servs., Inc., 121 S.W.3d at 747-748. 34 Fort Worth Ind. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000); Martin v. Martin, 326 S.W.3d 741, 749 (Tex.App.-Texarkana 2010, pet. denied). 35 Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, 474-75 (1937); Martin v. Martin, 326 S.W.3d 741, 750-751 (Tex.App.-Texarkana 2010, pet. denied); Meru v. Huerta, 136 S.W.3d 383, 391 (Tex.App.-Corpus Christi 2004, no pet.); John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 21 (Tex. App-Houston [1st Dist.] 2000, pet. denied); Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 104 (Tex.App.-Houston [1st Dist.] 1994, writ denied). 36 Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, 474-75 (1937). Texas law states that a promise to do something in the future may be used to show a claim of fraud. But before a promise to do something in the future can be actionable fraud, a plaintiff must plead and prove that at the very time such promise was made the one making the promise did not intend to carry it out. Torres v. State, 605 S.W.2d 394, 396 (Tex.Civ.App.--Beaumont 1980, no writ). No fraud claim is before this Court. 37 See, e.g., Eastern States Petroleum Co. v. Port Terminal R. Ass'n, 161 S.W.2d 539, 541 (Tex.Civ.App. - Galveston) ("The spur track, which was the subject of the agreement in the instant case, was not constructed for the use of the public; it was not upon the railroad's right of way, and the railroad was under no duty to construct it or to maintain it for the use of the public after it was constructed; it was not available for the public for transportation . . . ."); Central of Georgia Ry. Co. v. Woolfolk Chemical Works, Limited, 122 Ga.App.789, 178 S.E.2d 710, 717 (Railway is under no obligation to provide a sidetrack where a private business desires the railway to construct a spur or sidetrack to its establishment over its private property so that more conveniently and economically it may handle its shipments.). 38 The question whether building a spur was part of an unstated or implied agreement is slightly different from the argument that building the spur was a contractually assumed risk of an unanticipated event where performance is not excused even when it depends upon a future act by a third party. The latter argument is treated herein in the context of the "delivery" required by the contract. 39 Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex.1984) ("If two constructions are possible, a construction rendering the contract possible of performance will be preferred to one that renders its performance impossible or meaningless."); Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109, 115 (Tex.1978) (same). 40 Janak v. FDIC, 586 S.W.2d 902, 906-07 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ). 41 Hollis v. Gallagher, No. 03-11-00278-CV, 2012 WL 3793288 (Tex.App.-Austin Aug. 28, 2012); Johnson v. Johnson, No. 02-10-00296-CV, 2011 WL 3426223 (Tex.App.-Fort Worth Aug. 2, 2011, no pet.). 42 See, e.g., Chevron Phillips Chem. Co., L.P. v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 52 (Tex.App.-Houston [14th Dist.] 2011, pet. denied) quoting Restatement (Second) of Contracts § 261 (1981) ("Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, its duty to render that performance is discharged, unless the language or the circumstances indicate the contrary."). Accord, Miller v. Mills Constr., Inc., 352 F.3d 1166, 1172-1173 (8th Cir.2003). 43 Although the parties discuss commercial impracticability as it relates to U. C. C. §§ 2-614, 2-615, they do not discuss these provisions as they relate to Texas law on objective and subjective impossibility, or the application of the Restatement (First) of Contracts or the Restatement (Second) of Contracts to the controversy before the Court. Because our holding is based upon the unambiguous nature of the language in the contract with the conclusion that Lincoln Farm did not breach the contract when it did not build a rail spur, we need not request briefs from the parties on these issues or attempt to apply them to this controversy. 44 Ellwood v. Nutex Oil Co., 148 S.W.2d 862, 864 (Tex.Civ.App.-El Paso 1941, writ ref.). 45 Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). 46 DaimlerChrysler Motors Co. v. Manuel, 362 S.W.3d 160, 179 (Tex.App.-Fort Worth 2012, no pet.). 47 A contract is ambiguous only if it is subject to two or more reasonable interpretations after applying the pertinent rules of construction. Certain Underwriters at Lloyd's v. KKM Inc., 215 S.W.3d 486, 491 (Tex.App.-Corpus Christi 2006, pet. denied) citing Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996) and J. M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). 48 Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). If a contract is ambiguous, a fact issue exists on the parties' intent that may be properly submitted to the trier of fact. Certain Underwriters at Lloyd's v. KKM Inc., 215 S.W.3d at 491 citing J. M. Davidson, Inc. v. Webster, 128 S.W.3d at 229 and Universal Health Servs., Inc. v. Renaissance Women's Group, P.A., 121 S.W.3d at 746. 49 Columbia Gas Transmission Corp., 940 S.W.2d at 589. 50 Certain Underwriters at Lloyd's v. KKM Inc., 215 S.W.3d at 491. 51 Columbia Gas Transmission Corp., 940 S.W.2d at 589. This standard is consistent with our standard of review discussed in Part II of the opinion herein. 52 Certain Underwriters at Lloyd's v. KKM Inc., 215 S.W.3d at 490. 53 DaimlerChrysler Motors Co. v. Manuel, 362 S.W.3d 160, 170 (Tex.App.-Fort Worth 2012, no pet.) citing, MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650-651 (Tex.1999) Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Heil Co. v. Polar Corp., 191 S.W.3d 805, 809-10 (Tex.App.-Fort Worth 2006, pet. denied). This standard is consistent with our standard of review discussed in Part II of this opinion. 54 Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d at 345, citing Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727 (Tex.1981). 55 Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d at 345, citing Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). 56 Nxcess Motor Cars, Inc. v. JP Morgan Chase Bank, N.A., 317 S.W.3d 462, 466 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) citing Tex. Bus. & Com.Code Ann. § 2.401(b) (Vernon 2009). 57 McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 655 (Tex.App.-Fort Worth 2004, pet. denied). 58 Adkins-Polk Co. v. John Barkley & Co., Limited, 297 S.W. 757, 761 (Tex.Civ.App.--El Paso 1927, writ dism'd) ("The question of delivery is determined by the facts, and when the facts as to delivery are undisputed, as here, delivery becomes a question of law."). This standard is consistent with our standard of review discussed in Part II of this opinion. 59 Anderson, Inc. v. Rose, 177 W.Va. 419, 352 S.E.2d 541, 548 (1986). See also Lakeview Gardens, Inc. v. Kansas, 221 Kan. 211, 557 P.2d 1286, 1290 (1976) ("Delivery may be either actual or constructive. Constructive delivery is a general term comprehending all those acts which, although not truly conferring a real possession on the vendee, have been held by construction of law equivalent to acts of real delivery."). Accord, Hubbell, Slack & Co. v. Farmers' Union Cotton Co. (Tex. Civ. App.) 196 S.W. 681, 685 (Tex.Civ.App.-Beaumont 1917, writ ref'd) (Court discussed constructive possession, constructive delivery, and actual delivery). 60 Pursuant to the common law, at the time of the potato sale agreement the potatoes were not at that time in the possession of the seller and no title to the potatoes passed at that time. See Owens v. Clark, 78 Tex. 547-550, 15 S.W. 101, 102 (1890) ("'By the common law, if the seller make a proposition, and the buyer accept, and the goods are in the possession of the seller, and nothing remains to be done to identify them, or in any way prepare them for delivery, the sale is complete, and the property in the goods passes at once."). Lincoln Farm had to harvest and store the potatoes for delivery before title passed. 61 Chevron Phillips Chem. Co., L.P. v. Kingwood Crossroads, L.P., 346 S.W.3d at 52, citing Robberson Steel, Inc. v. J.D. Abrams, Inc., 582 S.W.2d 558, 561 (Tex.Civ.App.-El Paso 1979, no writ). 62 Chevron Phillips Chem. Co., L.P. v. Kingwood Crossroads, L.P., 346 S.W.3d at 53, citing Toyo Cotton Co. v. Cotton Concentration Co., 461 S.W.2d 116, 118 (Tex.1970) ("One who contracts to render a performance or produce a result for which it is necessary to obtain the co-operation of third persons is not excused by the fact that they will not cooperate. This is a risk that is commonly understood to be on the promisor, in the absence of a provision to the contrary...."). 63 Ellwood v. Nutex Oil Co., 148 S.W.2d at 864. FTC relies upon an opinion without precedential value for the proposition that a seller must perform whatever is necessary to enable the seller to perform the seller's obligation. FTC Answer Brief, at 12, citing Tejas Power Corp. v. Amerada Hess Corp., No. 14-98-00346-CV, 1999 WL 605550, at *2 (Tex.App.-Houston [14th Dist.] Aug. 12, 1999, no pet.) (not designated for publication). Under Texas Rules, RAP, Rule 47.7, unpublished opinions have no precedential value but may be cited with the notation Not Designated for Publication. We conclude that the language in opinions such as Chevron Phillips Chem. Co., L.P. v. Kingwood Crossroads, L.P., 346 S.W.3d at 52-53 and Ellwood v. Nutex Oil Co., 148 S.W.2d at 864 explain Texas law. 64 We also note that the quotation used by FTC is followed with: "However, the common law of contracts also recognizes that an 'extraordinary circumstance may make performance so vitally different from what was reasonably to be expected as to alter the essential nature of that performance.' Thus, impossibility or impracticality of performance due to the unforeseen failure of a presupposed condition may excuse the seller's breach." Tejas Power Corp. v. Amerada Hess Corp., No. 14-98-00346-CV, 1999 WL 605550, at *2, not designated for publication. Because we hold that the partial summary adjudication failed to show a breach by Lincoln Farm, we need not address defenses of impossibility or impracticality of performance as such could hypothetically apply to Lincoln Farm. 65 In the absence of an express "Buyer's option" term in a contract, as we have before us, a reasonable interpretation of the disputed language could support both parties' arguments on the presence or absence of sole discretion, or a "Buyer's option." However, such an ambiguity would present an issue for the trier of fact, and would require reversal of the summary adjudication in Texas. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d at 589; Certain Underwriters at Lloyd's v. KKM Inc., 215 S.W.3d at 491. 66 Lincoln Farm's Brief-in-Chief, at 22-23, citing Jon-T Chemicals, Inc. v. Freeport Chemical Co., 704 F.2d 1412, 1415-1416 (5th Cir.1983) (contract that delivery of phosphoric acid was to be made "by rail unless otherwise agreed" meant that in the absence of a mutual agreement for substitute delivery by truck, the party, Jon-T, had no contractual right, or right pursuant to the Texas version of the U. C. C., to require delivery by truck when railcars were unavailable). 67 FTC's Reply, O.R. at 944, 947, citing Exhibit 4, p. 63, line11; p. 64, line 4; p. 67, line21 to p. 68 line 2; p. 70, lines 12-17; p. 114, lines 12-14. 68 FTC's Reply, Exhibit 4, pg. 103, O.R. at 983. 69 Id. Ex. 4, pg. 68, O.R. at 981. 70 Texas courts have stated that this maxim means that even though contract terms would have been implied when absent, the expression of a class implies the exclusion of other terms that would have been implied. In re Estate of Anderegg, 360 S.W.3d 677, 681 (Tex. App. El Paso 2012) (same). In a strict sense, those "other terms" may not include "buyer's option" or "seller's option" as implied terms to all provisions of a contract that are silent as to such terms. One reason for this limitation on application of such terms is that implying their application universally to every provision in a contract would create a lack of mutuality of obligation, i.e., an unenforceable illusory contract. See, e.g., City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 725 (Tex.App.-Fort Worth 2008, pet. dism'd), (lack of mutuality in obligation creates an illusory contract and is unenforceable). 71 See, e.g., Texas Bd. of Chiropractic Examrs. v. Texas Med. Ass'n, 375 S.W.3d 464, 482 n. 24 (Tex.App.-Austin 2012, pet. denied), citing Liberty Mut. Ins. Co. v. American Emp'rs Ins. Co., 556 S.W.2d 242, 245 (Tex.1977) (proposition that construction of a contract may include the canon of statutory construction known as expressio unius est exclusio alterius); In re Estate of Anderegg, 360 S.W.3d 677, 681 (Tex. App. El Paso 2012) (same). 72 Section 2-614 of the U.C.C. is identical to Section 2.614 of the Texas Business and Commerce Code. Virginia Power Energy Mktg., Inc. v. Apache Corp., 297 S.W.3d 397, n. 9, 404 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) ("Section 2.614 of the Business and Commerce Code is identical to UCC section 2-614."). Section 2.614 provides in part, that: "Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted." Tex. Bus. & Comm.Code Ann. § 2.614(a) (Vernon 2009). 73 Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 317-318 (Tex.App.-Dallas 2008, no pet.) ("A 'transaction' is defined as a set of facts that gives rise to the cause of action premised thereon."); Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587 (Tex.App.-Austin 2007, pet. denied.) (Court applied language that is quoted in Brewster in the context of explaining the relation-back doctrine and a statute of limitations for new, distinct, or different transactions or occurrences.). 74 In re E.R., 385 S.W.3d 552, 567, n. 27 (Tex.2012) (an affirmative defense may not be raised for the first time on appeal); Blackard v. Fairview Farms Land Co., Ltd., 346 S.W.3d 861, 870 (Tex.App.-Dallas 2011, no pet.) (To preserve a complaint for appellate review, a party generally must present it to the trial court by timely request, objection, or motion stating the specific grounds, and obtain a ruling.). 75 Transportation Ins. Co. v. WH Cleaners, Inc., 372 S.W.3d 223, 227 (Tex.App.-Dallas 2012, no pet.); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).

ffacf13c-90b0-4fc3-8eea-145b2a7404f7

Joe Brown Company, Inc. v. Melton

oklahoma

Oklahoma Supreme Court

JOE BROWN COMPANY, INC. v. MELTON2013 OK 66Case Number: 109306Decided: 07/02/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JOE BROWN COMPANY, INC. and AMERICAN INTERSTATE INSURANCE COMPANY, Petitioners,v.ADRIAN G. MELTON, JR. and THE WORKERS' COMPENSATION COURT, Respondents. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. I ¶0 The respondent, Adrian G. Melton, Jr., received work-related injuries in November 2009. A three-judge panel reversed some parts of an award by the trial judge and affirmed other parts. On appeal, the Court of Civil Appeals discussed how the standard of review in the case is affected by 85 O.S.2011, § 340(D)(4), which changed the standard of review from "any competent evidence" to "against the clear weight of the evidence." That statute also requires the new standard to be applied regardless of the date of injury. The Court of Civil Appeals concluded it must apply the new standard. This Court granted certiorari. THE DECISION OF THE COURT OF CIVIL APPEALS IS VACATED. THE DECISION OF THE THREE-JUDGE PANEL IS SUSTAINED IN PART AND VACATED IN PART. Robert Paczkowski, ZLOTOGURA & ZLOTOGURA, Edmond , Oklahoma, for Petitioners.Richard A. Bell, Heather Adrienne Lehman, THE BELL LAW FIRM, Norman, Oklahoma, for Respondents. WINCHESTER, J. ¶1 The claimant, Adrian Melton, was a truck driver for the employer, Joe Brown Company, Inc. On November 16, 2009, in the process of washing out his truck in preparation for a load he was to transport, a two-to-three hundred pound wash rack fell on him, causing injury. On October 15, 2010, the Workers' Compensation Court found that he had been injured while working within the scope of his employment. He was awarded eleven weeks of temporary total disability (TTD), and also granted permanent partial disability (PPD) for his low back and neck injuries and for psychological overlay. The employer appealed to a three-judge panel, which vacated some parts of the award and sustained others. ¶2 Employer then sought review of the panel's decision. On November 18, 2011, the Court of Civil Appeals (COCA) vacated and remanded the award for permanent partial impairment concerning the claimant's low back and neck for failure to comply with the AMA Guides, 5th Edition. In addition, that court decided the "any competent evidence" standard of review was inconsistent with 85 O.S.2011, § 340(D). The new statute became effective on August 26, 2011. In relevant part, the statute provides: "After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds: "1. The Court acted without or in excess of its powers; "2. The order or award was contrary to law; "3. The order or award was procured by fraud; or "4. The order or award was against the clear weight of the evidence." Emphasis added.1 ¶3 Accordingly, the COCA implemented the "against the clear weight of the evidence" standard. The claimant seeks review, arguing that the COCA incorrectly applied the 2011 standard instead of the any competent evidence standard, which was the relevant standard of review before the 2011 statutory change. See Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 13, 684 P.2d 548, 552. Both parties petitioned for certiorari, and this Court granted both petitions. ¶4 Nine days after the predecessor statute to § 340(D), 85 O.S.Supp.2010, § 3.6, became effective, the COCA applied the "any competent evidence" standard of review in Dunlap v. Multiple Inj. Trust Fund. This Court, by order, held that the COCA properly applied the any competent evidence standard, because the claim for benefits occurred prior to the effective date of the amendment, and the amendment applies prospectively. Dunlap v. Multiple Inj. Trust Fund, 2011 OK 14, ¶ 1, 249 P.3d 951, 952. The Dunlap holding was also cited as authority in Nomac Drilling LLC v. Mowdy, 2012 OK 45, ¶ 8, 277 P.3d 1282, 1284. More recently, this Court in Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶ 11, 295 P.3d 1107, 1111, construed 85 O.S.2011, § 340(D) for the first time. The Court held that the standard of review determined on the date of the injury is a substantive right requiring prospective application. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113. ¶5 Similar to the circumstances in Dunlap, the claimant's injuries took place before the effective date of the new statute. Indeed, the Court of Civil Appeals acknowledged that the new standard did not go into effect until "[s]hortly after the completion of briefing in this case…." Opinion at 2, ¶ 2. Because the injury occurred before the new standard went into effect, the "any competent evidence" standard of review is the correct standard to be applied. ¶6 Regarding temporary total disability, the COCA correctly acknowledged that the benefits are limited to eight weeks for non-surgical, soft tissue injuries, "unless there is objective medical evidence of a permanent anatomical abnormality." 85 O.S.Supp.2007, § 22(3)(d)2; Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47,¶ 9, 186 P.3d 952, 955. However, § 22(3)(e) provides, in describing what is included in the phrase "permanent anatomical abnormality," that "the Court may consider if there is credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired."3 The COCA observed that both claimant's and employer's doctors acknowledged that the claimant was at maximum medical improvement, and released him for work with permanent restrictions. The COCA correctly concluded that the award by the three-judge panel should be sustained. Although the COCA applied the incorrect standard of review, an application of the correct standard does not change the result. ¶7 Pertaining to the claimant's award for low back and neck impairment, the COCA vacated and remanded for "cure of evidentiary deficits." We conclude that the standard of "any competent evidence" supports the award by the three-judge panel and should be sustained. As for the contention that pertains to continuing medical maintenance, the portion of the award recommending it was sustained by the three-judge panel, by the COCA, and we agree that it should be sustained. ¶8 Citing Adecco, Inc.v. Dollar, 2011 OK CIV APP 43, 254 P.3d 729, (hereinafter Dollar) the COCA sustained an award of psychological overlay to the claimant. In the Dollar case the same chiropractor as in the case now before us, Dr. Hugh G. McClure, D.C., testified to Patricia Dollar's psychological overlay. As in the claim now before this Court, Dr. McClure testified that he administered the Zung Depression Test and that Dollar had minimum to mild depression. The trial court found that Dollar had sustained a 3% PPD psychological overlay. The COCA, Division No. 4, sustained the award. ¶9 The employer in the Dollar case argued that the report of Dr. McClure was deficient because (1) the Zung Depression Test had not been shown to constitute "objective medical evidence" under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and (2) because a chiropractor is not qualified to testify as an expert to the degree of a patient's psychological impairment resulting from a work-related injury. Dollar, 2011 OK CIV APP 43, ¶ 12, 254 P.3d at 732. ¶10 The issue is whether a chiropractor's scope of expertise is limited to the areas of practice covered by a chiropractor's license under Oklahoma Statutes. The statutes provide by law for the licensing of chiropractors. The scope of the practice of a chiropractor is provided by 59 O.S.2011, § 161.2(A): "A. Chiropractic is the science and art that teaches health in anatomic relation and disease or abnormality in anatomic disrelation, and includes hygienic, sanitary and therapeutic measures incident thereto in humans. The scope of practice of chiropractic shall include those diagnostic and treatment services and procedures which have been taught by an accredited chiropractic college and have been approved by the Board of Chiropractic Examiners." ¶11 In his deposition, which is claimant's exhibit number 2, Dr. McClure admitted, as he was being questioned by Mr. Melton's attorney that he is neither a psychologist nor a psychiatrist, and when asked if he either took, taught, or did any sort of further education in the areas of psychology, psychological teaching or testing, Dr. McClure testified he had taken continuing education in the Worker's Compensation system and other seminars. But he still did not say that any of that training included psychology. ¶12 A chiropractor's testimony about a matter within that person's field of professional knowledge qualifies the chiropractor as an expert. The statutes require a chiropractor to be examined in "technical, professional and practical subjects that relate to the practice of chiropractic including, but not limited to, chiropractic principles, anatomy, histology, physiology, symptomatology, orthopedia, chemistry, spinography, diagnosis, sanitation and hygiene, pathology, public health service and adjustology." 59 O.S.2011, § 161.8. The Board of Chiropractic Examiners must "also examine each applicant in the art of chiropractic adjusting, x-ray, diagnostic laboratory procedures, physiological therapeutics and other subjects taught by accredited chiropractic colleges." 59 O.S.2011, § 161.8. Dr. McClure testified that he is on the Board of Chiropractic Examiners, yet he did not testify that he had any formal psychological training. ¶13 In claimant's exhibit number 1, Dr. McClure reported his conclusion that Mr. Melton had a psychological overlay, that Dr. McClure had administered the Zung Depression Test and that the test indicated Mr. Melton had severe to extreme depression. The report reveals Dr. McClure's opinion that Mr. Melton had a twenty-five percent partial impairment to the body as a whole due to psychological overlay. The three-judge panel found an eighteen percent permanent partial disability to the "whole man psychological overlay" with the parenthetical "depression" and with the additional parenthetical "claimant's credible testimony - Dr. McClure's report - severe and extreme depression -developed from chronic pain syndrome - can't have surgery due to heart." ¶14 Title 5, § 161.12(B) prohibits certain acts by chiropractors that are routinely performed by medical doctors: "(5) Performing or attempting to perform major or minor surgery in this state, or using electricity in any form for surgical purposes, including cauterization" and "7. Unlawfully possessing, prescribing or administering any drug, medicine, serum or vaccine." ¶15 The COCA's Dollar opinion observes that this Court has never specifically held that a licensed chiropractor's scope of expertise, for worker's compensation purposes, should be considered equivalent to that of a medical doctor. Based on that observation, COCA concluded that the Oklahoma legislature had indicated chiropractors were equivalent to medical doctors. Dollar, 2011 OK CIV APP 43, ¶ 18, 254 P.3d at 734. That court, as support, cites what has now been codified as 85 O.S.2011, § 326(D), which provides: "The term 'physician' as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist. The Court may accept testimony from a psychologist if the testimony is requested by the Court." ¶16 But § 326(D) does not mean that a chiropractor may diagnose depression because a chiropractor comes within the definition of "physician." A chiropractor is not the equivalent of a medical doctor who has some training in psychology. Because all of the medical occupations listed in § 326(D) have been defined as physicians does not mean they are equally competent to diagnose depression based on the "physician's" administration of the Zung Depression Test and the patient's oral report to the physician of feelings of depression. If such were the case, a dentist or an optometrist could make the same diagnosis because each is defined in the statute as a "physician." ¶17 We conclude that a chiropractor is not qualified as an expert in diagnosing psychological illnesses such as depression. The report of a chiropractor as an expert in the field of psychology, as to a claimant's psychological overlay, is inadmissible and therefore error. The three-judge panel's award of permanent partial disability benefits for psychological overlay and the award of continuing medical maintenance in the form of psychotropic medications are vacated. THE DECISION OF THE COURT OF CIVIL APPEALS IS VACATED. THE DECISION OF THE THREE-JUDGE PANEL IS SUSTAINED IN PART AND VACATED IN PART. CONCUR: REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ. CONCURS IN PART; DISSENTS IN PART: WATT, J. NOT PARTICIPATING: COLBERT, C.J. FOOTNOTES 1 The change in the standard of review from "any competent evidence" to "clear weight of the evidence" became effective by the amendment to 85 O.S.2001, § 3.6 enacted by 2010 Okla.Sess.Laws, ch. 403, § 1, The legislature repealed § 3.6 in 2011 Okla.Sess.Laws, ch. 318, § 87, which retained the change in the standard of review, and added the language making the change retroactive. 2 Repealed by 2011 Okla.Sess.Laws, ch. 318, § 87. 3 This language is now included in 85 O.S.2011, § 332(M).

c45b4504-7d48-47b1-b02c-b3e8ef0255e3

Valued Services, LLC v. Tregenza

oklahoma

Oklahoma Supreme Court

VALUED SERVICES, L.L.C. v. TREGENZA2013 OK 79Case Number: 110750Decided: 10/01/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. VALUED SERVICES, L.L.C. and AMERICAN INTERNATIONAL SOUTH, Petitioners, v. LESLIE TREGENZA and THE WORKERS' COMPENSATION COURT, Respondents. ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION I ¶0 Workers' Compensation claimant filed a claim for a head injury and psychological overlay for PTSD, depression and post-traumatic headaches as a result of robberies on her employer's premises. She was awarded permanent total disability by the trial court, and a three-judge panel of the Workers' Compensation Court affirmed the order. On appeal, the Court of Civil Appeals vacated the award because the award was not supported by an Independent Medical Examiner (IME) or the claimant's treating physician. This Court previously granted the petitions for certiorari of the claimant and employer. OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; ORDER OF THE THREE JUDGE PANEL OF THE WORKERS' COMPENSATION COURT IS AFFIRMED. Kevin D. Berry, Reagan L. Madison, Tulsa, Oklahoma, for Petitioners, Joey Chiaf, Oklahoma City, Oklahoma, and John C. McMurry, Oklahoma City, Oklahoma, for Respondents. OPINION WATT, J.: FACTUAL BACKGROUND ¶1 The business premises of First American Cash Advance, owned by Petitioner/Employer Valued Services, L.L.C., a check cashing business, was robbed twice. The first robbery occurred on December 31, 2008, and the second was on April 7, 2009. Respondent/Claimant Leslie Tregenza was the branch manager and the only employee on the premises during both robberies. The first was an armed robbery by a man wearing something covering his face and a ball cap. In the second robbery on April 7, 2009, during which she was ordered to turn off the security alarm, two men stole all of the cash the employer had on hand in the office. These men did not have guns. However, one of the robbers threw an empty plastic cash drawer at her head. She did not return to work for Employer after the second robbery. PROCEDURAL BACKGROUND ¶2 Claimant filed her Form 3 on October 19, 2009, alleging an accidental injury arising out of and in the course of her employment. She alleged she sustained an injury to her head with psychological overlay in the form of post-traumatic stress disorder (PTSD) and PTSD headaches. She sought permanent total disability (PTD) as a result of her injuries, claiming she is unable to work or to be out in public. ¶3 The trial court heard testimony, admitted evidence from both parties, and ruled as follows: THAT the Court finds that the claimant is permanently totally disabled due to injury to her HEAD and PSYCHOLOGICAL OVERLAY. The claimant was struck in the head with a cash drawer and developed post traumatic headaches. Moreover, claimant has severe post traumatic stress disorder and depression. As a result of claimant's HEAD injury combined with PSYCHOLOGICAL OVERLAY the Court agrees with Dr. Munneke "that this individual is PERMANENTLY TOTALLY DISABLED and will be unable to return to the work force in any form or capacity whatsoever. Vocational rehabilitation and retraining, in my opinion, with this individual is not an option". ¶4 Additionally, the court awarded claimant continuing medical maintenance in the nature of four annual office visits and prescription medication under the care of Dr. Janita Ardis, a psychiatrist. ¶5 Employer made only a probative value objection to Dr. Munneke's report. It timely sought review of the trial court's order before a three judge panel of the Workers' Compensation Court En Banc. One of the issues Employer raised as error was that the finding of compensable injuries to "Claimant's head and psychological overlay was contrary to law and against the clear weight of the evidence and should be reversed." Further, Employer alleged: The Trial Court' determination that Claimant sustained a head injury was not supported by her testimony or treatment records and Claimant's medical failed to recognize long standing migraines and such finding should be reversed. ¶6 On May 16, 2012, the three judge panel unanimously affirmed the trial court's order, finding it was "not against the clear weight of the evidence nor contrary to law . . . ." Employer appealed and the case was assigned to Div. I of the Oklahoma Court of Civil Appeals (COCA). On November 19, 2012, COCA held that the PTD award was against the clear weight of the evidence and reversed the trial court's order. ¶7 COCA granted Claimant's petition for rehearing and issued a substitute opinion on December 20, 2012.1 We previously granted the petitions for certiorari filed by both Claimant and Employer. ¶8 In its opinion currently under review, COCA held, at ¶¶26, 27: [A] claim submitted by an employee for compensation for permanent disability was required to be 'supported by competent medical testimony ... which shall include an evaluation by the treating physician or an independent medical examiner if there is no evaluation by the treating physician.' 85 O.S. Supp. 2005 §17(A)(1). Claimant's claim for permanent total disability was not supported by a medical report from either a treating physician or an independent medical examiner. The order of the Workers' Compensation Court finding Claimant was permanently totally disabled was not supported by competent evidence and must be vacated. [footnote omitted] ¶9 In a footnote following ¶27, COCA explained that the 2005 amendment of 85 O.S. §17(A)(1), in effect at the time of Claimant's injury, removed the language previously found in 85 O.S. Supp. 2002 §17(A)(1) "a physician, including, but not limited to," in reference to an IME or a treating physician. COCA indicates that although the prior statute's language was broad enough to include a medical expert's testimony, the 2005 statute required the report of the treating physician or the IME to support the award given. In essence, COCA holds the amendment eliminated the medical expert as a witness who could give "competent medical testimony" on which to base an award. Since the appellate court found the treating physician did not give an opinion that Claimant was PTD, it held the trial court's award could not be sustained.2 We do not believe, however, that §17(A)(1) was intended to limit the testimony to only the treating physician or an IME. The statute requires only that the award be supported by "competent medical testimony which shall be supported by objective medical findings" and which shall "include" an evaluation by the treating physician or an IME if there is no evaluation by the treating physician. COCA's requirement that the PTD award must be "supported" by either the treating physician or a court-appointed IME improperly restricts the trial court from considering any evidence which is "competent medical testimony". ¶10 We discussed this issue in Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557. We stated at paragraph 14: We now turn to the text of 85 O.S. Supp. 2005, § 17(A). A summary of a facial reading of subsection 17(A) follows. Subparagraph (A)(1) places the responsibility for deciding disability with the workers' compensation court, it mandates that the court shall have medical evidence from the treating physician or an independent medical examiner for each claim, and it permits the court to have medical evaluations and opinions addressing compensability and permanent impairment from other physicians. It assigns the same meaning to the term 'physician' as set out in Section 14 but adds that 'physician' shall include a person licensed by another state who would be qualified to be a licensed physician under the laws of this state. Section 14 defines 'physician' to mean 'any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist.' 85 O.S. Supp. 2005, § 14(E). [emphasis added] ¶11 Although there is no issue of a rebuttable presumption3 in the present case, COCA's holding comes very close to requiring the trial court to award compensation "within the range" of opinions of the treating physician and an IME. This was formerly required in 85 O.S. Supp.2005, §17(A)(2)(b), which we held to be unconstitutional because it restricted the workers' compensation court's determination of impairment and disability. See Conaghan, 2007 OK 60,¶19, 163 P.3d at 564. We held this invaded the court's independence and discretion to accord the appropriate weight or probative value to the "objective medical evidence" as the trier of fact. The trial court must be free to find the facts and apply the law to the facts. COCA's holding also improperly restricted the trial court's consideration of competent evidence to that of the treating physician, Dr. Johnsen, who found Claimant was not PTD. EVIDENCE ¶12 Claimant testified that during the first robbery, the man made her go into a back room and sit down when he pulled a gun out of his back pocket. She testified she thought she "was dead." After he left, she discovered the panic button was not working and called the police. As to the second robbery, she testified the empty plastic cash drawer thrown at her hit her in the head, knocked her into the filing cabinets and caused her to fall backward over a fan, onto the floor. When they left, she locked the door and called 911. She testified she has a problem with headaches which she associates with the head injury and "triggers" her to recall the robberies, which lead to severe headaches. She also said she now has memory problems which she did not have before the robberies. ¶13 She said she rarely leaves her home unless someone goes with her. She sleeps with a firearm. She obtained a "conceal and carry" permit after the second robbery. She stays awake while her husband sleeps and sleeps when he is awake. She has received, and at the time of trial was still receiving, psychiatric treatment for her PTSD. She has developed several phobias.4 ¶14 On cross examination, Claimant said she had only previously taken antidepressants after the birth of her baby. She had postpartum depression and was going through a divorce at the time. She stated she had migraines before the robberies "in my pregnancies." She also stated she was in a car accident between the time of the two robberies. She stated she got a neck and back injury which caused knots in the back of her neck and tension headaches. Although surgery was recommended, she declined to do it. Claimant also testified she had gone out of town by herself for particular events. She explained that in April, 2010, she went to Kansas because her father had a heart attack. It is a two and a half hour drive. In May, 2010, she went to visit her parents in Kansas "for a birthday present." In June, 2010, she traveled to her daughter's graduation, but she did not go alone. She only does yard work if her husband is home. If he is away, a neighbor across the street watches her through the window. As to the job she held, working in a church flower shop in Yukon, she said she quit because the owner of the shop, a friend from her Bible study, wanted her to branch out to make deliveries beyond Yukon. She admitted when making deliveries, she took her husband or a family member along with her in the delivery vehicle. She did not want to tell the owner of this, as "it was weighing heavy on my heart that I hadn't told her that I was taking family members or my husband with me." She quit and never told her boss of her delivery practices. ¶15 The written medical opinion of Dr. Munneke, Claimant's expert witness, was attached to his deposition, Claimant's Exhibit 1. Dr. Munneke diagnosed Claimant with post-traumatic headaches, depression and post-traumatic stress disorder. He gave his opinion that Claimant was permanently totally disabled. He stated he did not believe Claimant would be able to return to work because of her PTSD. He based this opinion5 on his examination of Claimant; the medical opinions of other doctors, including Dr. Janita Ardis, [a psychiatrist who was treating Claimant at the time who opined she could not work]; and his review of a packet of reports and evaluations from the office of Dr. David Johnsen and the psychological team who treated Claimant for approximately two years. Additionally, Dr. Munneke considered the report of Claimant's witness Lon Huff, a vocational rehabilitation counselor who evaluated her, and the evaluation of Employer's witness representing C.A.R.E., which was still being finalized at the time. Lon Huff's report found her to have transferable skills, but because of her PTSD and the medications she was taking, he believed retraining would not be an option for Claimant. However, Dr. Munneke stated he believed the medications she was taking were reasonable and necessary and in accordance with the diagnoses she has been given. She has also developed several phobias which leads Dr. Munneke to think she will not be able to return to the work force. She rarely leaves her home, although she may leave to go to the doctor. She may go to the grocery store with her husband, but remains in the car with the doors locked. He said she stated she feels like a prisoner. ¶16 Dr. Munneke testified he had reviewed the reports from Dr. Johnsen's office. He argued the report finding Claimant was not PTD and that she had reached maximum medical improvement (MMI) as of September 14, 2010, was not from Dr. Johnsen, but from a licensed clinical social worker from his office. Dr. Munneke agreed, however, that Dr. Johnsen's name was on the report, also.6 ¶17 Dr. Munneke testified that her medical records show her physical limitations in returning to work relate to the fact that she doesn't like to leave the house. She's afraid of people in general. Her friends and family have to come to the house. She doesn't go to the park. She won't open the door, walk her dogs or go shopping. She goes with her husband to the grocery store but stays in the car with the doors locked. She's afraid to get the mail. She has constant fear and has nightmares. She developed Shingles because of the stress. She does not watch the news on television and will only watch certain shows. She gets frequent headaches requiring her to take medication and get in a dark room. Dr. Munneke's opinion that Claimant is PTD was not changed because of Dr. Johnsen's report finding MMI had been reached or that Claimant can work with the restriction of limited exposure to the general public. He stated his opinion was offered within a "reasonable degree of medical certainty." ¶18 Employer contends Claimant did not prove she had a physical injury because she was not treated for her head injury. On that issue, COCA held: Based on this record, the trial court and the three-judge panel found Claimant sustained accidental personal injury to the head. The Court's finding as to causation need not be supported by medical evidence. Brown v. Mom's Kitchen, LLC, 2004 OK CIV APP 66, 96 P.3d 808, 810. It may rely on direct or circumstantial lay evidence. Adair Public Schools v. Haley, 2005 OK CIV APP 83, 122 P.3d 490, 492. Claimant's testimony supports the trial court's finding and therefore the order rests upon competent evidence. ¶19 Employer responds that COCA erred in holding the significant issue involved was causation. Rather, Employer contends the court was called upon to decide if Claimant suffered a physical head injury at all in order to make her mental claim compensable. While Employer denies that causation is an issue with regard to Claimant's head injury, for which lay testimony will suffice, we disagree. Employer raised the issue that Claimant's headaches did not arise because of her head injury during the April 7, 2009 robbery, but because of Claimant's car accident occurring between the time of the two robberies. ¶20 Mr. Huff, the vocational rehabilitation evaluator, stated Claimant has the mental ability and the transferable skills that could be used to succeed in vocational training at the vocational-technical level and possibly the community college level. However, he did not believe Claimant was a candidate for vocational rehabilitation or for work in any full-time setting. He described the specific problems he believed caused him to change his mind as to her ability to be a candidate for vocational rehabilitation: I believe, first of all, her fear, her stated fear, which is consistent with the information provided. Constant fear makes one's performance on a job difficult. I mean, if one's in constant fear they don't perform as well. Secondly, the nightmares and anxiety, that would be an indicator that she's not alert at all times. Her memory difficulties and the fact that she no longer drives, or she drives very little, and fear of the public are all factors that tell me she couldn't work. As I indicated earlier, even if we were to consider employment in the home, at some point she's going to have to communicate with the public on a regular basis just to get the work. And I don't believe she could do that. ¶21 Mr. Huff was asked why Claimant had a fear of going into the public. He answered: She cannot deal with the unexpected, cannot deal with new things or things that are not planned out or structured. Even the one comment about her possibly working by a physician, he indicated she would have to be working with somebody in order to become accustomed to the situation. I don't agree that she could do that. But even that is an indicator that she cannot function in a situation where things are not planned out and she does not know who is going to be there. ¶22 He said she even asked someone in his office how many people would be present in his office before she saw him. He reiterated that even if she were to work from home, it would eventually become necessary to communicate with people outside. He further said: The point is, I don't see how she can do any work in her home with concentration difficulties and the need to even focus just briefly with the public. With her memory difficulties too, I wouldn't want to trust her with any of my books. ¶23 He stated that over thirty years as a vocational rehabilitation counselor he has worked with people with post-traumatic stress and that her complaints were not inconsistent with that. AUTHORITY ¶24 Lay testimony is admissible to prove causation in workers' compensation claims. See Miles v. Frontier Plastic Fabricators, 1999 OK 18, 976 P.2d 1051, citing Collins v. Halliburton Services, 1990 OK 118, ¶8, 804 P.2d 440. The trial court was free to apply whatever weight and credibility it believed was appropriate to Claimant's testimony. Claimant testified she was hit in the head at the time of the robbery on April 7, 2009, and associated that assault with the severe headaches which began thereafter. She testified the car accident, between the time of the two robberies, caused tension and knots in the back of her neck. She described the severe headaches after the robbery as requiring medication and going into a dark room. Although she stated she had had migraines previously, they were not close in time to the robbery or the car accident, having occurred during her pregnancies. ¶25 In Wal-Mart Stores, Inc. v. Reinholtz, 1998 OK 11, 955 P.2d 223, this Court considered the necessary element of a physical injury, pursuant to 85 O.S. Supp. 1992 §3(7)(c),7 in the pursuit of a claim based on psychological overlay. The claimant therein was raped by a supervisor of Employer. Claimant sought benefits for her psychological injury, as well as a back injury and a skin rash. The back injury was found to be compensable and she was awarded benefits for her psychological overlay claim. This Court made clear that Claimant no longer received treatment for her back injury,8 but that it sufficed to sustain continuous treatment for her psychological overlay claim.9 The statute in Reinholtz was similar to the pertinent statute in this case. The definition of "injury" or "personal injury" required mental injuries only to be "accompanied" by physical injury, not to be caused by it. ¶26 In the same way in the case before us, the head injury accompanied the psychological claims. However, Claimant was not required to prove it caused them. We find that Employer's evidence acknowledged Claimant experienced headaches as a result of the robbery. Although he noted that Claimant was not treated for a physical injury, Dr. William Jones, Employer's expert witness, stated in his written report of June 21, 2011: Pain Diagram and Current Complaints of allegedly injured body parts: According to the patient, her head hurt for a few weeks but nothing now. . . . ¶27 The report is dated more than two years after the second robbery. The decreased pain he noted at that time was consistent with Claimant's testimony and the report of Dr. Munneke. Dr. Jones' recognition of head pain for a few weeks after the robbery is inconsistent with finding no head injury occurred. Dr. Jones stated Claimant was not treated for a physical injury in connection with the robberies, but he acknowledged the head injury occurred, and Claimant testified it led to severe headaches. Therefore, we agree with COCA's ruling that this was competent evidence of a physical injury which accompanied her mental injury of depression, PTSD and post-traumatic headaches. ¶28 "Permanent total disability" was defined by 85 O.S. Supp. 2005, §3(20) as follows: "Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation; loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability; ¶29 The Workers' Compensation Court received competent evidence that Claimant is permanently totally disabled under the definition above. Although she is still receiving ongoing psychiatric care, credible competent evidence was received that she is not a candidate for vocational rehabilitation or future employment. While Claimant's evidence was disputed, this Court may not weigh the evidence received. See Williams Companies, Inc. v. Dunkelgod, supra, n.1; Parks v. Norman Municipal Hospital, supra, n.1. ¶30 The opinion of the Court of Civil Appeals is vacated, and the order of the three judge panel is affirmed. ¶31 OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; ORDER OF THE THREE JUDGE PANEL OF THE WORKERS' COMPENSATION COURT IS AFFIRMED. ALL JUSTICES CONCUR FOOTNOTES 1 COCA reconsidered the evidence on rehearing under the "any competent evidence" standard of review announced in Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548, because Claimant's injury occurred on April 7, 2009, prior to the legislative revision of the workers' compensation statutes effective August 26, 2011. See Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, 295 P.3d 1107, in which this Court held that the appropriate standard of review on appeal in workers' compensation cases is that which was in effect at the time of the claimant's injury. 2 There was no IME appointed in this case. Although Claimant contends Dr. Munneke, her expert medical witness, is a "certified IME" in the Workers' Compensation Court, there is no order in this case appointing him specifically in that capacity. 3 In Conaghan, 163 P.3d at 563, the workers' compensation court required the court-appointed IME to rebut the presumption in favor of the treating physician. We held the court misconstrued §17(A)(2)(a) in so holding. We stated: Instead, the language in §17(A)(2)(a) - 'determination of the existence or extent of physical impairment shall be supported by objective medical evidence, as defined in Section 3' - indicates the contrary. 4 Because the robberies were committed by African-American males, Claimant now has a fear of all African-American males. She panics if she is in the same room with one. None of the men who robbed Employer have been caught, and she stated she is afraid of being confronted by them in the future. 5 Dr. Munneke testified that after reviewing the medical records and performing a physical on her that she fell "under a Class IV on Table 14-4 on page 363 on the Fifth Edition of the Guides and had 75 percent impairment due to her posttraumatic stress disorder and subsequent depression . . .[a]nd she also had 10 percent impairment to the body as a whole due to her posttraumatic headaches, secondary to her incident that occurred when she was struck in the head on the 7th of April of 2009." He also testified he "felt that she was permanently totally disabled due to both medical and psychiatric conditions and would be unable to return to the work force." Deposition of John Munneke, M.D., December 20, 2011, page 8. 6 In the report of May 6, 2010, from Dr. Johnsen, the psychologist, he opined Claimant should reach MMI in about 12 to 16 weeks, which would place the date for MMI at approximately September 9, 2010, using the longer period in his estimate. 7 Reinholtz, 955 P.2d at 225, n.1. 8 See Reinholtz, 955 P.2d at 224, ¶3. 9 See Reinholtz, 955 P.2d at 224, ¶¶19-20

6372010a-c0b4-4be4-b767-68924ac5a459

Sheffer v. Carolina Forge Company, LLC

oklahoma

Oklahoma Supreme Court

SHEFFER v. CAROLINA FORGE COMPANY, L.L.C.2013 OK 48Case Number: 109199Decided: 06/25/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHARLES SHEFFER; JENNIFER SHEFFER; and J.S., a minor by and through his parents and next friends, Charles Sheffer and Jennifer Sheffer, Plaintiffs-Appellants,v.CAROLINA FORGE COMPANY, L.L.C., Defendant-Appellee. ON APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY,STATE OF OKLAHOMA,HONORABLE ROBERT G. HANEY ¶0 Charles Sheffer, Jennifer Sheffer, and their minor son, J.S., were injured when their 18-wheeler tractor trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Plaintiffs sued Carolina Forge on theories of respondeat superior and negligent entrustment. The trial court granted summary judgment to Carolina Forge, finding as a matter of law that Carolina Forge was not liable for its employees' actions under a theory of respondeat superior and did not negligently entrust the rental vehicle to its employees. Upon review of the record, we find reasonable minds could differ on the questions of whether employees of Carolina Forge were in the course and scope of their employment at the time of the accident and whether Carolina Forge negligently entrusted the rental vehicle to its employees. As such, the trial court improperly granted summary judgment to Carolina Forge. TRIAL COURT'S ORDER GRANTING SUMMARY JUDGMENT ISREVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT Ed Hershewe, Joplin, Missouri, Attorney for Plaintiffs-AppellantsTrevor Hughes & J. Christopher Davis, Johnson & Jones P.C., Tulsa, Oklahoma, Attorneys for Plaintiffs-AppellantsRichard L. Yohn, McAlester, Oklahoma, Attorney for Plaintiffs-AppellantsF. Thomas Cordell, Jr., Rochette Wurth, Ryan L. Dean, Frailey, Chaffin, Cordell, Perryman, Sterkel, McCalla & Brown L.L.P., Chickasha, Oklahoma, Attorneys for Defendant-Appellee Carolina Forge Company, L.L.C. GURICH, J. Facts & Procedural History ¶1 On August 24, 2006, William Garris III and David Billups flew from Raleigh, North Carolina, to Joplin, Missouri, on a business trip for their employer, Carolina Forge Company, L.L.C. Garris was the quality manager for Carolina Forge, and Billups was a customer service representative. The trip was scheduled to take place from August 24, 2006, to August 27, 2006, in Joplin, Missouri. Normally, William Casella, the corporate representative and plant manager for Carolina Forge, accompanied Garris to Joplin to call on customer F.A.G. Bearings. But Mr. Casella had another commitment, so Billups accompanied Garris on this particular trip. The primary purpose of the trip was to participate in a golf outing at the invitation of F.A.G. Bearings. ¶2 Carolina Forge paid for Garris and Billups' airline tickets and rental car in advance of the trip.1 Carolina Forge also gave Garris and Billups $600.00 cash to pay for expenses incurred during the trip. Helen Mixon, human resource administrator for Carolina Forge, testified in her deposition that the $600.00 was intended to pay for entertaining customers and for gas in the rental car. Carolina Forge also reimbursed employees for additional out of pocket expenses during business trips, including meals, snacks, and alcoholic beverages. ¶3 Garris and Billups arrived in Joplin on the evening of August 24, 2006, and checked into their hotel. On the morning of August 25, 2006, another employee of Carolina Forge met Garris and Billups at a Bob Evans Restaurant in Joplin, which was adjacent to their hotel, before visiting the F.A.G. Bearings headquarters. Next, Garris and Billups arrived at the customer's facility, where they took a tour and then delivered a presentation to company representatives. ¶4 Following the presentation, Garris and Billups toured another portion of the facility. Garris and Billups then took three F.A.G. Bearings representatives to lunch at the Rib Crib in Joplin. After lunch, Garris and Billups went back to their hotel rooms to change clothes and then met F.A.G. Bearings representatives for golf at the Briarbrook Golf Course just outside Joplin. ¶5 After playing golf, Garris and Billups went back to their hotel, stopping on the way to purchase toiletries and other necessities. Garris and Billups then had dinner at Timberline Steakhouse in Joplin. No F.A.G. Bearings representatives joined Garris and Billups for dinner at the Timberline Steakhouse. After dinner, Garris and Billups went to the Buffalo Run Casino. No representatives from F.A.G. Bearings accompanied Garris and Billups to the casino. The Buffalo Run Casino, located in Miami, Oklahoma, is approximately 30 miles west of the Timberline Steakhouse in Joplin, Missouri. ¶6 According to Garris' affidavit, upon arriving at the casino, Garris and Billups went "separate ways, rarely speaking with one another."2 Garris' affidavit states he "participated in activities associated with the casino, using [his] own money."3 After spending several hours at the casino, Garris and Billups decided to return to their hotel. Upon leaving the casino, Billups drove the rental car, which was rented in the name of the passenger, William Garris. ¶7 Billups and Garris intended to return to Joplin traveling on Interstate Highway 44. However, while leaving Miami, Billups missed the eastbound ramp which would have taken them back to Joplin and instead drove west on Interstate Highway 44 toward Tulsa. Billups turned around in a lane barricade opening.4 Billups' vehicle collided with Plaintiffs' vehicle, an 18-wheeler tractor trailer, resulting in injuries to all three passengers.5 ¶8 Plaintiffs filed suit in the District Court of Ottawa County against Carolina Forge, alleging negligence under the doctrines of respondeat superior and negligent entrustment.6 Carolina Forge moved for summary judgment, which the trial court granted, finding Garris and Billups were not in the course and scope of their employment at the time of the accident and Carolina Forge did not negligently entrust the rental vehicle to its employees. ¶9 Plaintiffs appealed the trial court's Journal Entry granting summary judgment to Carolina Forge, filing a Petition in Error on February 18, 2011. This Court retained the case. We find reasonable minds could differ on the questions of whether employees of Carolina Forge were in the course and scope of their employment at the time of the accident and whether Carolina Forge negligently entrusted the rental vehicle to its employees. Standard of Review ¶10 An order sustaining summary judgment in favor of a litigant presents solely a legal matter. Feightner v. Bank of Okla., N.A., 2003 OK 20, ¶ 2, 65 P.3d 624, 626. Questions of law mandate a de novo standard of review, which affords this Court with plenary, independent, and non-deferential authority to examine the issues presented. Martin v. Aramark Servs., Inc., 2004 OK 38, ¶ 4, 92 P.3d 96, 97. ¶11 When examining an order sustaining summary judgment, this Court must determine whether the record reveals disputed material facts. Cranford v. Bartlett, 2001 OK 47, ¶ 3, 25 P.3d 918, 920. Even if basic facts are undisputed, motions for summary judgment should be denied, if from the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts. Phelps v. Hotel Mgmt Inc., 1996 OK 114, ¶¶ 6-7, 925 P.2d 891, 893. All facts and inferences must be viewed in a light most favorable to the party opposing summary adjudication. Estate of Crowell v. Bd. of Cnty. Comm'rs of Cnty. of Cleveland, 2010 OK 5, ¶ 22, 237 P.3d 134, 142. Negligent Entrustment ¶12 Negligent entrustment of an automobile occurs when the automobile is supplied, directly or through a third person, for the use of another whom the supplier knows, or should know, because of youth, inexperience, or otherwise, is likely to use it in a manner involving unreasonable risk of bodily harm to others, with liability for the harm caused thereby. Green v. Harris, 2003 OK 55, n.5, 70 P.3d 866, 868 n.5. See also Shoemake v. Stich, 1975 OK 55, ¶ 13, 534 P.2d 667, 669-70. This Court has long held that intoxication and the "propensity for becoming intoxicated" can result in liability for the supplier of the automobile if the supplier knows or has reason to know of such intoxication or propensity for becoming intoxicated.7 Nat'l Trailer Convoy, Inc. v. Saul, 1962 OK 181, ¶ 10, 375 P.2d 922, 928-29; Shoemake, 1975 OK 55, ¶ 12, 534 P.2d at 669-70. ¶13 The record indicates Carolina Forge reserved and paid for the rental car for Garris and Billups for this particular business trip to Joplin.8 Ms. Mixon testified the airline tickets and the rental car were purchased by the company before the men left for the trip.9 The record also indicates the purpose of this particular business trip to Joplin was to entertain a customer of Carolina Forge.10 Carolina Forge representatives had participated in this particular golf outing in previous years and expected its representatives to entertain its customers on business trips such as this one.11 Entertainment often included taking customers out for drinks.12 In fact, Carolina Forge encouraged such behavior on all business trips through its limitless reimbursement policy.13 Carolina Forge employees, including Garris, had been reimbursed by Carolina Forge for numerous alcoholic beverages they consumed on prior business trips. Receipts provided by Carolina Forge showed past reimbursements included alcoholic beverages at lunch, in the airport, in the afternoon and evening, at restaurants, at golf outings, and at bars and other establishments such as the "Thirsty Pony."14 Employees of Carolina Forge were permitted to include alcoholic beverage expenses on their expense itemization reports for reimbursement by Carolina Forge regardless of whether the drinks were with customers.15 ¶14 Although Carolina Forge reimbursed employees for all money spent on alcoholic beverages, Carolina Forge maintained no written corporate procedure, guideline, policy, or protocol regarding drinking and driving rental vehicles paid for by Carolina Forge.16 Ms. Mixon was specifically asked: "As a matter of fact, there was never any prohibition on [Garris] eating and drinking and then getting in a rental car and driving, was there?" She answered, "[t]here was no written policy."17 Viewing these facts in a light most favorable to the Plaintiffs, a reasonable person could conclude that Carolina Forge knew or had reason to know that its employees had the propensity to become intoxicated on business trips and that Carolina Forge acted negligently when it rented a car for Garris and Billups without any corporate protocol regarding driving a rental car while intoxicated.18 ¶15 Carolina Forge argues it cannot be liable for negligent entrustment because it did not have possession or control over the rental car at the time of the accident. "The rationale underlying imposition of negligent entrustment liability on suppliers of chattels is that one has a duty not to supply a chattel to another who is likely to misuse it in a manner causing unreasonable risk of physical harm to the entrustee or others." Casebolt v. Cowan, 829 P.2d 352, 360 (Colo. 1992) (emphasis added) (citing Restatement (Second) of Torts § 390). If Carolina Forge, at the time it paid for the rental car for its employees, knew or should have known its employees were likely to drive the rental car while intoxicated, Carolina Forge had a duty to take reasonable actions to prevent such risks. Control at the time the automobile is supplied--the initial moment of entrustment--determines a supplier's negligence. Id. ¶16 In the same vein, Carolina Forge argues it did not entrust the vehicle to Billups because the vehicle was rented in Garris' name and the company didn't know Billups was going to drive the car. However, Carolina Forge maintained no policy on who could drive the rental car.19 In fact, Mr. Casella testified that had Garris allowed Billups to drive, that would have been acceptable to the company.20 ¶17 Finally, Carolina Forge argues it cannot be held liable for negligent entrustment unless the Plaintiffs can first prove Garris and Billups were acting within the course and scope of their employment at the time of the accident. Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties. Casebolt, 829 P.2d at 360 ("Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle."). As such, when an employer provides an employee with a vehicle, whether the negligent act was done during the course and scope of an employee's employment is not relevant to the negligent entrustment analysis.21 The evidence in the record does not support a determination as a matter of law that Carolina Forge did not negligently entrust the rental car to Garris and Billups. The issue is a question of fact for the jury. Summary judgment was improper. Respondeat Superior ¶18 "To hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority." Baker v. Saint Francis Hosp., 2005 OK 36, ¶ 10, 126 P.3d 602, 605. "Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing that which is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business." Tuffy's Inc. v. City of Okla. City, 2009 OK 4, ¶ 7, 212 P.3d 1158, 1163. More specifically, in determining whether an employee was in the course and scope of employment at the time of an automobile accident, this Court has looked to whether, taking into consideration the purpose of the mission and the distance traveled, it could be said that the employee was stepping aside in some marked or unusual manner for some purpose wholly disconnected with his employment.22 Retail Merchants Ass'n v. Peterman, 1940 OK 49, ¶ 11, 99 P.2d 130, 132. ¶19 In some cases, the deviation may be so marked or slight that, as a matter of law, only one reasonable conclusion can be drawn from the facts, and the issue of whether an employee was within the scope of employment may be decided by the court. Id.23 However, when the degree and extent of the deviation is so uncertain that reasonable contrary inferences may be drawn, the issue must be sent to the jury. Id. See also Baker, 2005 OK 36, ¶ 16, 126 P.3d at 607. This Court has long held that the question of whether an employee has acted within the course and scope of employment at any given time is a question for the trier of fact. Baker, 2005 OK 36, ¶ 16, 126 P.3d at 606 (citing Chicago, R. I. & P. RY. Co., 1913 OK 7, ¶ 11, 129 P. 834, 838). ¶20 In Oil Daily Inc. v. Faulkner, 282 F.2d 14 (10th Cir. 1960), a case decided under Oklahoma law by the Tenth Circuit, Oil Daily's employee was an advertising manager in 19 southwestern states. Id. at 15. His duties required him to travel throughout the southwest soliciting business for his employer and acting as a public relations representative. Id. He was free to arrange his trips and to travel by any means he saw fit. Id. Oil Daily paid all expenses, and he was allowed mileage for the use of his personal automobile. Id. On one particular trip, he left his headquarters in Dallas, in his own automobile, for a business trip to Kansas City, via Tulsa. Id. He transacted company business in Tulsa and proceeded on to Kansas City by plane. Id. He returned to Tulsa in the afternoon and left that evening in his automobile for the return trip to Dallas. Id. He arrived in Durant, Oklahoma, late in the evening and stopped at a roadside café and private club, where he remained for some time. Id. He then proceeded to Denison, Texas, where he stopped for a meal. Id. Too tired to continue, he returned to Durant, which was approximately 21 miles from Denison, to spend the remainder of the night with a friend. Id. He was unable to locate the friend, had difficulty with his automobile, and decided to sleep in his car until morning. Id. He then resumed his trip to Dallas; however, just prior to reaching Denison, he fell asleep and his automobile collided with the plaintiff's vehicle. Id. ¶21 The Eastern District of Oklahoma found the employer, Oil Daily, liable under the respondeat superior doctrine. Id. at 14. Oil Daily appealed, and the Tenth Circuit affirmed, finding that whether, under Oklahoma law, the employee's actions constituted a departure wholly disconnected from employment relieving the employer from liability for negligent operation of the automobile by its advertising manager was a question of fact for the district court. Id. The Tenth Circuit could not say as a matter of law "that such trip was a departure wholly disconnected from the company's business which would relieve it from its liability as an employer," relying in part on the fact that Oil Daily gave its employee discretion to "exercise his own judgment in traveling, in time spent on the road, in selecting hotels or other living quarters, and when he should return to his headquarter." Id. at 16. ¶22 In the present case, the record indicates the Buffalo Run Casino was about 30 miles from Garris and Billups' hotel.24 The men had unlimited use of the rental car, and Carolina Forge put no limitations on where Garris and Billups could drive the rental car during the business trip to Joplin. When asked if Carolina Forge gave Garris and Billups instructions not to leave Joplin, Mr. Casella answered, "No sir. We did not."25 When asked if there were any company limitations on where they could go on this trip, Mr. Casella replied, "No. There was not--that I recall anyway."26 When asked whether the men would have been reimbursed had they purchased gasoline in Oklahoma, Mr. Casella answered "Probably."27 ¶23 The record also indicates the business trip for Carolina Forge was the only reason the men were in Joplin.28 Mr. Casella testified that the trip to Joplin "was a business trip" to entertain customers and to participate in the golf outing.29 Mr. Casella testified he believed there were personal portions of the trip and the trip to the casino was a personal trip.30 However, the record indicates that while there may have been personal portions of the business trip, Carolina Forge routinely reimbursed employees for expenditures during personal portions of business trips. When asked if Carolina Forge paid for employees' expenses for meals and drinks when the employees were on personal time, Mr. Casella answered, "Okay. Now, I understand. Yes, we would pay for their meals and drinks. We would pay for that."31 ¶24 In fact, Carolina Forge reimbursed employees for all expenses incurred on business trips. Both of Carolina Forge's corporate representatives testified they could not ever recall refusing to reimburse an employee for an expense documented with receipts and claimed on the employee's expense report.32 At the time of the accident Carolina Forge had no written corporate procedure, guideline, policy, or protocol as to what expenses were and were not paid for or reimbursed by Carolina Forge.33 According to Mr. Casella, if the men had driven to Oklahoma to purchase a meal that probably would have been okay with the company, and the company would have reimbursed it.34 Mr. Casella also testified Carolina Forge would have paid for Garris and Billups' meals, including alcohol, regardless of where they ate and regardless of whether they were entertaining customers.35 ¶25 As in Oil Daily, Carolina Forge gave its employees unrestricted discretion on business trips to decide how to spend their time. Carolina Forge provided blanket reimbursements for food, alcohol, and gas on past business trips regardless of whether employees were entertaining customers or were on personal time. A reasonable person could find these facts relevant in determining whether Garris and Billups' trip to the casino was authorized by Carolina Forge and whether the trip to the casino was included within the course and scope of their employment with Carolina Forge. The record does not support a determination as a matter of law that the men were not in the course and scope of their employment when the accident occurred. The issue is a question of fact for the jury. Summary judgment was improper.36 Plaintiffs' Request for Additional Discovery ¶26 The record indicates Plaintiffs requested additional discovery from Carolina Forge after the depositions of Mr. Casella and Ms. Nixon. At the time Plaintiffs' response to summary judgment was filed, Carolina Forge had not yet furnished the discovery responses. In their brief, Plaintiffs stated to the trial court: "Plaintiffs therefore respectfully request that Carolina Forge's motion be denied at this time so that Plaintiffs have the opportunity to at least obtain the discovery they have recently requested to show the existence of disputed material facts regarding both the scope of Defendants' agency, as well as the negligent entrustment and supervision claims at issue."37 ¶27 Plaintiffs learned during the deposition of Defendant's corporate representatives that Garris made prior trips to Joplin, Missouri, for the same golf outing as he and Billups attended during this particular trip. Based on this newly acquired information, they sent a Request for Production to counsel for Carolina Forge requesting "business expense reports and receipts for William Garris, III for all trips he made to Joplin, Missouri prior to the trip he was on at the time of the accident."38 Plaintiffs also learned Mr. Casella made the trip to Joplin with Garris in previous years, and as such, requested the business expense reports and receipts for Mr. Casella for all trips he made to Joplin. Plaintiffs argue in their brief to this Court that the reports and receipts for Garris and Casella for prior trips to Joplin for a similar golf outing demonstrate what constituted acceptable employee behavior on business trips and is relevant for a jury in determining whether the trip to the casino was in the course and scope of Garris and Billups' employment. ¶28 Additionally, Plaintiffs argue the trial court should have allowed additional discovery before granting summary judgment because neither Garris nor a representative of Billups' estate had testified at the time Carolina Forge moved for summary judgment. Plaintiffs argue these depositions are relevant to determine what activities Garris and Billups believed were or were not authorized by Carolina Forge during the business trip to Joplin. ¶29 The trial court did not address Plaintiffs' request for more time to obtain discovery and presumably denied any such relief when it granted summary judgment to Carolina Forge. Because the trial court erred in granting summary judgment on both the respondeat superior and negligent entrustment claims, we need not determine whether the trial court abused its discretion in not allowing the Plaintiffs more time to obtain additional discovery.39 But on remand Plaintiffs should be allowed to conduct additional discovery as they have shown such discovery is relevant to both the respondeat superior and negligent entrustment claims. Conclusion ¶30 Reasonable minds could differ on whether the employees of Carolina Forge were in the course and scope of their employment at the time of the accident and whether Carolina Forge negligently entrusted the rental vehicle to its employees. Summary judgment was improper. TRIAL COURT'S ORDER GRANTING SUMMARY JUDGMENT ISREVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶31 Colbert, C.J., Reif, V.C.J., Watt, Winchester, Edmondson, Taylor, Combs and Gurich, JJ., concur; ¶32 Kauger, J., concurs in parts, dissents in part; ¶33 Taylor, J., concurring When an employer sends an employee on a business trip with cash, credit cards and rent car along with a company history of encouragement and payment for alcohol consumption, this personal injury accident is a foreseeable result and should be decided by a fact-finder. FOOTNOTES 1 Carolina Forge also reserved hotel rooms for the men in advance of the trip. The record indicates the men paid for the hotel and then were reimbursed by Carolina Forge upon return. Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 64. 2 Defendant Carolina Forge Company L.L.C.'s Motion for Summary Judgment and Brief in Support, Ex. A. 3 Id. Mr. Casella testified in his deposition that he could not recall whether Garris had ever indicated he had been drinking while at the casino. Garris' statement to Carolina Forge's workers' compensation carrier provides: Q: Okay, Ah, all right. So, you guys left the. . I'm sorry, you said between 12:15 to 12:30?R: Yeah, yeah.Q: Okay. At that point in time, when you hooked up at that point in time, did both of you guys still have a drink with you?R: Hmm, no, no. When we got ready to leave to go to the car.Q: When you get ready to leave to go to the car, who's driving?R: The last thing I remember is David telling me he was okay to drive and I agreed and that's the last thing I remember.. . . Q: Okay. All right. Let me back up here a little bit, okay? Would the money that you were spending in the casino to gamble and purchase whatever beers you were drinking, you . . you paid for that credit card or cash?R: That was cash out of my pocket. Defendant Carolina Forge Company's Reply to Plaintiffs' Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 21-22. Ms. Mixon's deposition also indicates a toxicology report was done on Billups after the wreck, but the toxicology report is not included in the record. Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 65-66. Ms. Mixon's deposition also indicates Garris and Billups had dinner and drinks at the Timberline Steakhouse and then drove to the casino. Id. Ex. B at 53-54. 4 This portion of Interstate Highway 44 is the Will Rogers Turnpike, which is a toll road and four-lane limited access highway extending from Tulsa to the Oklahoma-Missouri state line. Defendant Carolina Forge Company L.L.C.'s Motion for Summary Judgment and Brief in Support, Ex. I. 5The collision also caused injuries to Garris and resulted in Billups' death. 6 Plaintiffs also asserted a claim for negligent hiring and training, which was disposed of in the trial judge's order granting summary judgment. However, they did not appeal the negligent hiring claim. 7 OUJI No. 10.16 states: "An owner [or provider] of a vehicle [or other dangerous instrumentality] has a duty to use ordinary care to avoid lending it to another person whom he knows [or reasonably should know] is [intoxicated/careless/reckless/incompetent to drive]." 8 Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 33. 9 Id. Ex. B at 35-36. 10 Id. Ex. A at 16; Ex. B at 24. 11 Id. Ex. B at 47. 12 The following exchange took place during Ms. Mixon's deposition: Q: Thank you. A customer service representative, are they expected to entertain clients?A: Yes. When they would go on these trips, yes.Q: What type of entertainment is allowed?A: We would expect dinner: for them to take them out to dinner. I mean, that's what we would expect them to do. I don't know of anything other than that they would be needing. Q: Would that include drinks at dinner?A: Yes.Q: Would a customer service representative and quality manager be expected to take a customer out or customer representatives out for cocktails, for example?A: It's possible.Q: Have you reimbursed your customer representative, Mr. [Garris], and/or Mr. Billups, your quality manager, for alcoholic beverages that they consumed and customers consumed?A: Yes, we have. Id. Ex. B at 47-48. 13 Id. Ex. A at 22; Ex. B at 48-49. 14 Id. Ex. B at 76 ("Q: On the other side, Labatt at the Thirsty Pony in Sandusky, Ohio[?]"). Approximately nine pages of Ms. Mixon's deposition testimony included questions regarding past expense receipts that were reimbursed by Carolina Forge. One exchange went as follows: Q: Then there's an [sic] Max & Ernst Concourse C at the Hopkins International Airport in Cleveland. There was a charge for a Bud Light that was reimbursed; is that correct?A: It was on the expense so it would have been reimbursed. Q: Then there's a Fox Sports Bar, Detroit Metro, a large Bud draft and side-shot--no side-shot, I guess--and the charge was, for the draft, 5 dollars and 29 cents. With tax, it was 5 dollars and 61 cents. A: (no response)Q: Is that correct?A: I see it, yes.Q: Then it appears in the middle there's a Carolina Varsity. It says one premium 22 ounce. Do you know if that's alcohol?A: I do not know.Q: Then under that, Bates Stamp 124, it's a Webster's Inn, and it shows that there was--the two drinks at the top, do you know if those are alcoholic beverages?A: I don't know.Q: Three drinks at the top.A: I do not know.Q: Bates Stamp 125, again, it's a place called Fox something in Detroit. It's a large Bud Light, Bud draft, for 5 dollars and 29 cents.Ms. Wurth: Object to form.Q: (By Mr. Hershewe) Do you see that?A: I see it. Q: That would have been paid for?A: Yes. It was turned in with the expense, yes. Id. Ex. B at 80-81. 15 Id. Ex. A at 42. 16 Id. Ex. B at 33-35; Defendant Carolina Forge Company's Reply to Plaintiffs' Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 29-30. 17 Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 54. 18 This Court has determined that evidence of the propensity for becoming intoxicated is sufficient to submit a negligent entrustment question to the jury. Nat'l Trailer Convoy, 1962 OK 181, ¶ 10, 375 P.2d at 928. 19 Garris' statement to Carolina Forge's workers' compensation carrier indicates he allowed Billups to drive upon leaving the casino. Defendant Carolina Forge Company's Reply to Plaintiffs' Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 21-22. 20 Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 34. 21 See Blagg v. Line, 09-CV-0703-CVE-FHM, 2012 WL 263034, at *4 (N.D.Okla. Jan. 30, 2012) (finding plaintiff was not required to prove an employment relationship between owner and person entrusted with vehicle because employment relationship is not an element of negligent entrustment). See also Am. Jur. Negligence § 319. 22 OUJI 6.7 states: An employee is acting within the scope of [his] employment if [he] is engaged in the work which has been assigned to [him] by [his] employer, or is doing that which is proper, usual and necessary to accomplish the work assigned to [him] by [his] employer, or is doing that which is customary within the particular trade or business in which the employee is engaged. Oklahoma Uniform Jury Instruction 6.7-Scope of Employment. OUJI 6.12 goes onto state: An [employee] is acting outside the scope of [his] [employment] when [he] substantially departs from [his] [employer's] business by doing an act intended to accomplish an independent purpose of [his] own or for some other purpose which is unrelated to the business of [his] [employer] and not reasonably included within the scope of [his] express or implied [employment]. Such departure may be of short duration, but during such time the [employee] is not acting within the scope of [his] [employment]. Oklahoma Uniform Jury Instruction 6.12-Scope of Authority or Employment-Departure. 23 See also Carswell v. Okla. State University, 1999 OK 102, ¶ 19, 995 P.2d 1118, 1123 ("Except in cases where only one reasonable conclusion can be drawn, the question of whether an employee has acted within the scope of employment at any given time is a question for the trier of fact."). 24 Defendant Carolina Forge Company, L.L.C.'s Motion for Summary Judgment and Brief in Support at 8. 25 Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 15. 26 Id. Ex. A at 20. 27 Id. 28 Id. Ex. A at 15. 29 Id. 30 Id. Ex. A at 52. 31 Id. Ex. A at 18-19. 32 Id. Ex. A at 24; Ex. B at 27. 33 Id. Ex. A at 22. 34 Id. Ex. A at 21. 35 Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 42. 36 We note that Carolina Forge paid a settlement to the Estate of David Billups under its workers' compensation policy. At the hearing on summary judgment Plaintiffs' counsel argued: Mr. Hershewe: Okay. Now, I want to address the issues on-- The Court: Employer/employee. Mr. Hershewe: Employer/employee. The biggest issue I find in there is, your Honor, is that there was a work[ers'] comp claim that was filed and was settled by Carolina Forge, and they now claim a subrogation interest in that case. And if there was not an employer/employee relationship and a settlement in that case, they are not entitled to any subrogation. Any they put us on--on-- The Court: Put us on what? Mr. Hershewe: They put us on notice that they want to be repaid for the work[ers'] comp benefits that they paid in this case. The Court: Well, how are they going to get repaid for the benefits they paid in this case as against your clients? Mr. Hershewe: That's evidence because we've got a claim against Buffalo Run, your Honor. Transcript of Motion for Summary Judgment Proceedings at 10 (Jan. 7, 2011). Under North Carolina law, "for a claimant to recover workers' compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment." Pickrell v. Motor Convoy, Inc., 368 S.E.2d 582 (N.C. 1988). 37 See Plaintiffs' Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support at 15. 38 Id. at 14. 39 A trial court's refusal to allow additional discovery is reviewed for abuse of discretion. Scott v. Peterson, 2005 OK 84, ¶ 12, 126 P.3d 1232, 1236.

0d2e5ccb-5b80-4081-84b1-09e97ccd7781

Starkey v. Oklahoma Dept. of Corrections

oklahoma

Oklahoma Supreme Court

STARKEY v. OKLAHOMA DEPARTMENT OF CORRECTIONS2013 OK 43Case Number: 109556Decided: 06/25/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JAMES M. STARKEY, SR., Plaintiff/Appellee,v.THE OKLAHOMA DEPARTMENT OF CORRECTIONS AND JUSTIN JONES AS DIRECTOR, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTYHONORABLE BILL GRAVESDISTRICT JUDGE ¶0 James M. Starkey, Sr., is a registered sex offender whose registration period was retroactively increased by the Oklahoma Department of Corrections. He petitioned the trial court for a reduction of his level assignment. Starkey later filed a motion for summary judgment alleging he should never have been required to register under the Oklahoma Sex Offenders Registration Act. The trial court found the Act was not meant to be applied retroactively and granted summary judgment in favor of Starkey. The Oklahoma Department of Corrections and Justin Jones, as director, appealed. AFFIRMED AS MODIFIED John M. Dunn, Tulsa, Oklahoma, for Plaintiff/AppelleeCornelius Leader, and John David Hadden, Asst. Attys. Gen., Oklahoma City, Oklahoma, for Defendants/Appellants COMBS, J. ¶1 This matter was assigned to this office on February 6, 2013. According to the Record, Plaintiff/Appellee James M. Starkey, Sr., (hereinafter, "Starkey") pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas. The act occurred on January 15, 1997, and the age of the victim(s) was 15 years old.1 Under Texas law the act amounted to a second degree felony.2 The Oklahoma Department of Corrections and Justin Jones as Director (hereinafter, "Department") point out in Defendants Oklahoma Department of Corrections And Justin Jones Combined Response To Plaintiff's Motion For Summary Judgment And Motion For Summary Judgment (hereinafter, "response and motion for summary judgment") the equivalent crime of sexual assault under Oklahoma law is found in § 1123 of Title 21 of the Oklahoma Statutes; Lewd or Indecent Proposals or Acts to child Under 16. The deferred adjudication provided as follows: ADJUDICATION DEFERRED PLACED ON COMMUNITYSUPERVISION FOR TEN (10) YEARS, $4,000.00 FINE, COURTCOSTS, 320 CSR HOURS, 60 DAYS IN THE CALHOUN COJAIL, RESTITUTION, DEFENDANT WAIVES HIS RIGHT TO APPEAL, SEX OFFENDER RULES. In paragraph (27) of the document entitled "Additional Conditions of Community Supervision" he was required to register under Article 6252-13c.1 of the Texas Sex Offender Registration Program.3 ¶2 The May 10, 2011, trial court Order found Starkey has resided in Oklahoma since 1998. The record, however, is vague on exactly when Starkey entered Oklahoma after his Texas deferred adjudication and therefore does not show the exact date upon which he was first subject to the Sex Offender Registration Act (hereafter, "SORA"), 57 O.S. § 581 et seq. Two versions of § 582 of SORA were in effect during 1998. The 1997 version was in effect prior to November 1, 1998, and the 1998 version was in effect on November 1, 1998.4 Both, however, provided as follows: The provisions of the Sex Offenders Registration Act, Sections 581 et seq. of this title, shall apply to any person who . . . enters this state on or after September 1, 1993, and who has received a deferred judgment for a crime or attempted crime which, if committed or attempted in this state, would be a crime or an attempt to commit a crime provided for in Section . . . [list of crimes omitted] 1123 of Title 21 of the Oklahoma Statutes. Title 57 O.S. Supp. 1997 and 1998, § 582. ¶3 SORA also required a person convicted in another jurisdiction to register with the Department of Corrections and local law enforcement. Section 583 provided as follows: B. Any person who has been convicted of an offense on or after November 1, 1989, in another jurisdiction, which offense if committed or attempted in this state, would have been punishable as one or more of the offenses listed in Section 582 of this title and who enters and remains in this state shall register as follows: Title 57 O.S. Supp. 1997, § 583 (in effect throughout 1998). The trial court found at the time Starkey received his "deferred sentence" he was only required to register in Oklahoma for 10 years. The Department's response to the motion for summary judgment, however, asserted Starkey was initially required to register for 10 years following completion of his ten-year probation, thus requiring a total of 20 years registration. ¶4 Effective November 1, 2007, SORA was amended to require the Department of Corrections or a court to assign a numeric risk level to a person "who will be subject to the provisions of the Sex Offenders Registration Act." Title 57 O.S. Supp. 2007, §§ 582.1 - 582.2. The Department created a "risk assessment review committee" to develop or select a sex offender screening tool and to monitor its use.5 The required screening tool was to use an objective point system under which an offender would be assigned a designated number of points for various factors with the offense being the basis for the minimum numeric risk level. The risk levels were as follows: 1. Level one (low): a designated range of points on the sex offender screening tool indicating that the person poses a low danger to the community and will not likely engage in criminal sexual conduct; 2. Level two (moderate): a designated range of points on the sex offender screening tool indicating that the person poses a moderate danger to the community and may continue to engage in criminal sexual conduct; and 3. Level three (high): a designated range of points on the sex offender screening tool indicating that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct. Title 57 O.S. Supp. 2007, § 582.5. ¶5 The Legislature passed an emergency measure 6 months later to require a risk assessment be made for offenders who enter the state.6 Section 583 was also amended to set the registration period for the 3 levels. It provided "a person [who] has been convicted or received probation within the State of Oklahoma . . . shall be required to register" for 15 years if the person is a level 1 offender, 25 years for a level 2 offender, and for life if a person is a level 3 offender or classified as a habitual or aggravated sex offender.7 ¶6 Section 582.5 (D) of SORA further allowed the Department of Corrections, the risk assessment review committee or a court to override a risk level if the risk level assessed was not an accurate prediction of the risk the offender poses on the community.8 ¶7 Many of these provisions were again amended effective November 1, 2009.9 The committee at this time was renamed the "sex offender level assignment committee" and given the duty to determine, based on federal law, the level assignment of offenders subject to registration. The screening tool was replaced with guidelines which are based on the 3 levels listed above without any designated range of points. The offense was amended to serve as the sole basis for the level assigned to the offender. The amendments further provide, the committee, the Department of Corrections or a court may only increase the level assignment and not decrease it.10 This last amendment, with few exceptions, effectively extinguished any chance to have a level assignment reduced from that, as in Starkey's case, determined exclusively by the sex offender level assignment committee. ¶8 Starkey's ten-year registration period was set to expire in 2008. Just prior to this period ending, the Department assigned Starkey a level 3 life-time registration classification with no opportunity for a hearing. Starkey filed his Petition in August 2009 pursuant to 57 O.S. Supp. 2008, § 582.5 (D) of SORA to have a court override his level assignment. Starkey's filing occurred just months before the effective date of the 2009 amendment extinguishing his right to have his level assignment reduced. Starkey requested the court reduce his level assignment to level 1, find he had been registered for the required period of time and order him discharged from any further obligations. ¶9 Starkey filed his Plaintiff's Motion For Summary Judgment on December 10, 2010, and Plaintiff's Supplemental Brief on February 25, 2011. He asserted he should be granted summary judgment because at the time he was sentenced he was not even required to register under Oklahoma law. Starkey asserts § 583 only required a person "convicted" of an offense in another jurisdiction to register. He argues because he received a deferred adjudication he did not have a conviction.11 In his motion he alleged his procedural due process rights were violated because the level assignment was made without a means to challenge the classification. He requested the court find he was not required to register under SORA and order the Department to remove him from the State Sex Offender List. ¶10 Starkey's argument extensively relies upon an unpublished Oklahoma Court of Criminal Appeals opinion, State of Oklahoma v. Timothy Lynn Smith, S-2009-944, filed October 28, 2010. His supplemental brief also cites Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, 257 P.3d 416, a published Oklahoma Court of Civil Appeals opinion, which found State v. Timothy Lynn Smith persuasive. ¶11 In State v. Timothy Lynn Smith the trial court held Smith was not required to register under SORA. Smith entered a plea in August 1999 and received a deferred sentence. At that time, SORA only required persons who were convicted or received a suspended sentence to register.12 Subsequent amendments to SORA required certain individuals receiving a deferred sentence to register.13 The trial court found the ex post facto clause would be violated if these amendments were applied retroactively to require Smith to register. On appeal, the Oklahoma Court of Criminal Appeals determined before a law could violate the ex post facto clause it would have to be applied retroactively.14 The court further found the subsequent amendments were substantive and substantive laws are to be applied prospectively unless the legislature clearly expresses its intent to apply them retroactively.15 It determined there was no clear expression to give these amendments a retroactive effect. The Court of Criminal Appeals held the subsequent amendments did not apply to Smith and therefore he need not register. It also found it did not need to determine whether the "Ex Post Facto Clause" was violated because the law was not intended to be applied retroactively. ¶12 Reimers v. State was decided nine months after State v. Timothy Lynn Smith and found that opinion to be "erudite and persuasive."16 The primary issue in Reimers v. State was whether a sex offender's registration period could be retroactively increased after he was sentenced and would such a retroactive increase violate the ex post facto clause. The plaintiff challenged the retroactive increase of his registration period based upon subsequent amendments to SORA. These amendments were made after his plea and after he completed his sentence. Reimers was originally only required to register for two years following discharge from the Department of Corrections sex offender treatment program. After the amendments, he was given a sex offender level assignment and required to register for 15 years following the completion of his sentence.17 The Court of Civil Appeals found the amendments were substantive because they would increase the length of Reimers' registration period beyond that required of him when he was sentenced.18 The appellate court determined substantive changes to the law could not be applied retroactively without express legislative intent.19 The court did not find a clear legislative intent to apply the laws retroactively and therefore held the amendments did not apply to Reimers. The violation of the ex post facto clause was not addressed because the law would have to have been applied retroactively first before there could be an ex post facto violation. ¶13 Starkey argues based upon State v. Timothy Lynn Smith and Reimers v. State the law requires a person to register based upon the law at the time of sentencing. He contends when he was sentenced the law did not require a person with a deferred adjudication to register and therefore he should be relieved of any further obligation to register. The Department contends Starkey's level assignment is based on "only one criteria - the crime for which one was convicted" and he is not entitled to a reduction of his level. Their argument is essentially no other criteria are necessary in the level assignment and therefore there is no basis for a court to make a level assignment modification. ¶14 The Department additionally asserts the assignment of a level to Starkey without a hearing did not violate procedural due process. They cite the United States Supreme Court decision in Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003). In Connecticut the United States Supreme Court held the Federal Due Process Clause did not entitle sex offenders to a hearing to determine whether they were currently dangerous before their inclusion in a publicly disseminated sex offender registry. Connecticut 538 U.S. at 7-8. Inclusion in the registry was based on the conviction alone and not on a determination as to the offender's dangerousness. Id. at 7. The Court found a person who asserts a right to a hearing under the Federal Due Process Clause must show the facts they seek to establish in that hearing are relevant under the statutory scheme. Id. at 8. Because the fact the sex offender seeks to prove-he is not currently dangerous-is of no consequence under the law, no hearing was necessary. Id. at 7. Further, the court determined procedural protections had already been received at the time of his trial. Id. ¶15 The Department next asserts a retroactive application of SORA does not violate the prohibition on ex post facto laws found in the Oklahoma and Federal Constitutions. They rely on Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the United States Supreme Court seminal case concerning ex post facto challenges to retroactive sex offender registration laws. In Smith, the United States Supreme Court utilized various factors to determine whether the Alaska Sex Offender Registration Act (ASORA) violated the Ex Post Facto Clause of Article 1, § 10 of the United States Constitution. First, the Supreme Court determined whether or not the legislature intended ASORA to be punishment. It found the intent was to create a "civil, nonpunitive regime."20 Second, the court reviewed the effects of ASORA's provisions to determine, regardless of intent, whether the effects were so punitive to negate that intent. The Court determined the effects did not negate its civil regulatory scheme and therefore did not violate the Ex Post Facto Clause.21 ¶16 On May 10, 2011, the trial court entered its Order granting summary judgment in favor of Starkey. The trial court found at the time Starkey received his deferred sentence SORA's registration requirement was for 10 years. The trial court determined Starkey should have been removed from the sex offender registry sometime in 2008. The trial court noted the Oklahoma Court of Civil Appeals in Freeman v. Henry, 2010 OK CIV APP 132, 245 P.3d 1258, found the retroactive application of SORA to an offender convicted prior to its enactment was acceptable. The trial court, however, did not adopt the logic in Freeman v. Henry. The trial court ruled SORA was not to be retroactively applied to Starkey, specifically finding the applicable law was the version in existence at the time Starkey pled nolo contendere to the charge of sexual assault of a minor child on October 12, 1998, in Calhoun County, Texas. STANDARD OF REVIEW ¶17 An appeal on summary judgment comes to this Court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. On appeal, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. The issues involve a question of law which we review de novo. In re Estate of Bell-Levine, 2012 OK 112, ¶5, 293 P.3d 964, 966. ANAYLSIS ¶18 The Department asserts on appeal it is obvious the legislature meant the applicable amendments to SORA be applied retroactively. It requests this Court issue a published opinion establishing binding precedent that SORA is to be given retroactive effect and such an application does not violate due process or the prohibition on ex post facto laws. Starkey requests this Court find SORA should be interpreted and applied prospectively only. He also asks, while he believes it is not required, this Court additionally find the retroactive application of SORA's provisions violates the ex post facto clause. I. Retroactivity of SORA Provisions ¶19 First, we must determine whether or not the level assignment system created in 2007, as amended, was intended to be applied retroactively. If we find it was intended to be applied retroactively, then we must determine whether its retroactive application violates the ex post facto clause. Second, if we find the level assignment system was not intended to be applied retroactively, we must then determine Starkey's correct period of registration. The trial court found the law at the time Starkey was sentenced only required him to register for 10 years. The Department asserts Starkey was initially required to register for 10 years "following completion of his probation." This would be 10 years following the 10 years of community supervision which was a condition of Starkey's deferred adjudication. ¶20 SORA was created in 1989 and has been amended in almost every year since. Amendments enacted which increased the duties and obligations of a sex offender, including increasing the registration period, are substantive amendments and not merely procedural remedial amendments.22 The Department disagrees with the logic in Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, 257 P.3d 416 and State of Oklahoma v. Timothy Lynn Smith, S-2009-944, filed October 28, 2010, which determined a "clear expression" from the legislature is necessary before a substantive change may be made retroactive. They assert the legislative intent need only be "necessarily implied" and no "clear expression" is required, relying on Wickham v. Gulf Oil Corp. 1981 OK 8, 623 P.2d 613 and Good v. Keel, 1911 OK 264, 116 P. 777. ¶21 The Wickham Court found as a rule of statutory construction, statutes are generally presumed to operate prospectively. Wickham 1981 OK 8 at ¶13. However, "this presumption does not defy rebuttal if the purposes and intention of the Legislature to give a statute a retrospective effect are expressly declared or are necessarily implied from the language used." Id. In its analysis the Court reviewed other jurisdictions which found as follows: [w]ords alone, however, are not the only decisive factor in resolving the issue since "(i)t is not necessary that a statute expressly state that it is intended to operate retrospectively if such an intention can be obtained by viewing its purpose and the method of its enactment." The presumption against retroactive application has been subordinated "to the transcendent canon of statutory construction that the design of the Legislature be given effect." Id. (internal citations omitted). ¶22 Wickham was summarized four years later in the case of In re Bomgardner, 1985 OK 59, 711 P.2d 92. In Bomgardner, this Court stated: In short, where the legislature has not explicitly set forth what it intended, the presumption against retroactivity should not be followed in complete disregard of factors that may give a clue to the legislative intent. Only if we were to fail in detecting legislative intent after looking at all the available indicia, would the presumption of prospectivity operate. In re Bomgardner, 1985 OK 59 at ¶10. ¶23 Wickham ultimately found "the legislative intent was neither expressly declared nor necessarily ascertainable, and in the absence of a clear expression by the Legislature that the . . . amendment was to operate retrospectively," the presumption against retrospective application takes great weight. Wickham, 1981 OK 8 at ¶14. ¶24 The seminal Oklahoma case on the "necessarily implied" language cited by the Department, is the 1911 case of Good v. Keel, 1911 OK 264, 116 P. 777. In Good, this Court held "[i]t is a rule of statutory construction that all statutes are to be construed as having a prospective operation unless the purposes and intention of the Legislature to give them a retrospective effect is expressly declared, or is necessarily implied from the language used." Good 1911 OK 264 at ¶4. In a majority of opinions since Good where this Court has looked at the "necessarily implied" language we have found no retroactive application was intended.23 ¶25 This same Court found two months prior to Good the following: [l]aws are generally construed as applicable to future conditions, and are not to be allowed a retroactive effect unless such intention upon the part of the Legislature is so clearly expressed that no other construction can be fairly given. In Lawrence v. City of Louisville, 96 Ky. 595, 29 S.W. 450, 27 L. R. A. 560, 49 Am. St. Rep. 309, the syllabus says: 'While retrospective legislation may, in some cases, be upheld, the words of a statute ought not to have a retrospective operation unless they are so clear and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied.' Adair v. McFarlin, 1911 OK 129, ¶5, 115 P. 787, 788. ¶26 Two years later, this Court quoted Clapp v. Otoe County, Neb., 104 F. 473, 475 (8th Cir. 1900) as persuasive language in determining a statute was not meant to be applied retroactively: The function of the Legislature is to prescribe rules to operate upon the actions and rights of citizens in the future. While, in the absence of a constitutional inhibition, the Legislature may give to some of its acts a retrospective operation, the intention to do so must be clearly expressed, or necessarily implied from what is expressed; Casey v. Bingham, 1913 OK 321, ¶4, 132 P. 663, 665. ¶27 Casey also found "[i]t is a rule of construction that statutes will not be given a retroactive effect if any other reasonable construction is possible. (citing) Good v. Keel, 29 Okla. 325, 116 P. 777." Casey at ¶4. Additionally, "[i]n every case of doubt the doubt must be resolved against the retrospective effect." Good 1911 OK 264 at ¶4 (Emphasis added.) (See also Barnhill v. Multiple Injury Trust Fund, 2001 OK 114, 37 P.3d 890; Crawford v. Guardian Life Ins. Co., 1997 OK 10, ¶8, 954 P.2d 1235, 1238; and Phillips v. H. A. Marr Grocery Company, 1956 OK 104, 295 P.2d 765). II. Applicability of the Level Assignment Amendments to Starkey ¶28 In 2007, HB 1760 created a system to assign sex offenders a level of 1 to 3 based upon their risk.24 The law became effective on November 1, 2007. Starkey was informed in 2008 by the Department of Corrections, without any hearing or opportunity to be heard, that he was assigned a level of 3 and his registration period would be increased to life. The issue to be determined is whether the Legislature intended the new level system to be applied retroactively to persons who were already subject to the provisions of SORA. We find it was not intended to apply retroactively but is to be applied prospectively. We also find the Department, regardless of the legislative intent, has applied the level assignments retroactively and, pursuant to our analysis infra, such application violates the ex post facto clause of the Oklahoma Constitution.25 ¶29 The 2007 amendments used specific language in sections 582.1 and 582.2 of title 57 of the Oklahoma Statutes which indicate a prospective intent. This language is essentially the same today. These sections apply the level assignments to a person "who will be subject to the provisions of the Sex Offenders Registration Act." The language is as follows: Before a person, who will be subject to the provisions of the Sex Offenders Registration Act, is due to be released from a correctional institution, the Department of Corrections shall determine the level of risk of the person to the community using the sex offender screening tool developed or selected pursuant to Section 26 of this act, and assign to the person a numeric risk level of one, two, or three. (Emphasis added.) Title 57 O.S. Supp. 2007, § 582.1 A. No less than seven (7) days prior to the date on which a person, who will be subject to the provisions of the Sex Offenders Registration Act, is to be released from a correctional institution, the person in charge of the correctional institution shall forward the registration information, as provided in subsection A of Section 585 of Title 57 of the Oklahoma Statutes, and numeric risk level to the Department of Corrections and to:1. The local law enforcement authority in the municipality or county in which the person expects to reside, if the person expects to reside within this state; or2. The local law enforcement authority that is identified by the correctional institution as the agency designated by another state to receive registration information, if the person expects to reside in that other state and that other state has a registration requirement for sex offenders. B. If a person, who will be subject to the provisions of the Sex Offenders Registration Act, received a suspended sentence or any probationary term, including a deferred sentence imposed in violation of subsection G of Section 991a of Title 22 of the Oklahoma Statutes, the court shall, on the day of pronouncing the judgment and sentence:1. Make a determination of the numeric risk level of the person using the sex offender screening tool developed or selected pursuant to Section 26 of this act; 2. Assign to the person a numeric risk level of one, two, or three; and3. Notify the person of the obligation to register as a sex offender as provided for in Section 585 of Title 57 of the Oklahoma Statutes. (Emphasis added.) Title 57 O.S Supp. 2007, § 582.2 ¶30 HB 1760 made no provision to include persons who "enter the state" within the level assignment system. Six months after the effective date, the Legislature passed an emergency measure to include such persons.26 This amendment provides as follows: F. Upon receiving registration information from a local law enforcement agency of a person who has entered this state and who has registered as a sex offender, as required in Section 583 of this title, the risk assessment review committee shall review the registration information and make a determination of the numeric risk level of the person using the sex offender screening tool. The risk assessment review committee shall provide written notification to the person and the local law enforcement agency of the numeric risk level that has been assigned to the person. Title 57 O.S. Supp. 2008, § 582.5 (F); 2008 Okla. Sess. Laws c. 94, § 1. ¶31 In determining legislative intent, "the court may look to each part of the statute, to other statutes upon the same or relative subjects, to the old law upon the subject, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation." Blevins v. W.A. Graham Co., 1919 OK 147, 182 P. 247. We see no intent to treat this amendment any differently than the provisions in § 582.1 and § 582.2 which show a prospective intent. ¶32 The 2008 amendments also amended subsection B of § 583.27 This amendment provides "local law enforcement authority shall forward the registration information to the risk assessment review committee of the Department of Corrections." Even though this language was added to subsection B of § 583 which applies to persons who enter the state "on or after November 1, 1989," the very language of the 2007 amendments creating the level assignment system clearly show a prospective intent. The 2007 scheme in 582.1 and 582.2 which indicate it is prospective would logically carry to the 2008 amendments making the level system applicable to persons entering Oklahoma. Further, any doubt must be resolved against a retroactive application. Good v. Keel, 1911 OK 264, ¶4, 116 P. 777. III. Applicability of SORA Amendments to Starkey Prior to the Enactment of the Level Assignment System ¶33 The law in effect throughout 1998 stated "[t]he registration with the Department of Corrections required by this section shall be maintained by the Department of Corrections for a period of ten (10) years from the date of registration." Title 57 O.S. Supp. 1997, § 583 (C). Section 583 was once again amended in 2004 to require registration to be 10 years "from the date of completion of the sentence." 2004 Okla. Sess. Laws. c. 162, § 1. This version defines, in a new subsection F (currently subsection G), the "date of the completion of the sentence" as "the day an offender completes all incarceration, probation and parole pertaining to the sentence." Since Starkey's deferred adjudication required him to successfully complete 10 years of community supervision, this amendment, if applied retroactively, essentially doubled his registration period. This amendment therefore extends Starkey's registration period, which should have ended in 2008, to 2018. The 2004, non-amended language in § 583 (B) stated as follows: B. Any person who has been convicted of an offense or received a deferred judgment for an offense on or after November 1, 1989, in another jurisdiction, which offense if committed or attempted in this state, would have been punishable as one or more of the offenses listed in Section 582 of this title and who enters this state shall be registered as follows: Subsections C and D then provided the new (underlined) amended language as follows: C. Except for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years from the date of the completion of the sentence and the information received pursuant to the registration with the Department of Corrections required by this section shall be maintained by the Department of Corrections for at least ten (10) years from the date of the last registration. D. Except for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years from the date of completion of the sentence and the information received pursuant to the registration with the local law enforcement authority required by this section shall be maintained by such authority for at least ten (10) years from the date of the last registration 2004 Okla. Sess. Laws. c. 162, § 1. ¶34 The primary goal of statutory construction is to ascertain and follow the intention of the Legislature.28 Here we think the legislative intent was necessarily implied. The Legislature must have known or it can be inferred that amending the registration periods in subsections C and D would affect those persons required to register in subsection B; namely, persons who have been convicted of an offense or received a deferred judgment for an offense on or after November 1, 1989. This is a different situation than in the previous discussion where there was specific language indicating a prospective application.29 We find the 2004 amendment to § 583 was intended to apply retroactively. IV. The Constitutional Prohibition on Ex Post Facto Laws ¶35 The Department raised for the first time in its response and motion for summary judgment the retroactive application of SORA does not violate the prohibition on ex post facto laws. In Starkey's Response to Defendants' Motion for Summary Judgment he asserted he never raised the issue of an ex post facto violation. The trial court's order did not address whether the ex post facto clause had been violated in this case. Starkey asserts on appeal if this Court should find SORA applies retroactively then we should also find that it violates the ex post facto clause. The Department encourages this Court to issue a "clear decision of binding precedent" essentially upon whether the retroactive application of SORA's provisions is prohibited by the ex post facto clause. ¶36 We find there is a strong public interest in protecting the public from ex post facto laws. We have previously found that a public law issue may be considered on appeal upon a theory not presented to the trial court.30 The retroactive extension of SORA's obligations is the primary issue. Because the Department applies the level assignments retroactively and because we have found the legislative intent was to apply the 2004 amendments to § 583 retroactively, it is incumbent to address whether or not these extensions violate the prohibition on ex post facto laws. ¶37 Article 2, section 15, of the Oklahoma Constitution, like Article I, Section 9, Clause 3 and Section 10, Clause 1 of the United States Constitution, provides "[n]o . . . ex post facto law . . . shall ever be passed." An ex post facto law is "[a] law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed."31 The United States Supreme Court in interpreting the United States Constitution's Ex Post Facto Clause has said: laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused. Beazell v. Ohio, 269 U.S. 167, 170, 46 S. Ct. 68, 70 L. Ed. 216 (1925). The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts. Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). The prohibition on ex post facto laws bars a legislature from enacting "any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . ." Beazell at 169; See also Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977). The Oklahoma Court of Criminal Appeals has a similar interpretation. In Spitnaz v. State, 1982 OK CR 115, ¶16, 648 P.2d 1271, 1275 - 1276, it found as follows: There is no concrete definition as to "what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition . . ." rather, "(t)he distinction is one of degree." Beazell, supra, at 269 U.S. at 171, 46 S. Ct. at 69, 70 L. Ed. at 218. It has been the rule in Oklahoma that a law is within the protection of the provision "when it inflicts a greater punishment than the law annexed to the crime at (the) time it was committed or alters (the) situation of accused to his disadvantage." Maghe v. State, 429 P.2d 535, 540 (Okl. Cr. 1967) (citing People v. Ward, 50 Cal. 2d 702, 328 P.2d 777, 76 A.L.R.2d 911 (1958)). Spitnaz v. State, 1982 OK CR 115, ¶16, 648 P.2d 1271, 1275 - 1276. ¶38 The framers of the Federal Constitution included the Ex Post Facto Clause in the body of the Constitution adopted in 1787 rather than deferring it to the amendment process.32 In doing so it is evident the framers viewed the ban on ex post facto laws as fundamental to the protection of individual liberty.33 Chief Justice John Marshal rationalized the framer's intent behind the constitutional protections against bills of attainder, ex post facto laws and laws impairing the obligations of contracts in Fletcher v. Peck, 10 U.S (6 Cranch) 87, 137-38, 3 L. Ed. 162 (1810). He wrote: Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; Fletcher v. Peck, 10 U.S (6 Cranch) 87, 137-38, 3 L. Ed. 162 (1810). In Landgraf v. USI Film Products, 511 U.S. 244, 266, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), Justice Stevens wrote that these constitutional protections: demonstrate that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. He also mentioned Justice Marshall's observation that "the Ex Post Facto Clause not only ensures that individuals have 'fair warning' about the effect of criminal statutes, but also 'restricts governmental power by restraining arbitrary and potentially vindictive legislation.'" Id. at 266-67 (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981)). ¶39 The ex post facto prohibition only applies to penal laws and therefore, the question is whether the provisions of SORA are punitive or are they merely regulatory. 34 ¶40 The Department asserts SORA has already been found to be a civil regulatory scheme by the Oklahoma Court of Civil Appeals and thus held it did not violate either the Oklahoma or United States Constitutions. Freeman v. Henry, 2010 OK CIV APP 134, ¶11, 245 P.3d 1258, 1260. Freeman relied upon a 10th Circuit Court of Appeals decision, U.S. v. Hinckley, 550 F.3d 926, 937 (10th Cir. 2008), which in turn relied partly on Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). Although Freeman addresses SORA, neither of the cases it relied upon made a determination about Oklahoma's law or Constitution. Hinckley dealt with the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (SORNA) and Smith concerned the Alaska Sex Offender Registration Act and found it did not violate the Ex Post Facto Clause of the United States Constitution. Freeman, however, provides little analysis to support its conclusion. Nor does it mention the Alaska Supreme Court's ruling subsequent to Smith which held ASORA did violate the Alaska Constitution's ex post facto clause. Doe v. State, 189 P.3d 999 (Alaska 2008). ¶41 We find the analytical framework used in Smith v. Doe and later in Doe v. State to determine if a sex offender registry scheme was penal rather than civil to be appropriate. This framework is derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). It has also been labeled the "intent-effects" test.35 In order to apply this framework, we first must ask whether there was legislative intent to make SORA and/or its amendments punitive. Did the legislature indicate a preference either expressly or impliedly for a civil label or a criminal label?36 Further, simply labeling a law as procedural, however, does not immunize it from scrutiny under the Ex Post Facto Clause. Collins v. Youngblood, 497 U.S. 37, 46, 110 S. Ct. 2715, 2721, 111 L. Ed. 2d 30 (1990). A subtle ex post facto violation is no more permissible than an overt one. Id. If the legislature intended to impose a punishment then our inquiry is over.37 However, if we conclude the legislature intended a non-punitive regulatory scheme then we must determine whether the scheme is so punitive either in purpose or effect as to negate that intent.38 ¶42 In 1997, the legislature amended § 581 of SORA by adding a findings subsection. In subsection B it states: The Legislature finds that sex offenders who commit other predatory acts against children and persons who prey on others as a result of mental illness pose a high risk of re-offending after release from custody. The Legislature further finds that the privacy interest of persons adjudicated guilty of these crimes is less important than the state's interest in public safety. The Legislature additionally finds that a system of registration will permit law enforcement officials to identify and alert the public when necessary for protecting the public safety. 1997 Okla. Sess. Laws c. 260, § 2 (eff. Nov. 1, 1997). ¶43 The legislative purpose appears to be the creation of a system to help prevent sex offenders from re-offending by permitting law enforcement to identify sex offenders and alert the public of such sex offenders when necessary. The stated intent seems to apply to sex offenders who commit "other predatory acts against children" and persons who prey on others because of "mental illness." The provisions of SORA, however, are not just geared towards repeat sex offenders or offenders with mental illness. SORA also applies to first time offenders and persons who have not been determined to suffer from a mental illness. This subsection is the only overt attempt to establish a purpose for SORA and has not been amended since its creation in 1997. This subsection does not expressly designate SORA's requirements as "civil". Justice Souter noted in his concurring opinion in Smith that other United States Supreme Court cases relied heavily on the legislature's stated label in finding a civil intent.39 Although there is evidence pointing to a civil intent, there is considerable evidence of a punitive effect. Even if we assume the act as amended was intended to be a civil regulatory scheme that fact does not dispose of the issue. The second part of the test, whether SORA's effects are punitive, is dispositive. ¶44 In Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the Supreme Court found "that 'only the clearest proof' that a law is punitive based on substantial factors will be able to overcome the legislative categorization." In his concurring opinion Justice Souter stated the standard of "clearest proof" made sense "only when the evidence of legislative intent clearly points in the civil direction."40 He believed there was considerable evidence that the act in Smith had criminal characterizations as well as civil.41 Justice Ginsburg also stated in her dissent that she would not demand "the clearest proof" be used to determine if a statute is in effect criminal rather than civil.42 In her opinion, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) guides one to use a neutral evaluation of the act's purpose and effects.43 As stated, there is no clear legislative categorization that SORA is a civil law. In Oklahoma legislative enactments are presumed constitutional.44 Where feasible this Court will construe statutes in a manner to uphold their constitutionality.45 The constitutionality of a statute will be upheld unless it is clearly inconsistent with the constitution. 46 The factors in the second part of the inquiry will help determine SORA's nature and provide a neutral framework for determining SORA's purpose and effects. ¶45 Smith dealt with an interpretation of the Federal Constitution's prohibition on ex post facto laws. Although Oklahoma's ex post facto clause is nearly identical to the Federal Constitution's provisions we are not limited in our interpretation of Oklahoma's constitution.47 How we apply the "intent-effects" test is not governed by how the federal courts have independently applied the same test under the United States Constitution as long as our interpretation is at least as protective as the federal interpretation.48 This Court has previously held: The people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it is the final authority. This is so even if the state constitutional provision is similar to the federal constitution. The United States Constitution provides a floor of constitutional rights - state constitutions provide the ceiling. Daffin v. State, 2011 OK 22, n. 20, 251 P.3d 741, n. 20 (citing Alva State Bank & Trust Co. v. Dayton, 1988 OK 44, 755 P.2d 635) (Kauger, J., specially concurring). ¶46 The second part of the inquiry utilizes the seven Mendoza-Martinez factors in order to determine whether the effects of the law are punitive. These factors, although not exhaustive, are useful in determining whether the overall effects of a statute are so punitive as to negate any civil regulatory intent. This involves the weighing of relatively subjective factors. Courts have emphasized certain factors over others at various times and there is no precise formula to their application.49 These factors are as follows: (1) "[w]hether the sanction involves an affirmative disability or restraint";(2) "whether it has historically been regarded as a punishment";(3) "whether it comes into play only on a finding of scienter";(4) "whether its operation will promote the traditional aims of punishment--retribution and deterrence";(5) "whether the behavior to which it applies is already a crime";(6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and(7) "whether it appears excessive in relation to the alternative purpose assigned." Doe v. State, 189 P.3d 999, 1008 (Alaska 2008) (quoting, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)). 1. Affirmative disability or restraint ¶47 We apply the first Mendoza-Martinez factor to determine whether SORA involves an affirmative disability or restraint. The United States Supreme Court said in Smith v. Doe, 538 U.S. 84, 99-100, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) "[h]ere, we inquire how the effects of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive." The Court found ASORA did not impose a disability.50 It determined the Ninth Circuit Court of Appeals was in error when it found a disability arose from the "in-person" registry requirement.51 It emphasized the fact that there was actually no "in-person" appearance requirements imposed upon any sex offender subject to ASORA.52 The Supreme Court also said "[b]y contrast offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision."53 ¶48 As Starkey points out, Oklahoma's SORA is very different from the ASORA reviewed by the United States Supreme Court. Under § 583 of SORA a person is required to register "in person" with the Department of Corrections within 3 business days of conviction if not incarcerated and 3 days prior to release from an institution.54 It requires "in person" registration with any local law enforcement authority of an area where such person intends to reside for 7 consecutive days or longer.55 It further requires "in person" registration with the Department of Corrections and local law enforcement no less than 3 business days prior to abandoning or moving from their registered address.56 For persons who enter the state, they are required to register "in person" with the Department of Corrections and local law enforcement if they intend to be in the state for any purpose for 5 consecutive days or longer, has any type of employment with or without compensation for more than 5 cumulative days in any 60-day period or is enrolled as a student within this state.57 It also requires "in person" registration with the Department of Corrections and local law enforcement within 3 business days of changing or terminating employment or changing enrollment status as a student.58 Further, a person subject to the act shall verify their address "in person" annually for a level one designation, semi-annually for a level two designation and every 90 days for a habitual or aggravated sex offender and those receiving a level three designation.59 ¶49 Although SORA poses no physical restraints on registrants the affirmative "in person" registration and verification requirements alone cannot be said to be "minor and indirect" especially when failure to comply is a felony subject to 5 years imprisonment and a fine not to exceed $5,000.60 Other courts have found the "in person" requirements "place substantial restrictions on the movements of lifetime registrants" which can amount to an affirmative disability.61 As the Department argues, Starkey who received a deferred adjudication and 60 days in jail in Calhoun County, Texas, would now be required to make an "in person" appearance every 90 days for life and every time he moves, changes employment, changes student status, or resides somewhere for 7 consecutive days or longer. All of this would be required under threat of prosecution. These duties are significant and intrusive. We agree with Justice Stevens' finding in his dissent in Smith v. Doe, that these duties imposed on offenders are similar to the treatment received by probationers subject to continued supervision.62 ¶50 In addition to the "in person" registration and verification requirements, offenders in Oklahoma, among other things, have restrictions placed on where they can live and with whom they can live. An offender may not reside, either temporarily or permanently, within a two-thousand-foot radius of any public or private school, educational institution, property or campsite whose primary purpose is working with children, a playground or park operated or supported in whole or part by public funds, or a licensed child care center.63 This restriction is made regardless of whether the original victim was a child or an adult. It is also unlawful for an offender to reside with minor children if their original victim was a minor child.64 A violation is a felony punishable by one to three years in prison.65 Further, with few exceptions, a registered sex offender shall not reside with other registered sex offenders.66 ¶51 Some additional legal obligations are predicated on SORA registration. One in particular pertains to a sex offender's driver's license or identification card. A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years.67 Therefore registrants are required to pay four times the amount of a non-registrant. ¶52 SORA also requires a local law enforcement entity to make its sex offender registry available upon request.68 The information in the registry includes the name, photograph, address, and description of the offender and the offender's crime and level designation.69 Such information is further made available on the Department of Corrections' website.70 If the offender is classified as habitual or aggravated, local law enforcement may proactively notify anyone it determines appropriate.71 ¶53 Originally, a registrant's personal information was maintained by the Department of Corrections.72 The statue provided that a file concerning registrant information "shall be made available to state, county and municipal law enforcement agencies."73 The file was also not made available for public inspection and no person other than a law enforcement officer employed by a state, county or municipal law enforcement agency had access to the file.74 In 1995, Section 584 of SORA was amended to allow local law enforcement agencies to make the registry available to schools, child care facilities, and other agencies and entities that provide services to children.75 However, the offender's address was not provided to such entities. Section 584 was again amended in 1997 and each year thereafter through 2000 with the cumulative effect of removing any restrictions on making registry information available.76 ¶54 Although some of the information, such as conviction information, may otherwise be available, the internet has increased the unrestricted dissemination of personal information of sex offenders. The Department's website provides the sex offender registry in a searchable format. Anyone at any time and for any reason can find the address and picture of a registered sex offender along with the statute under which the offender was convicted and the level assigned. Other relevant information concerning the facts surrounding the conviction is not provided. ¶55 Some courts have found such aggressive public notification of sex offender crimes "exposes sex offenders to profound humiliation and community-wide ostracism."77 The Supreme Court of Indiana has found the effect of the public dissemination "subjects offenders to 'vigilante justice' which may include lost employment opportunities, housing discrimination, threats, and violence."78 Justice Stevens said in his dissent in Smith v. Doe that Alaska's sex offender registry statutes "impose significant affirmative obligations and a severe stigma on every person to whom they apply."79 In his concurring opinion in Smith, Justice Souter quoted the following from E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997): families have experienced profound humiliation and isolation as a result of the reaction of those notified. Employment and employment opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other personal relationships have been destroyed or severely strained. Retribution has been visited by private, unlawful violence and threats and, while such incidents of 'vigilante justice' are not common, they happen with sufficient frequency and publicity that registrants justifiably live in fear of them. Smith v. Doe, 538 U.S. 84, 109, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (Souter, J., concurring in the judgment). Justice Souter further stated "there is significant evidence of onerous practical effects of being listed on a sex offender registry."80 ¶56 The Alaska Supreme Court noted many articles concerning the harmful effects a registry places on an offender which are noted herein.81 ¶57 Currently, SORA provides dissemination of substantial personal information about a sex offender not otherwise readily available from a single governmental source. We do not make any determination of the constitutionality of any of the individual registration requirements but have reviewed the requirements in their totality to address the cumulative effect on the issue of the first Mendoza-Martinez factor and the punitive effect of the act in its totality. We find SORA's registration and notification provisions impose substantial disabilities on registrants. Therefore, we find the first Mendoza-Martinez factor clearly favors a punitive effect. 2. Sanctions that have been historically considered punishment ¶58 The second Mendoza-Martinez factor requires us to determine whether the scheme established by SORA and its effects have historically been regarded in our history and traditions as punishment. Sex offender registry statutes are a relatively new creation therefore we look to historical equivalents in determining any punitive effects. In Smith v. Doe, the United States Supreme Court considered whether the registration requirement was analogous to the colonial punishment of public shaming, humiliation, and banishment.82 The Court found that historically those punishments involved more than just the dissemination of information and included face-to-face shaming or expulsion from the community.83 It disagreed with the comparison and concluded "[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate government objective as punishment."84 ¶59 In Doe v. State, 189 P.3d 999 (Alaska 2008), the Alaska Supreme Court disagreed with the United States Supreme Court's analysis. It found the dissemination provisions of ASORA at least resemble the punishment of shaming. Id. at 1012. As mentioned, SORA's information is available on the internet to anyone at any time and for any reason. SORA is different from the ASORA reviewed by the Supreme Court in Smith v. Doe. As an example of potential "shaming," Oklahoma law requires certain offenders to have the words "Sex Offender" placed on his or her driver's license.85 This requirement is predicated upon SORA registration. Showing one's driver's license is frequently necessary in face-to-face encounters when cashing a check, using a credit card, applying for credit, obtaining a job, entering some public buildings, and in air travel as a few examples. This subjects an offender to unnecessary public humiliation and shame and is essentially a label not unlike a "scarlet letter."86 ¶60 In addition, SORA's residency restrictions are similar to the traditional punishment of banishment. Section 590 of SORA provides as follows: A. It is unlawful for any person registered pursuant to the Sex Offenders Registration Act to reside, either temporarily or permanently, within a two-thousand-foot radius of any public or private school site, educational institution, property or campsite used by an organization whose primary purpose is working with children, a playground or park that is established, operated or supported in whole or in part by city, county, state, federal or tribal government, or licensed child care center as defined by the Department of Human Services. Establishment of a day care center or park in the vicinity of the residence of a registered sex offender will not require the relocation of the sex offender or the sale of the property… Nothing in this provision shall require any person to sell or otherwise dispose of any real estate or home acquired or owned prior to the conviction of the person as a sex offender. Title 57 O.S. Supp. 2012, § 590. If a person owns a home within a prohibited area and becomes subject to SORA registration, they must vacate the property.87 The offender does not have to dispose of the property, however, the offender is prohibited from residing on the property (ostensibly allowing a registered offender the ability to be at the residence, but not "reside" on the property). In analyzing this Mendoza-Martinez factor, the Supreme Court of Kentucky determined a similar residency restriction was "regarded in our history and traditions as punishment."88 The court found the restriction expels registrants from their homes even if they resided there prior to the statute's enactment.89 The Oklahoma version of SORA is even more restrictive than the Kentucky law because the restrictive distance is twice as large as Kentucky's one-thousand-foot distance. ¶61 The wide dissemination of the sex offender's information and the displaying of the word "Sex Offender" on a driver's license is at least analogous to the traditional punishment of shaming. The expulsion from one's residence is likewise analogous to the traditional punishment of banishment. Again, we are not making a determination of the constitutionality of any of these individual registration requirements but for purposes of analyzing the second Mendoza-Martinez factor we find the totality of these requirements weigh in favor of punishment. 3. Finding of scienter ¶62 The third Mendoza-Martinez factor we consider is whether SORA's obligations are incumbent on a finding of scienter.90 Section 582 of SORA identifies those sections of the criminal code if violated mandate registration. These are as follows: A. . . . Section 843.5 of Title 21 of the Oklahoma Statutes if the offense involved sexual abuse or sexual exploitation as those terms are defined in Section 1-1-105 of Title 10A of the Oklahoma Statutes, Section 681, if the offense involved sexual assault, 741, if the offense involved sexual abuse or sexual exploitation, Section 843.1, if the offense involved sexual abuse or sexual exploitation, Section 852.1, if the offense involved sexual abuse of a child, 865 et seq., 885, 886, 888, 891, if the offense involved sexual abuse or sexual exploitation, 1021, 1021.2, 1021.3, 1024.2, 1040.12a, 1040.13, 1040.13a, 1087, 1088, 1111.1, 1114 or 1123 of Title 21 of the Oklahoma Statutes. Title 57 O.S. 2011, § 582. These statutes include sections 1111.1 and 1114 of title 21 of the Oklahoma Statutes which, among other things, cover statutory rape. Statutory rape does not require scienter because it is not a defense that a defendant did not know the victim was under the age of consent.91 However, a majority of the crimes listed in § 582 require scienter. When acknowledging that some triggering crimes do not require scienter, courts have found this factor either does not support a punitive effect or weakly implies a punitive effect.92 We find that because not all SORA registration triggering crimes require scienter this factor should be given little weight in our analysis. 4. Traditional aims of punishment - retribution and deterrence ¶63 The fourth Mendoza-Martinez factor addresses whether SORA promotes the traditional aims of punishment, e.g., retribution and deterrence. Merely because a statute may deter future crimes does not in and of itself impose a punishment.93 SORA promotes deterrence through the threat of negative consequences, for example, eviction, living restrictions, and humiliation. Even more compelling than deterrence is the retributive portion of this factor. ¶64 As previously determined, the level assignments are prospective and not retroactive. Regardless, it is apparent the level assignments are being applied retroactively by the Department. The level assignments as applied herein effectively extended Starkey's SORA registration period. Starkey was initially required to register for 10 years, which was extended to 20 years by the 2004 amendments.94 Thereafter in 2008, by virtue of the level assignments as applied by the Department, Starkey's registration period was extended for the remainder of his life.95 Both of these extensions by legislative action were made without any triggering act or alleged violation of law by Starkey. ¶65 SORA determines who must register based solely on the criminal statute a person is convicted of violating and not any individual determination of the risk the person poses to the community. In a similar Mendoza-Martinez analysis the Supreme Court of Kentucky found "[w]hen a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction begins to look far more like retribution for past offenses than a regulation intended to prevent future ones."96 That court also quoted the following from Justice Souter's concurring opinion in Smith v. Doe: Ensuring public safety is, of course, a fundamental regulatory goal, see, e.g., United States v. Salerno, 481 U.S. 739, 747, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no further, given pervasive attitudes toward sex offenders, see infra, at 1156, n. See Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) (Ex Post Facto Clause was meant to prevent "arbitrary and potentially vindictive legislation"). The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169, 83 S. Ct. 554. Commonwealth v. Baker, 295 S.W.3d 437, 444 (Ky. 2009) (quoting Smith v. Doe, 538 U.S. 84, 108-09, 123 S. Ct. 1140, 1155-56, 155 L. Ed. 2d 164 (2003)) (Souter, J., concurring in the judgment). ¶66 In our view, the retroactive extensions of SORA registration clearly appear in the nature of retribution imposed against sex offenders for their past crimes. For all intents and purposes, the extensions are solely based on the statute the offender was convicted without regard to any mitigating factors. No hearing is allowed when making a level designation. Further, there is essentially no mechanism to reduce or end registration based upon a showing the offender is no longer a threat to the community. The few exceptions are for a level 1 offender to petition to have his or her registration period reduced from 15 years to 10 years after being registered for 10 years97 and for persons convicted of certain statutory rape crimes to petition to be removed from the registry.98 ¶67 In evaluating the fourth Mendoza-Martinez factor of retribution and deterrence we find the retroactive extension of SORA's registration based solely upon the individual's prior conviction leads us to weigh this factor in favor of a punitive effect. 5. The behavior is already a crime ¶68 The fifth Mendoza-Martinez factor requires us to determine whether the behavior to which SORA applies is already a crime. As mentioned, SORA registration only applies to offenders convicted of certain crimes and does not arise based on an individualized determination of an offender's risk of recidivism. It cannot be waived based upon proof the offender poses little or no risk. It is the determination of guilt beyond a reasonable doubt of a sex offense, as listed, and not a person's potential for recidivism that triggers the registration requirement. Therefore, the fact that SORA applies only to behavior that is already a crime supports the conclusion this Mendoza-Martinez factor has a punitive effect. 6. Rational connection to a non-punitive purpose ¶69 The sixth Mendoza-Martinez factor we address is whether SORA has a rational connection to a legitimate non-punitive purpose. The 1997 amendments to SORA added legislative findings.99 Those findings provide SORA is a system created to permit law enforcement to identify and alert the public when necessary for protecting the public safety. The context of these findings is to protect the public from sex offender recidivism. These 1997 findings indicate a legitimate non-punitive purpose of public safety. The protection of its citizens is a basic obligation of state government. Our evaluation of the sixth Mendoza-Martinez factor concludes SORA does advance a non-punitive purpose of public safety. 7. Excessiveness ¶70 The final Mendoza-Martinez factor to be addressed concerns whether the obligations imposed by SORA registration are excessive with respect to the non-punitive objective of public safety. The Supreme Court in Smith v. Doe described excessiveness as follows: The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. Smith v. Doe, 538 U.S. 84, 105, 123 S. Ct. 1140, 1154, 155 L. Ed. 2d 164 (2003) The non-punitive objective revealed in § 581 is to protect the public from sex offenders re-offending after release from custody. This non-punitive objective, while undeniably important, will not serve to render a statute so broad and sweeping as to be non-punitive.100 ¶71 Our inquiry examines the means chosen to carry out this legitimate purpose and determine whether such means are excessive. This determination is based upon the overall scope in its entirety of the obligations imposed as a result of SORA registration. ¶72 SORA registration is imposed on a wide variety of crimes of which the severity of the crime and circumstances surrounding each crime can vary greatly. The Department's actions which extended the period of SORA registration have the effect of also extending all requisite obligations. The trial court found Starkey was originally required to register for 10 years. We herein interpret the intent behind the 2004 SORA amendments101 to extend Starkey's registration period to 10 years following his probation. Thereafter with the 2008 amendments,102 the Department, without a hearing, extended Starkey's registration period to life. These extensions were made without any individual determination of Starkey's risk of recidivism or threat to the citizens of Oklahoma. The lifetime extension was based solely upon the crime for which he originally entered his plea, or here, the alleged Oklahoma equivalent crime. Starkey timely filed his Petition in August 2009 to reduce his level assignment according to the law in effect at that time. Effective November 1, 2009, the ability to petition for a level assignment reduction was removed by the Legislature.103 This eliminated any mechanism, other than the few already discussed, for an offender to petition for relief or discharge from the obligation of registration and the many contingent obligations resulting from SORA registration. This is so regardless if one could provide the clearest proof of rehabilitation. ¶73 The Department's retroactive application of the level assignment provisions will require Starkey to verify his address "in person" every 90 days for the rest of his life regardless if there is any change to his address. His personal information will be publicly disseminated for the rest of his life. His current address and photograph will be linked to the Department's website showing he is a level 3 offender; this is the most severe level and yet it can cover a wide range of circumstances. A level 3 designation is also the level given to habitual and aggravated sex offenders. Starkey was not found to be either a habitual or aggravated sex offender; in fact he received a deferred adjudication with 60 days in the Calhoun County, Texas Jail. Therefore, Starkey is viewed in the same manner as offenders who have a known risk of recidivism and/or are habitual or aggravated sex offenders. The retroactive application of the level assignments based solely upon the crime committed absent any evidence of reoffending or violation of the requirements of SORA registration are excessive and punitive in nature. ¶74 In her analysis of this seventh Mendoza-Martinez factor, Justice Ginsburg stated the following in her dissent in Smith: What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose. See Mendoza-Martinez, 372 U.S., at 169, 83 S. Ct. 554. As respondents concede, . . . the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation. Smith v. Doe, 538 U.S. 84, 116-17, 123 S. Ct. 1140, 1160, 155 L. Ed. 2d 164 (2003) (Ginsburg, J., dissenting) (citations omitted). ¶75 We find Justice Ginsburg's dissent persuasive. SORA is more stringent than the ASORA reviewed by the Supreme Court in Smith. The Act's many obligations impose a severe restraint on liberty without a determination of the threat a particular registrant poses to public safety. We find SORA's obligations are excessive in relation to its non-punitive public safety purpose and therefore find this factor also favors a punitive effect. V. Conclusion Concerning the Constitutional Prohibition Against Ex Post Facto Laws ¶76 Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws. ¶77 Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution. ¶78 This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted. ¶79 Our scope is focused on the constitutionality of retroactively extending SORA registration. The legislature has continued to move the finish line without a hearing and with no change in circumstances. Only by reason of legislative action, Starkey has had his finish line moved several times with no demonstrated change of conditions over those that existed when he submitted himself to the jurisdiction and enforcement of the Oklahoma SORA. Having found SORA's effects to be punitive, we find the retroactive extension of its registration period violates the prohibition on ex post facto laws provided in Article 2, § 15 of the Oklahoma Constitution. CONCLUSION ¶80 The trial court's Order found the provisions of SORA were not to be retroactively applied. The trial court held the Oklahoma Department of Corrections was to apply the version of SORA in existence at the time Starkey pled nolo contendere to the charge of sexual assault on October 12, 1998, in Texas. Under the trial court's Order, Starkey would only be required to register for the original ten-year period which he had already completed. ¶81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years. We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution.104 We also find the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, §§ 582.1 - 582.5, as amended, violates the ex post facto clause. These level assignments are only to be applied prospectively. We need not address Starkey's due process violation claims because our holding that the level assignments do not apply retroactively is dispositive. ¶82 We disagree, however, with the trial court's finding that the date when Starkey pled nolo contendere in Calhoun County Texas, October 12, 1998, is the correct date to determine what Oklahoma law is applicable to him. The Order only indicates he has resided in Oklahoma since 1998. The correct date to apply is when Starkey became subject to SORA registration by entering and intending to be in Oklahoma after his conviction.105 Starkey voluntarily came to Oklahoma and therefore voluntarily subjected himself to SORA after his conviction. Following his conviction, the exact date he entered Oklahoma with the intent to "be in the state" for the requisite period is relevant in determining what version of SORA is applicable. The requirements of the registry to which he must comply would be established upon his entry and intent "to be in" Oklahoma. However in Starkey's case, the applicable provisions of both versions of 57 O.S., § 582 effective during 1998 were the same and the applicable provisions of 57 O.S. Supp. 1997, § 583 were not amended in 1998. Therefore, the exact date when Starkey entered Oklahoma in 1998 does not matter for our analysis. We find the trial court's order is affirmed as modified to apply the date of Starkey's entry with the intent to be in this State following his conviction rather than the actual date of conviction in Texas as the critical point to determine which provisions of SORA would apply to him. ¶83 We point out that this decision does not address the requirements of the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (SORNA). AFFIRMED AS MODIFIED ¶84 REIF, V.C.J., KAUGER, J., WATT, J., EDMONDSON, J., COMBS, J., and GURICH, J., concur. ¶85 GURICH, J., concurs: I concur. In 1998, the Oklahoma Legislature determined that 10 years was an adequate time for sex offenders like Starkey to remain on the registry in order to protect the public. Starkey was sentenced in 1998 and has remained on the Oklahoma Sex Offender Registration list since that time. Starkey's registration period was set to expire in 2008. However, because of substantive changes in the law, he has remained on the registry for more than 10 years. The record reflects Starkey has not re-offended. The retroactive application of the numerous changes to OSORA transformed the registry into a system of punishment. The dissenters' reliance on Smith v. Doe, 538 U.S. 84 is misplaced because the Alaska registration system reviewed in that case did not have the constitutional infirmities present in this case. The legitimate public safety interest in monitoring sex offender presence in the community is upheld by this decision, while the integrity of the Constitution is maintained. ¶86 COLBERT, C.J., concurs in part and dissents in part. ¶87 WINCHESTER, J., dissenting (by separate writing) and TAYLOR, J., dissenting. ¶88 TAYLOR, J., dissenting: The Oklahoma Sex Offender Registry Act is a civil registration provision that reflects the public record and serves to inform citizens of important public information. The legislature clearly intended this to have retroactive application. The Act is a civil, nonpunitive, noncriminal regulatory program that does not violate any ex post facto concerns when applied retroactively. Smith v. Doe, 538 U.S. 84, Connecticut DPS v. Doe, 538 U.S. 1. This registration list is not punishment. It is a convenient uniform reflection of the public record. It is one of the many, many unpleasant lifetime civil consequences of being convicted of a felony. The public's right to have this information trumps the discomfort and inconvenience caused to the convicted sex offender. FOOTNOTES 1 The document entitled "Additional Conditions of Community Supervision" is on a standard form which repeatedly uses the singular "victim" yet it names two persons, who we assume according to this document were both 15 years of age. 2 The record doesn't reflect the specific Texas statute Starkey was charged under, however, the statute concerning sexual assault at the time of the commission of the crime is found in Tex. Penal Code Ann. § 22.011 (Vernon 1996). It provides: Sexual Assault (a) A person commits an offense if the person:(1) intentionally or knowingly:(A) causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent;(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or(2) intentionally or knowingly:(A) causes the penetration of the anus or female sexual organ of a child by any means;(B) causes the penetration of the mouth of a child by the sexual organ of the actor;(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:(1) the actor compels the other person to submit or participate by the use of physical force or violence;(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;(8) the actor is a public servant who coerces the other person to submit or participate;(9) the actor is a mental health services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor; or(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser.(c) In this section:(1) "Child" means a person younger than 17 years of age who is not the spouse of the actor.(2) "Spouse" means a person who is legally married to another.(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.(e) It is an affirmative defense to prosecution under Subsection (a)(2) that the actor was not more than three years older than the victim, and the victim was a child of 14 years of age or older.(f) An offense under this section is a felony of the second degree. 3 Article 6252-13c.1 was redesignated as 62.01 in 1997 and again redesignated as 62.001 in 2005. The current Sex Offender Registration Program can be found at Tex. Code. Crim. Proc. Ann. art. 62.001 et seq. (Vernon 2011). 4 Title 57 O.S. Supp. 1997, § 582 (1997 Okla. Sess. Laws c. 260, § 3 (eff. November 1, 1997)) and 57 O.S. Supp. 1998, § 582 (1998 Okla. Sess. Laws c. 347, § 1 (eff. November 1, 1998)). 5 Title 57 O.S. Supp. 2007, § 582.5. 6 2008 Okla. Sess. Laws c. 94, § 1 (emerg. April 29, 2008). 7 Title 57 O.S. Supp. 2007, § 583 (C) and (D). 8 Title 57 O.S. Supp. 2007, § 582.5 (D). 9 2009 Okla. Sess. Laws c. 404, §§ 3-4. 10 Title 57 O.S. Supp. 2009, § 582.5 (D). 11 The "deferred adjudication" he received is the equivalent of a "deferred judgment" a/k/a "deferred sentence" in Oklahoma found in 22 O.S. § 991c. The Oklahoma Court of Criminal Appeals has found that "[i]n a deferred sentence the district court retains jurisdiction and only a conditional order, not a judgment and sentence, is entered." Nguyen v. State, 1989 OK CR 6, ¶5, 772 P.2d 401, 403, overruled on other grounds by Gonseth v. State, 1994 OK CR 9, ¶9, 871 P.2d 51, 54. A deferred sentence "is not a conviction until such time as the trial court pronounces judgment and sentence." Belle v. State, 1973 OK CR 438, ¶11, 516 P.2d 551, 552. Title 22 O.S. §991c(C), at all relevant times to this case, provides if the defendant completes all the conditions of the deferred judgment the defendant shall be discharged without a court judgment of guilt. Therefore, if a defendant completes the conditions of the deferred judgment and the court so finds, there will be no conviction. Some statutes define a deferred judgment as a conviction for a particular purpose; however, the Sex Offenders Registration Act (SORA), 57 O.S. § 581 et seq., does not have such a definition. 12 Title 57 O.S. Supp. 1998, §§ 582 and 583. 13 In1999, amendments to § 582 and 583 required persons receiving a probationary term to register (1999 Okla. Sess. Laws c. 336, §§ 1 and 2 (eff. Nov. 1, 1999)). In 2000, § 583 was amended to specifically require certain persons receiving a deferred sentence to register (2000 Okla. Sess. Laws c. 349, § 3 (eff. Nov. 1, 2000)). 14 Citing Castillo v. State, 1998 OK CR 9, ¶¶ 7-8, 954 P.2d 145, 147. 15 Citing Welch v. Armer, 1989 OK 117, ¶27, 776 P.2d 847, 850, Nestell v. State, 1998 OK CR 6, ¶5, 954 P.2d 143, 144, and State v. Watkins, 1992 OK CR 50, ¶5, 837 P.2d 477, 478. 16 Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, ¶ 31, 257 P.3d 416, 421. 17 Title 57 O.S. Supp. 2007, § 583. 18 Reimers at ¶32. 19 Reimers at ¶30. 20 Smith v. Doe, 538 U.S. at 96. 21 Id. at 105. 22 Substantive law is the part of the law that creates rights, duties and obligations. See Mid-America Corp v. Miller, 1962 OK 123, 372 P.2d 14 and Williams v. State, 677 S.E.2d 773 (Ga.Ct.App. 2009). 23 Multiple Injury Trust Fund v. Pullum, 2001 OK 115, 37 P.3d 899; Barnhill v. Multiple Injury Trust Fund, 2001 OK 114, 37 P.3d 890; Autry v. Multiple Injury Trust Fund, 2001 OK 79, 38 P.3d 213; Walls v. American Tobacco Co., 2000 OK 66, 11 P.3d 626; Fraternal Order of Police Lodge No. 165 v. City of Choctaw, 1996 OK 78, 933 P.2d 261; Department of Human Services ex rel. Pavlovich v. Pavlovich, 1996 OK 71, 932 P.2d 1080; Houck v. Hold Oil Corp., 1993 OK 166, 867 P.2d 451; Kluver v. Weatherford Hosp. Authority, 1993 OK 85, 859 P.2d 1081; Seal v. Corporation Com'n, 1986 OK 34, 725 P.2d 278; Holdsworth v. Holdsworth, 1986 OK 29, 720 P.2d 326, overruled by Nantz v. Nantz, 1988 OK 9, 749 P.2d 1137, which found retroactive application of amendments could be made because the right they dealt with was not vested; Timmons v. Royal Globe Ins. Co., 1985 OK 76, 713 P.2d 589; Smith v. Smith, 1982 OK 115, 652 P.2d 297 also overruled by Nantz v. Nantz, 1988 OK 9, 749 P.2d 1137, which found retroactive application of amendments could be made because the right they dealt with was not vested; Wickham v. Gulf Oil Corp., 1981 OK 8, 623 P.2d 613; MFA Ins. Co. v. Hankins, 1980 OK 66, 610 P.2d 785; State ex rel. State Bd. Of Registration for Professional Engineers and Land Surveyors v. Engineered Coatings, Inc., 1975 OK 149, 542 P.2d 508; Mid-Continent Cas. Co. v. P & H Supply, Inc., 1971 OK 135, 490 P.2d 1358; Sunray DX Oil Co. v. Great Lakes Carbon Corp., 1970 OK 149, 476 P.2d 329; Wilbanks v. Wilbanks, 1968 OK 56, 441 P.2d 967; State v. Bailey, 1956 OK 338, 305 P.2d 548; Phillips v. H. A. Marr Grocery Co., 1956 OK 104, 295 P.2d 765; State ex rel. Allen v. Board of Ed. of Independent School Dist. No. 74 of Muskogee County, 1952 OK 241, 246 P.2d 368; Board of Trustees of Firemen's relief and Pension Fund of City of Tulsa v. Naughton, 1946 OK 273, 173 P.2d 425; Lincoln Nat. Life Ins. Co. v. Read, 1944 OK 317, 156 P.2d 368; State v. Ward, 1941 OK 343, 118 P.2d 216; Baker v. Tulsa Bldg. & Loan Ass'n, 1936 OK 568, 66 P.2d 45; Washabaugh v. Bartlett Collins Glass Co., 1936 OK 294, 57 P.2d 1162; Swatek Const. Co. v. Williams, 1935 OK 1139, 58 P.2d 585; Franklin v. Sovereign Camp, W.O.W., 1930 OK 195, 291 P. 513; Board of Equalization of Muskogee County v. Exchange Nat. Bank of Muskogee, 1924 OK 1001, 230 P. 728; Roe v. Burt, 1917 OK 390, 168 P. 405; Crump v. Guyer, 1916 OK 254, 157 P. 321; Casey v. Bingham, 1913 OK 321, 132 P. 663; and St. Louis & S.F.R. Co. v. Thompson, 1912 OK 818, 128 P. 685. 24 Title 57 O.S. Supp. 2007, §§ 582.1 -582.5; 2007 Okla. Sess. Laws c. 261, §§ 23-26. 25 Okla. Const. art. 2, § 15. 26 2008 Okla. Sess. Laws c. 94, § 1 (emergency clause only; approved by the Governor on April 29, 2008). 27 2008 Okla. Sess. Laws c. 94, § 2. 28 Autry v. Multiple Injury Trust Fund, 2001 OK 79, ¶12, 38 P.3d 213, 217. 29 See discussion supra ¶¶ 28 - 32. 30 Davis v. GHS Health Maint. Org., Inc., 2001 OK 3, ¶ 25, 22 P.3d 1204, 1212. See also Simons v. Brashears Transfer & Storage, 1959 OK 156, ¶ 24, 344 P.2d 1107, 1113, where this Court held "[w]e have held numerous times that we would not consider constitutional questions not raised in the trial court unless the public interest and welfare so requires." 31 Black's Law Dictionary 662 (4th ed. 1968). 32 See State v. Letalien, 2009 ME 130, ¶23, 985 A.2d 4, 13. 33 Id. 34 Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 2718-19, 111 L. Ed. 2d 30 (1990). 35 Russell v. Gregoire, 124 F.3d 1079, 1084 (9th Cir. 1997). 36 U.S. v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). 37 Smith v. Doe, 538 U.S. 84, 92-93, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). 38 Id. at 92. 39 Id. at 107-108 (Souter, J., concurring in the judgment). 40 Smith v. Doe, 538 U.S. 84, 107, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (Souter, J., concurring in the judgment). 41 Id. 42 Id. at 115 (Ginsburg, J., dissenting). 43 Id. 44 In re Estate of Bell-Levine, 2012 OK 112, ¶9, 293 P.3d 964, 967. 45 Id. 46 Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶18, 148 P.3d 842, 848. 47 See Messenger v. Messenger, 1992 OK 27, ¶ 17, 827 P.2d 865, 872. This Court used a similar analysis when discussing the due process clause in the Oklahoma Constitution. 48 Id.; the Supreme Court of Alaska held similarly in Doe v. State, 189 P.3d 999, 1005 (Alaska 2008) (finding it has never indicated "that federal interpretation of the federal ex post facto prohibition prevents us from reaching a different, and more protective, result under the Alaska Constitution."). 49 State v. Letalien, 2009 ME 130, ¶32, 985 A.2d 4, 17. 50 Smith at 101. 51 Smith v. Doe, 538 U.S. 84, 101, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (See Doe v. Otte, 259 F.3d 979 (9th Cir. 2001), rev'd sub nom. Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003)). 52 Smith at 101. 53 Id.; the Court also notes that "[t]he Act [ASORA] does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences." Id. at 100. It "imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint." Id. 54 Title 57 O.S. 2011, § 583; the "in person" requirement was added by 2007 Okla. Sess. Laws c. 261, § 27 (eff. Nov. 1, 2007). 55 Id. 56 Id. 57 Id. 58 Title 57 O.S. 2011, § 583; added by 2009 Okla. Sess. Laws c. 404, §5 (eff. Nov. 1, 2009). 59 Title 57 O.S. 2011, § 584. 60 Title 57 O.S. Supp. 2011, § 587. 61 State v. Letalien, 2009 ME 130, ¶37, 985 A.2d 4, 18. 62 Smith v. Doe, 538 U.S. 84, 111, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (Stevens, J., dissenting) (stating the obligations are "comparable to the duties imposed on other convicted criminals during periods of supervised release or parole"). 63 Title 57 O.S. Supp. 2012, § 590. 64 Id. (An exception is provided for children, stepchildren and grandchildren if they were not the victim). 65 Id. 66 Title 57 O.S. Supp. 2012, § 590.1. 67 Title 47 O.S. 2011, §§ 6-105.3 and 6-115. 68 Title 57 O.S. 2011, § 584 (L). 69 Title 57 O.S. 2011, § 584 (D). 70 Oklahoma Department of Corrections, http://www.doc.state.ok.us/offenders/offenders.htm (last visited April 14, 2013). 71 Title 57 O.S. 2011, § 584 (N). 72 Title 57 O.S. Supp. 1989, § 584 (C). 73 Id. 74 Id. 75 Title 57 O.S. Supp. 1995, § 584 (E). 76 1997 Okla. Sess. Laws c. 360, § 5 (eff. Nov. 1, 1997); 1998 Okla. Sess. Laws c. 347, § 2 (eff. Nov. 1, 1998); 1999 Okla. Sess. Laws c. 336, § 3 (eff. Nov. 1, 1999); and 2000 Okla. Sess. Laws c. 349, § 4 (eff. Nov. 1, 2000). 77 Wallace v. State, 905 N.E.2d 371, 380 (Ind. 2009) (essentially quoting, without citation, Justice Ginsburg's dissent in Smith v. Doe, 538 U.S. 84, 115, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (Ginsburg, J., dissenting). 78 Wallace at 380; See also Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997) (the court found "sex offenders have suffered harm in the aftermath of public dissemination-ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson."). 79 Smith v. Doe, 538 U.S. 84, 111, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (Stevens, J., dissenting). 80 Smith, 538 U.S. at 109 (Souter, J., concurring in the judgment). 81 Doe v. State, 189 P.3d 999, 1010-1011, nn. 81 and 85 (Alaska 2008); Neighbor Convicted of Stalking Sex Offender, Akron Beacon Journal, Dec. 13, 2007, available at EBSCO, 2W62W62425089428 (vigilantism); John R. Ellement & Suzanne Smalley, Sex Crime Disclosure Questioned: Maine Killings Refuel Debate Over Registries, Boston Globe, Apr. 18, 2006, at A1, available at 2006 WLNR 6463014 (vigilantism); Kira Millage, Killer of 2 Sex Offenders Pleads Guilty, Bellingham Herald (Wash.), Mar. 10, 2006, at 1A, available at 2006 WLNR 5238375 (vigilantism); Carolyn Starks & Jeff Long, Abuser Killed Self, Family Says, Chicago Trib., May 27, 2005, at 1, available at 2005 WLNR 23429797 (suicide); Cara Buckley, Town Torn Over Molester's Suicide, Miami Herald, Apr. 23, 2005, at 1A, available at 2005 WLNR 23022255 (suicide); Brian MacQuarrie, Man Defends Attacks on Sex Offenders, Crusader Gets Jail Term, Boston Globe, Dec. 5, 2004, at A1, available at 2004 WLNR 13142566 (vigilantism); see also Richard Tewksbury, Collateral Consequences of Sex Offender Registration, 21 J. Contemp. Crim. Just. 67, 75 (2005) (noting that in a study of 121 registered sex offenders in Kentucky, 47 percent reported being harassed in person, 16.2 percent reported being assaulted, 28.2 percent reported receiving harassing or threatening telephone calls, and 24.8 percent reported receiving harassing or threatening mail as a result of being listed on publicly accessible registries); Alvin Malesky & Jeanmarie Keim, Mental Health Professionals' Perspectives on Sex Offender Registry Web Sites, 13 Sexual Abuse: J. Res. & Treatment 53, 59 (2001) (reporting that in a study of 133 mental health professionals who work with sex offenders, 62.9 percent of respondents believed that sex offenders listed in public sex offender registry websites will become targets of vigilantism in the community); See, e.g., Jan Hollingsworth, Protesters Hound Owner of Pet Shop, Tampa Trib., Jan. 27, 2008, available at EBSCO, 2W62W62852777149 (describing community protests that forced registered sex offender to close his business); Corey Kilgannon, Threats of Violence as Homes for Sex Offenders Cluster in Suffolk, N.Y. Times, Oct. 9, 2006, at B1, available at 2006 WLNR 17438262 (recounting neighborhood's efforts to drive out registrants); Emily Ramshaw, 'Sex Offender' Label Makes No Distinction: For Many Men, Registry Has Lasting and Devastating Effects, Dallas Morning News, Oct. 2, 2006, available at EBSCO, 2W62W61689001016 (stating that registrant has lost multiple jobs after employers learned he was on sex offender registry); Carolyn Marshall, Taking the Law into their Own Hands, N.Y. Times, Apr. 20, 2004, at A12, available at 2004 WLNR 4787938 (describing how residents put pressure on landlords to refuse housing to registered offenders); see also Tewksbury, supra note 81, at 75 (noting that 42.7 percent of respondents reported loss of job and 45.3 percent of respondents reported loss or denial of place to live after being listed on publicly accessible registries); Richard G. Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Managing High Risk Criminals or Exacting Further Vengeance?, 18 Behav. Sci. & LawW 375, 381 (2000) (describing a study consisting of face-to-face interviews with thirty sex offenders throughout Wisconsin subject to various forms of community notification, and noting that 83 percent of respondents reported exclusion of residence and 57 percent reported loss of employment as a direct result of notification). 82 Smith v. Doe, 538 U.S. 84, 97-98, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). 83 Smith 538 U.S. at 98. 84 Id. 85 Title 47 O.S. 2011, § 6-111 (D). 86 The scarlet letter was a means of punishment which required a person to permanently display the letter "A" for the crime of adultery described by author Nathaniel Hawthorne in his book The Scarlet Letter. 87 OK AG Opinion 2005-11. 88 Commonwealth v. Baker, 295 S.W.3d 437, 444 (Ky. 2009). 89 Id. 90 Scienter is defined as "[a] degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; . . . ." SCIENTER, Black's Law Dictionary (9th ed. 2009). 91 Reid v. State, 1955 OK CR 106, ¶43, 290 P.2d 775, 784. 92 State v. Letalien, 2009 ME 130, ¶44, 985 A.2d 4, 21 (finding that because the obligation to register under Maine's version of SORA was not always triggered by a finding of scienter, this factor supported their registry scheme as being non-punitive); Doe v. State, 189 P.3d 999, 1012-1013 (Alaska 2008) (finding the obligations of Alaska's SORA were not imposed solely upon a finding of scienter but a majority of triggering crimes required scienter and therefore this factor weakly implies a punitive effect but would only receive little weight in their analysis). 93 Smith v. Doe, 538 U.S. 84, 102, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). 94 Title 57 O.S. Supp. 2004, § 583; 2004 Okla. Sess. Laws. c. 162, § 1. 95 Title 57 O.S. Supp. 2008, § 582.5; 2008 Okla. Sess. Laws c. 94, § 1. 96 Commonwealth v. Baker, 295 S.W.3d 437, 444 (Ky. 2009). 97 Title 57 O.S. 2011, § 583 (E), added by 2007 Okla. Sess. Laws c. 261, § 27 (eff. Nov. 1, 2007). 98 Title 57 O.S. 2011, § 590.2, added by 2009 Okla. Sess. Laws c. 404, § 8 (eff. Nov. 1, 2009). 99 Title 57 O.S. Supp. 1997, § 581 (B). 100 See Doe v. State, 189 P.3d 999, 1016 (Alaska 2008). 101 Title 57 O.S. Supp. 2004, § 583; 2004 Okla. Sess. Laws. c. 162, § 1. 102 Title 57 O.S. Supp. 2008, § 582.5; 2008 Okla. Sess. Laws c. 94, § 1. 103 Title 57 O.S. Supp. 2009, § 582.5 (D), amended by 2009 Okla. Sess. Laws c. 404 § 4 (eff. Nov. 1, 2009). This amendment removed the ability of a court to reduce a risk level assigned to an offender. Starkey filed his Petition in August 2009 to override his level assignment prior to this amendment. 104 Okla. Const. art. 2, § 15. 105 Title 57 O.S. Supp. 1997, § 583 (B) was in effect throughout 1998. It states as follows: "B. Any person who has been convicted of an offense on or after November 1, 1989, in another jurisdiction . . . shall register as follows: 1. With the Department of Corrections when the person enters and intends to be in the state for thirty (30) days or longer." WINCHESTER, J., dissenting: ¶1 The majority states their opinion does not balance "the rights of sex offenders against the rights of the offenders' victims." Yet, according to the Department of Corrections, Appellants, today's decision will affect a number of offenders in the State and will defeat the Act's very purpose which is the protection of victims, and the public at large, from the very real danger of recidivism.1 The majority opinion also conflicts with the opinion of the United States Supreme Court in Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), wherein the Court addressed the retroactive application of Alaska's sex offender registry and found the registry did not violate the Ex Post Facto Clause.2 ¶2 The Oklahoma Sex Offenders Registration Act (OSORA), 57 O.S.2011, §§ 581, et seq., was originally enacted in 1989 and approved unanimously by both the House and the Senate. Oklahoma is not alone in passing legislation that responds to the public safety threat of sex offender recidivism. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which conditions federal funding to assist law enforcement on the States' adoption of established guidelines for state sex offender registration programs. By 1996, legislators in every state had enacted laws to regulate sex offenders after their release, more commonly known as Megan's Laws.3 See Smith v. Doe, 538 U.S. at 89, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003). OSORA forms one small piece of a nationwide comprehensive regulatory program.4 ¶3 The United States Supreme Court first addressed the validity of the retroactivity of a state's sex offender registry requirements, the very issue on appeal herein, in Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). The Smith Court provided the analytical framework for determining whether a sex offender registration law imposes retroactive punishment in violation of ex post facto laws. The Court held that because the Alaska law at issue was nonpunitive, its retroactive application did not violate the Ex Post Facto Clause. Smith, 538 U.S. at 105-106. ¶4 To evaluate a statute's constitutionality under the Ex Post Facto Clause, the first determination a court must make is whether the statutory scheme in question was intended to be civil or criminal in nature. Smith, 538 U.S. at 92. If the intent was to make the statute a criminal punishment, that ends the inquiry and the statute will be deemed to violate the ex post facto laws. Id. As stated previously, the Legislature has provided that the civil objective of the Act is to protect the public from harm.5 57 O.S.2011, § 581(B). This stated purpose plainly indicates the intent of the Legislature to establish a civil regulatory scheme rather than a punishment. ¶5 Because the Legislature intended OSORA to operate as a civil regulatory system, the next step according to the Smith Court is to examine whether the statutory scheme is so punitive, either in purpose or effect, as to negate the State's intention to deem it civil. Smith, 538 U.S. at 105-106. "[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (Emphasis added). ¶6 In determining whether the effects of the Alaska sex offender registry were punitive, the Smith Court utilized a multi-factor test first set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). Smith, 538 U.S. at 97. Recognizing that the factors were not an exhaustive list, the Court found that the five "guideposts" most relevant to its analysis were whether the scheme: (1) "has been regarded in our history and traditions as punishment;" (2) "imposes an affirmative disability or restraint;" (3) "promotes the aims of punishment;" (4) "has a rational connection to a nonpunitive purpose;" or (5) "is excessive with respect to this purpose." Smith, 538 U.S. at 97. ¶7 Using this analysis, Division III of the Oklahoma Court of Civil Appeals, the Oklahoma Attorney General's office, the Oklahoma Court of Criminal Appeals, and the 10th Circuit have all6 found that OSORA's retroactive application does not violate any ex post facto laws.7 I agree and address each factor in turn. A. Historical Punishment ¶8 In Smith, the Supreme Court considered Alaska's statute in light of the colonial punishments of public shaming, humiliation, and banishment, and concluded that the dissemination of truthful information in furtherance of a legitimate governmental objective could not be considered punishment. Smith, 538 U.S. at 97-98. The use of the Internet to disseminate sex offender registrant information did not alter the Supreme Court's conclusion. Smith, 538 U.S. at 99. Moreover, any consequences to the offender from such dissemination flow not from the registration but from the fact of conviction, a matter already of public record. The Court found that the rationale behind notification is "to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation." Id. ¶9 Regulatory schemes such as OSORA are of recent origin and, like the Supreme Court found in Smith, are not among traditional punishments. Smith, 538 U.S. at 97. OSORA does not hold sex offenders up to the public for ridicule. Rather, it provides for the dissemination of truthful information in furtherance of a legitimate governmental objective. ¶10 Authority to make policy decisions for reasons of public safety and public welfare has long rested with the Legislature and the courts are without authority to strike down a statute merely because it might not comport with its own notions of prudent public policy. Yocum v. Greenbriar Nursing Home, 2005 OK 27, 130 P.3d 213. Here, the Oklahoma Legislature adopted amendments to OSORA in accordance with federal legislation, which has been repeatedly upheld as nonpunitive, in an effort to create a national uniform sex offender registration. OSORA's provisions do not resemble traditional punishment and, as such, do not affect the Act's civil status. B. Affirmative Disability or Restraint ¶11 To determine whether the restriction imposes an affirmative disability or restraint, a reviewing court must consider how the effects of the statute in question are felt by those subject to it. Smith, 538 U.S. at 99-100. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive. Smith, 538 U.S. at 100. While the act of registering may cause some inconvenience for offenders, it in no way restrains or disables them. Mere inconvenience does not suffice to make this factor punitive. In reaching its decision, the Smith Court expressly rejected the Ninth Circuit Court of Appeals' conclusion that the restraint of the registration system is parallel to that associated with a term of probation or supervised release that implicate Ex Post Facto clause concerns. Smith, 538 U.S. at 101. ¶12 Further, although OSORA's amendments restrict persons subject to OSORA from living in certain areas or working certain jobs, it does not otherwise restrict the movement and activities of such persons.8 Offenders remain free to change jobs or move residences within town, out of town or even out of state. Again, any negative consequences to registrants' employment or housing prospects arise from the fact of conviction, not the existence of the registry. Smith, 538 U.S. at 101. It is unclear if such negative consequences would be the result of the registration or if the same result would have been reached through other means, such as routine background checks. Smith, 538 U.S. at 100. It is also important to note that many of the "restraints" identified by Starkey, such as having the words "sex offender" placed on the driver's license of certain sex offenders, as required by 47 O.S.2011, §6-111(D)(1), do not originate in OSORA. That statute, like several others generally mentioned by offenders, is not a part of OSORA which is the specific Act challenged by Starkey. ¶13 Significantly, the registration and notification provisions of OSORA are far less restrictive and burdensome than the commitment statute approved by the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). In Hendricks, the Supreme Court determined that a statute that allowed the state to involuntarily commit certain sex offenders was not a violation of the Ex Post Facto Clause. The Court found that restricting the freedom of those deemed dangerous to society has historically been regarded as "a legitimate nonpunitive governmental objective." Kansas v. Hendricks, 521 U.S. 346, 363, 117 S. Ct. 2072, 2083, 138 L. Ed. 2d 501, 516 (1997). ¶14 The Ex Post Facto Clause does not prohibit increased burdens, only increased punishments. The alleged "burdens" placed on sex offenders under the Act are the unfortunate consequence of the crime for which they were convicted and not an increased punishment. Although the restraints imposed by OSORA are not insignificant, their weight alone is insufficient to create a punitive effect from the Act's nonpunitive purpose. C. Promotes the Traditional Aims of Punishment ¶15 The third factor addresses whether OSORA promotes the traditional aims of punishment, those of deterrence and retribution. Smith, 538 U.S. at 102. Finding that deterrence alone does not make a statute punitive, the Smith Court reasoned that "[a]ny number of governmental programs might deter crime without imposing punishment," and "'to hold that the mere presence of a deterrent purpose renders such sanctions "criminal" … would severely undermine the Government's ability to engage in effective regulation." Id. ¶16 Starkey's argument that differentiating reporting requirements among levels of offenses demonstrates retributive intent was rejected by the Supreme Court in Smith. Smith, 538 U.S. at 102. The levels of risk assigned by OSORA are reasonably related to the danger of recidivism and consistent with the Act's regulatory objective. Id. To enforce the § 583 risk level amendment as suggested by Starkey, the DOC would be required to examine each sex offender's case on an individual basis to determine when they were convicted and what particular version of the statute existed at that time. Such an application would result in different registry terms for offenders convicted of the same crime depending on the date an offender was convicted, if in Oklahoma, or when the offender moved to Oklahoma, if convicted out-of-state. ¶17 While the Legislature could have instituted an individualized risk assessment of the danger posed by a sex offender, no constitutional mandate exists requiring the use of such measures. Smith, 538 U.S. at 104 (the decision "to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment.") ¶18 A federal district court in Oklahoma has addressed, and rejected, a similar argument from a sex offender. In Gautier v. Jones, Case No. CIV-08-445-C, 2009 WL 1444533 (W.D. Okla., May 20, 2009), the plaintiff contested the very same OSORA amendment, 57 O.S.2011, § 583 (C), which changed his registration period from ten years to life due to his new designation as a Tier III offender. The district court held that the plaintiff was not promised that his "registration terms would remain static." Gautier v. Jones, at *3. The court further recognized that "the Legislature has broad power to amend existing legislation and was free to alter the statute's registration requirements at any time. Id., citing Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶ 22, 184 P.3d 546, 553. The Gautier court went on to find that the retroactive application of the OSORA amendment did not violate the Ex Post Facto Clause. Gautier v. Jones, at *9. ¶19 To deny the amendment's retroactivity will, according to the DOC, require the removal of offenders from the registry, a result that would substantially thwart the very purpose of the Act which is public safety. Because OSORA's purpose is the protection of the public, it reasonably follows that the Act does not significantly promote either retribution or deterrence. D. Rational Connection to a Nonpunitive Purpose ¶20 The Smith Court found that whether the challenged regulation is rationally connected to a nonpunitive purpose is a "most significant factor" in the effects prong of the test. Smith, 538 U.S. at 102. The Court, finding that the statute need not be "narrowly drawn" to pass muster, specifically held that the interest in "alerting the public to the risk of sex offenders in their community" constitutes a "legitimate non-punitive purpose." Smith, 538 U.S. at 102-103. A "statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance." Smith, 538 U.S. at 103. ¶21 The Legislature's goal in enacting OSORA was to protect the public from the danger of recidivism, a known high risk among sex offenders. The restrictions set forth in OSORA could reasonably be said to advance this goal. Starkey has proffered no evidence to refute the legitimate public safety interest in monitoring sex offender presence in the community. Accordingly, this factor does not render the Act punitive. E. Excessiveness in Relation to Nonpunitive Purpose ¶22 The final factor concerns whether the provisions of OSORA are excessive in relation to its previously determined, nonpunitive purpose. As the United States Supreme Court has noted, the excessiveness inquiry of ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. Smith, 538 U.S. at 105. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. Smith, 538 U.S. at 105. ¶23 In Smith, the U.S. Supreme Court concluded that individual risk assessment was unnecessary for sex offender registration requirements, and that "[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause." Smith, 538 U.S. at 104. "The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that convictions of specified crimes should entail particular regulatory consequences." Smith, 538 U.S. at 103. ¶24 There are, no doubt, some cases where a sex offender has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, the role of this Court is not to review the merits or wisdom of the Legislature's decisions on matters of public policy. The fact that restrictions on the registrants may be difficult and cumbersome is insufficient to make them unconstitutional. ¶25 Nothing in the record before us indicates that OSORA's regulatory scheme is anything other than reasonable in light of the nonpunitive objective of keeping the public safe from convicted sex offenders. Starkey has not established the "clearest proof" that the limitations in Oklahoma's sex offender registry act are excessive in relation to the Act's legitimate, regulatory purpose. F. Conclusion ¶26 Having considered the relevant ex post facto factors, I find that OSORA is a nonpunitive, civil regulatory scheme that can be applied retroactively.9 The registration and notification provisions of OSORA do not violate the Ex Post Facto Clause because the provisions serve the legitimate, remedial purpose of protecting the public. ¶27 An overwhelming majority of courts across the country agree.10 Reliance on a small minority of courts and/or dissenting opinions provides little justification to overturn the Legislature's will. Therefore, I respectfully dissent. FOOTNOTES 1 Section 581 of OSORA, as amended, provides in pertinent part: B. The Legislature finds that sex offenders who commit other predatory acts against children and persons who prey on others as a result of mental illness pose a high risk of re-offending after release from custody. The Legislature further finds that the privacy interest of persons adjudicated guilty of these crimes is less important than the state's interest in public safety. The Legislature additionally finds that a system of registration will permit law enforcement officials to identify and alert the public when necessary for protecting public safety. This stated purpose indicates the intent of the Legislature to establish a civil regulatory system rather than a criminal, punitive system. 2 The Ex Post Facto Clause applies only to statutes that are criminal or penal in nature and prohibits the passing of any law that (1) retroactively imposes punishment for an act that was not punishable when committed, (2) retroactively increases the punishment for a crime after its commission, or (3) deprives one charged with a crime of a defense that was available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). 3 Megan's Law was inspired by the case of seven-year-old Megan Kanka, a New Jersey girl who was raped and killed by a known child molester who moved across the street from the family. 4 In 2006, the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act") was passed by the U. S. Congress to "protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims." Pub. L. 109-248 (codified as amended in scattered sections of 42 U.S.C.). Title I of the Walsh Act, entitled the Sex Offender Registration and Notification Act ("SORNA"), created a national sex offender registry law. According to the U.S. Attorney General, the purpose of SORNA was to "strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public, and to eliminate potential gaps and loopholes under the pre-existing standards by means of which sex offenders could attempt to evade registration requirements or the consequences of registration violations." "Applicability of the Sex Offender Registration and Notification Act," 72 Fed. Reg. 8894, 8895 (interim rule Feb. 28, 2007). See also United States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir.2011) (noting that SORNA was enacted based on Congress's "conclusion that existing sex offender registration and reporting requirements were too readily circumvented"); U.S. v. Carel, 668 F.3d 1211, 1213 (10th Cir. 2011) ("SORNA was enacted to succeed and enhance the registration requirements of the Wetterling Act, 'and to eliminate' a dangerous gap in the then-existing sex-offender-registration laws.") SORNA addresses the various tiers of sex offender status and also requires every jurisdiction to maintain a sex offender registry conforming to the requirements of SORNA. See 42 U.S.C. §§ 16911 and 16912. The federal standards established under the Walsh Act serve as the minimum standards for a jurisdiction's sex offender registration program to be in compliance with federal law. For those jurisdictions in compliance, federal funding is provided. States failing to establish a registration and notification system in accordance with SORNA risk losing the federal funding. United States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir.2011); 42 U.S.C. § 16925. OSORA was amended on November 1, 2007 to substantially comply with the Adam Walsh Act. The amendments required Oklahoma to develop a new risk assessment screening tool to determine the level of risk each offender poses by assigning points for various crimes. 57 O.S.2011, § 582.5(C). Each offender is now assigned a number of points based solely on the offense of conviction, which then constitutes the individual's risk level. Id. The duration requirement for registration is then determined by the level of classification assigned so that level one offenders must register for fifteen years, level two offenders must register for twenty-five years, and level three offenders, and those offenders classified as a habitual or aggravated sex offender, must register for life. Id. Section 582.5 was amended again on April 29, 2008, and expanded the applicability to sex offenders who were convicted outside the state, such as Plaintiff Starkey. 5 See supra, fn 1. 6 See, e.g., Freeman v. Henry, 2010 OK CIV APP 134, ¶ 11, 245 P.3d 1258 ("We therefore hold OSORA represents a civil regulatory scheme which does not violate the ex post facto proscriptions of either" the federal or state constitutions.); Oklahoma Attorney General Opinion No. 03-24 (OSORA is a civil, nonpunitive regulatory scheme); Oklahoma Attorney General Opinion No. 05-11 (OSORA's residency restriction may be applied retrospectively); Mendenhall v. State, Case No. F-2010-1100 (Sept. 30, 2011) (Oklahoma Court of Criminal Appeals) (unpublished summary opinion) (using ex post facto analysis, court determined that OSORA was civil and remedial in nature); Graham v. Henry, 2006 WL 2645130 (N.D. Okla. Sept. 14, 2006) (refusing to grant sex offender a preliminary injunction where he was unlikely to show that the residency restriction was punitive); Gautier v. Jones, 2009 WL 2591666 (W.D.Okla. May 20, 2009) (Because OSORA is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.), reversed, in part, on other grounds by Gautier v. Jones, 364 Fed.Appx. 422, 2010 WL 358098 (C.A.10 (Okla.), cert. denied Gautier v. Jones, 131 S. Ct. 159, 178 L. Ed. 2d 39 (2010). 7 The Oklahoma Constitution provides that "[n]o ... ex post facto law ... shall ever be passed." Oklahoma Constitution, Art. 2, § 15. The United States Constitution provides that "[n]o State shall ... pass any ... ex post facto Law ...." U.S. Const. art. I, § 10, cl. 1. Because the language in these clauses mirrors each other, we interpret the Ex Post Facto Clause in the Oklahoma Constitution consistent with federal Ex Post Facto Clause jurisprudence. Starkey has provided no authority to reflect that the constitution of Oklahoma provides any greater ex post facto law protection than that contained in the federal constitution. Further, the federal Sex Offender Registration and Notification Act, like Oklahoma's law, requires any sex offender who is residing in the State to register and applies to sex offenders convicted before the law's effective date. See United States v. Hinckley, 550 F.3d 926, 929 (10th Cir.2008) abrogated on other grounds by Reynolds v. United States, 565 U.S. at ----, 132 S. Ct. at 980; 57 O.S.2011, § 582. 8 Registered sex offenders may not live near schools, parks, playgrounds, or child care centers, nor may they work in schools, certain law enforcement capacities, or reside with other, non-family registered sex offenders. See, e.g., 57 O.S.2011, §§ 589, 590, and 590.1. 9 This opinion is limited to the facts of this case wherein Starkey is specifically challenging OSORA's application to him and the amendment lengthening the terms of his registration. Not before us today is the validity of a conviction for a violation to OSORA. 10 The majority of state courts addressing the issue have found that retroactive application of their respective sex offender registries to offenders with convictions that pre-date the statute's enactment is not punitive and/or does not violate the prohibition against ex post facto laws. See, e.g., Lee v. State, 895 So. 2d 1038 (Ala. Cr. App. 2004)(retroactive application of registry's residency requirement did not violate Ex Post Facto Clause); State v. Henry, 228 P.3d 900 (Ariz. App. 2010), review denied (Sept. 21, 2010)(court assumed legislature intended amendments to apply retroactively and did not violate ex post facto laws); Parkman v. Sex Offender Screening Comm., 307 S.W.3d 6 (Ark. 2009)(subsequent, stricter amendments to previously determined non-punitive registry did not violate Ex Post Facto Clause); People v. Castellanos, 982 P.2d 211 (Cal. 1999)(court rejected ex post facto challenge to sex offender registry finding registry does not constitute punishment); Jamison v. People, 988 P.2d 177 (Colo. App. 1999)(registration is remedial, not punitive, and does not unconstitutionally enhance punishment in violation of Ex Post Facto Clause); State v. Kelly, 770 A.2d 908 (Conn. 2001)(registry is a nonpunitive, statutory scheme that does not violate ex post facto laws); Smith v. State, 919 A.2d 539 (Del. 2006)(retroactive application of registry statute did not violate Ex Post Facto Clause); In re W.M., 851 A.2d 431 (D.C. 2004)(registry established civil, regulatory scheme that was neither punitive nor a violation of the Ex Post Facto Clause); Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000)(registry requirements do not constitute punishment in violation of Ex Post Facto Clause); Frazier v. State, 668 S.E.2d 646 (Ga. 2008)(statute criminalizing failure to register as sex offender did not violate prohibition against ex post facto laws as failure to register was felony entirely distinct from prior conviction for qualifying sex offense and did not increase punishment for the original offense); State v. Guidry, 96 P.3d 242 (Haw. 2004)(statutory scheme not so punitive as to negate regulatory purpose); Smith v. State, 203 P.3d 1221 (Idaho 2009)(effects of state registry are not punitive and do not violate ex post facto prohibition); People v. Malchow, 739 N.E.2d 433 (Ill. 2000)(upholding registry despite fact that it applied retroactively to offenders who committed crimes prior to enactment of registry); State v. Pickens, 558 N.W.2d 396 (Iowa 1997)(state supreme court found Iowa's registry nonpunitive and not in violate of Ex Post Facto Clause); State v. Cook, 187 P.3d 1283 (Kan. 2008)(statutory amendment to registry that increased punishment for failure to register as sex offender not an ex post facto violation); State v. Trosclair, 89 So. 3d 340 (La. 2012)(amendment to registry after sex offender's conviction, which increased supervision term from five years to life and contained stricter electronic monitoring and residency restrictions, was not impermissibly retroactive); People v. Pennington, 610 N.W.2d 608 (Mich. App. 2000)(registry is neither punitive nor violative of constitutional prohibitions against ex post facto laws); Garrison v. State, 950 So. 2d 990 (Miss. 2006)(retroactive application of nonpunitive, sex offender registry did not violate Ex Post Facto Clause); Doe. v. Phillips, 194 S.W.3d 833 (Mo. 2006)(state supreme court recognized that Missouri registry, although found to violate unique state constitutional ban on retrospective laws as applied to offenders convicted before statute's enactment, does not violate the Ex Post Facto Clause); State v. Mount, 78 P.3d 829 (Mont. 2003)(state sex offender registry was nonpunitive, civil statutory scheme that did not constitute prohibited ex post facto legislation); State v. Harris, 817 N.W.2d 258 (Neb. 2012)(state high court held that retroactive application of registry, and its amendments, did not violate prohibition against ex post facto laws); Nollette v. State, 46 P.3d 87 (Nev. 2002)(state sex offender registration scheme is civil, not penal, in nature and does not offend ex post facto proscriptions); State v. Costello, 643 A.2d 531 (N.H. 1994)(state registry was a nonpunitive, civil scheme and its retroactive application did not violate state or federal Ex Post Facto Clauses); ACLU of N.M. v. City of Albuquerque, 137 P.3d 1215 (N.M. App. 2006)(state registry is a civil, regulatory scheme that does not violate the Ex Post Facto Clause); People v. Szwalla, 61 A.D.3d 1289, 877 N.Y.S.2d 757 (N.Y.A.D.3 2009)(applying civil, sex offender registry to individuals who committed crimes prior to its enactment does not violate Ex Post Facto Clause); State v. Bowditch, 700 S.E.2d 1 (N.C. 2010)(state sex offender registry and monitoring program found to be a civil, regulatory scheme whose retroactive application does not violate state or federal Ex Post Facto Clauses); State v. Meador, 785 N.W.2d 886 (N.D. 2010)(amendment to nonpunitive, state sex offender registration statute does not violate constitutional prohibition against ex post facto laws); State v. MacNab, 51 P.3d 1249 (Or. 2002)(state sex offender registration was not a form of increased punishment prohibited by Ex Post Facto Clause); Com. v. Lee, 935 A.2d 865 (Pa. 2007)(lifetime registration, notification and counseling obligations imposed by state sex offender registry was nonpunitive and did not violate ex post facto laws); State v. Germane, 971 A.2d 555 (R.I. 2009)(registration requirement in state statute does not constitute criminal punishment for purposes of ex post facto analysis); State v. Walls, 558 S.E.2d 524 (S.C. 2002)(nonpunitive, state registry statutes did not violate Ex Post Facto Clause despite requiring offender to register for first time, twenty-five years after conviction); Meinders v. Weber, 604 N.W.2d 248 (S.D. 2000)(state sex offender registration laws were remedial, not punitive, for purposes of ex post facto analysis); Ward v. State, 315 S.W.3d 461 (Tenn. 2010)(state registration requirements are nonpunitive and do not violate Ex Post Facto Clause); Rodriguez v. State, 93 S.W.3d 60 (Tex. Cr. App. 2002)(state sex offender registry scheme is civil and remedial in nature and does not violate Ex Post Facto Clause); Kitze v. Com., 475 S.E.2d 830 (Va. App. 1996)(protecting the public and preventing crime are regulatory, nonpunitive goals of retroactive statute and, therefore, state registry does not violate ex post facto prohibitions); Fraser v. Sleeper, 933 A.2d 246 (Vt. 2007)(state sex offender registry statutes are remedial, rather than penal); State v. Ward, 869 P.2d 1062 (Wash. 1994)(Ex Post Facto Clause not violated because applying registry to convictions occurring before its enactment did not constitute punishment); Haislop v. Edgell, 593 S.E.2d 839 (W.Va. 2003)(state registry is regulatory and does not violate prohibition against ex post facto laws even though applied to persons convicted before its enactment); State v. Bolliq, 605 N.W.2d 199 (Wis. 2000)(remedial goal of protecting public outweighs any punitive effect of registration, including any infringement on rights of sex offenders); Snyder v. State, 912 P.2d 1127 (Wyo. 1996)(state registration of sex offenders for crimes prior to registry's enactment does not offend prohibition against ex post facto laws). But see Doe v. State, 189 P.3d 999 (AK 2008) (Alaska court found state sex offender registry too punitive to be applied retroactively). Other state courts in Indiana, Kentucky, Maine, Massachusetts, New Jersey, and Ohio, while generally finding their respective registries do not violate the Ex Post Facto Clause, have delivered differing opinions with respect to amendments to the registries. See, e.g., State v. Pollard, 908 N.E.2d 1145 (Ind. 2009)(court found retroactive residency restriction too punitive); Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011)(amendment to registry imposing lifetime requirements for "sexually violent predators" does not violate the Ex Post Facto Clause); Com. v. Baker, 295 S.W.3d 437 (Ky. 2009)(residency restriction too punitive when applied retroactively); Buck v. Com., 308 S.W.3d 661 (Ky. 2010)(retroactive amendments to registry do not violate ex post facto laws); State v. Haskell, 784 A.2d 4 (Me. 2001)(a law serving nonpunitive goals is not punishment for purposes of determining whether the law violates ex post facto prohibitions, even though it may bear harshly on those affected); State v. Letalien, 985 A.2d 4 (Me. 2009)(retroactive application of lifetime registration requirements and quarterly in-person verifications violated Ex Post Facto Clause); Opinion of the Justices to the Senate, 668 N.E.2d 738 (Mass. 1996)(state supreme court found that retroactive application of registry notification laws would not violate ex post facto laws); Com. v. Cory, 911 N.E.2d 187 (Mass. 2009)(retroactive amendment imposing strict GPS monitoring is in violation of ex post facto laws); Doe v. Poritz, 662 A.2d 367 (N.J. 1995)(court found that retroactive application of registry does not constitute punishment in violation of ex post facto prohibitions); Riley v. N.J. State Parole Bd., 32 A.3d 190 (N.J. Super. A.D. 2011) (lower appellate state court found amendment to previously-declared nonpunitive registry which requires retroactive GPS ankle monitoring to constitute excess punishment); State v. Cook, 700 N.E.2d 570 (Ohio 1998) (retroactive application of registry requirements are not punishment in violation of ex post facto laws); State v. Williams, 952 N.E.2d 1108 (Ohio 2011) (court found amendments to state registry had become too punitive). There is also unanimous consensus among the federal circuit courts that SORNA does not violate the Ex Post Facto Clause. See, e.g., U.S. v. Elkins, 683 F.3d 1039 (9th Cir. 2012); U.S. v. Felts, 674 F.3d 599, 606 (6th Cir.2012); U.S. v. DiTomasso, 621 F.3d 17, 25 (1st Cir.2010); U.S. v. Guzman, 591 F.3d 83, 94 (2d Cir.2010); U.S. v. Shenandoah, 595 F.3d 151, 158-159 (3d Cir.2010); U.S. v. Gould, 568 F.3d 459, 466 (4th Cir.2009); U.S. v. Young, 585 F.3d 199, 203-06 (5th Cir.2009); U.S. v. Ambert, 561 F.3d 1202, 1207 (11th Cir.2009); U.S. v. May, 535 F.3d 912, 919-20 (8th Cir.2008), abrogated on other grounds by Reynolds v. U.S., ---U.S. ----, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); U.S. v. Hinckley, 550 F.3d 926 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, ---U.S. ----, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012).

904f3b59-a146-4887-b7b8-beb10f00c9b3

Dowell v. Pletcher

oklahoma

Oklahoma Supreme Court

DOWELL v. PLETCHER2013 OK 50Case Number: 110774Decided: 06/25/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JERRY DOWELL, d/b/a JERRY DOWELL BAIL BONDING COMPANY, INTERNATIONAL FIDELITY INSURANCE COMPANY, ALLEGHENY CASUALTY COMPANY, AMERICAN SURETY COMPANY, ACCREDITED SURETY & CASUALTY COMPANY, INC. and LEXINGTON NATIONAL INSURANCE CORPORATION, Plaintiffs/Appellants, v. CURT PLETCHER d/b/a ACTION BAIL BONDS, Defendant/Appellee, v. THE COURT CLERK OF OKLAHOMA COUNTY, PATRICIA PRESLEY, Defendant. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HON. ROGER H. STUART ¶0 This is an interlocutory appeal from the trial court's denial of plaintiffs'/appellants' motion for temporary injunction to enjoin defendant/appellee from writing bonds in Oklahoma county in violation of the Ten Bond Rule. Pletcher argued that the rule has been held unconstitutional by the District Court of Sequoyah County. The trial court in this matter has not yet ruled on the issue of constitutionality of the statute. It was not an abuse of discretion to deny the temporary injunction before a trial on the merits to determine whether the statute is constitutional. AFFIRMED. Mark T. Hamby, P. Gae Widdows and Katherine R. Morelli, BONHAM & HOWARD, P.L.L.C., Tulsa, Oklahoma, for the appellants. Fourth Scofus, Sallisaw, Oklahoma and Sharon K. Weaver, RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS, INC., Tulsa, Oklahoma, for the appellee. EDMONDSON, J. ¶1 Appellants are a licensed bail bondsman and several insurance companies that issue bail bonds who complain that the defendant, Curt Pletcher, a registered professional bail bondsman in Tulsa County, is violating the Ten Bond Rule, 59 O.S. 2011 § 1320(B), of the Oklahoma Bail Bondsmen Act by using a surety bondsman to write more than ten bonds per year in Oklahoma County. The "Ten Bond Rule" provides, in pertinent part: No bail bondsman shall become a surety on any undertaking unless he has first registered his license in the office of the sheriff and with the clerk of the district court in the county in which the bondsman resides or offices, but not both . . . . Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license. ¶2 In Surety Bail Bondsmen v. Insurance Commissioner, 2010 OK 73, 243 P.3d 1177, 1185, this Court held that § 1320(B) limits a professional bondsman to writing bonds on no more than ten defendants a year in a county in which the professional bondsman is not registered and a bondsman cannot avoid the rule by delegating the power to a surety bondsman. The appellants maintain that Pletcher is violating Surety Bail Bondsmen by using a surety to write more than ten (10) bonds per year in Oklahoma County. They argue that after he has written bonds on ten defendants in one year, whether directly or through a surety bondsman, all bonds issued thereafter in Oklahoma County are illegal. The appellants sued Pletcher for damages for violations of the Deceptive Trade Practices Act, the Oklahoma Antitrust Reform Act and for engaging in unfair competition that has caused them to lose business. ¶3 Pletcher filed a motion to dismiss on the ground that the petition failed to state a claim because the Ten Bond Rule was held to be unconstitutional by District Judge Jeff Payton in Sequoyah County.1 Judge Payton enjoined the Insurance Commissioner from enforcing the Ten Bond Rule. Pletcher argues that because the statute has been declared unconstitutional and an injunction entered against the Insurance Commissioner, the Ten Bond Rule cannot be enforced against him.2 The appellants argue that the Sequoyah County case is not binding on the Oklahoma County District Court because it did not involve any of the same parties and the decision was not appealed. The trial judge denied Pletcher's motion to dismiss. ¶4 The appellants also sought temporary and permanent injunctions to enjoin Pletcher from continuing to write bonds in Oklahoma County in violation of the Ten Bond Rule, arguing that they are being irreparably harmed. The trial judge denied appellants' motion for temporary injunction and directed the parties to brief: 1) the constitutionality of 59 O.S. § 1320(B); 2) the effect of Judge Payton's ruling on his decision; and 3) whether the Insurance Commissioner is a necessary party to the action.3 Appellants appealed the order denying temporary injunction pursuant to Rule 1.60(c), Okla. Sup. Ct. Rules.4 We granted the appellants' motion to retain the appeal. Curt Pletcher filed a motion to dismiss the appeal and the motion is denied.5 ¶5 Matters involving the grant or denial of injunctive relief are of equitable concern. A judgment issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence. Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546. This Court will consider all the evidence on appeal to determine whether the trial court's denial of a temporary injunction was an abuse of discretion.6 ¶6 Injunction is an extraordinary remedy and relief by this means should not be granted lightly. Equity courts exercise discretionary power in granting or withholding extraordinary remedies, particularly where injunctive relief is sought, and its granting rests in the sound discretion of the court to be exercised in accordance with equitable principles and in light of all circumstances. Cloer v. Gillespie, 1963 OK 195, 386 P.2d 1015. ¶7 To obtain a preliminary injunction, a plaintiff must show that four factors weigh in his favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction relief if the injunction is denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest. Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, 251 P.3d 741. The right to injunctive relief must be established by clear and convincing evidence and the nature of the injury must not be nominal, theoretical or speculative. Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546. ¶8 Pletcher argues that appellants failed to show that they are entitled to injunctive relief because there is no evidence that he deprived any of the appellants from writing any bonds. The appellants contend that Pletcher's violation of the Ten Bond Rule "stole business from them" and that an injunction would mitigate their damages. Appellants argue that the status quo is in violation of this Court's opinion in Surety Bondsmen and should not be preserved. The trial judge took into account that the Commissioner's interpretation of the Ten Bond Rule prior to Surety Bondsmen had been followed for the majority of the lifetime of the rule and that the rule has since been declared unconstitutional by an Oklahoma district court. ¶9 The trial judge took the four factors into consideration before denying the request for a temporary injunction. He considered the irreparable harm to the appellants if the injunction were denied as well as the irreparable harm to Pletcher if the injunction were granted. Observing that it has been only for a short period of time that those in Pletcher's position have not been writing these bonds , the trial judge concluded that the economic impact on Pletcher would be more severe. ¶10 The trial judge referred to the likelihood of success on the merits as his most important consideration. While noting that Surety Bondsmen interpreted the Ten Bond Rule in appellants' favor, he also was faced with the statute having being declared unconstitutional by a judge who had the facts and evidence before him. He placed the likelihood of appellants' success on the merits as, at best, fifty percent. He stated: "So, on the issue of success on the merits, I mean, at best we're talking 50 percent. We certainly ain't getting further than that when I have another judge addressing that issue and finding that it's an unconstitutional statute." Tr. p. 28. ¶11 The trial court recognized that it is in the public interest to get the matter straightened out, but he did not believe that an injunction was the way to do so. He directed the parties to brief the constitutionality of the statute, the effect of Judge Payton's ruling and whether the Insurance Commissioner is a necessary party. He advised the parties that in order to consider constitutionality he wanted a record made for this Court's review. This reflects his intention to decide the issue of constitutionality of the Ten Bond Rule before determining the appropriateness of injunctive relief.7 ¶12 The issue of the constitutionality of the Ten Bond Rule is pending before the trial court. The trial judge has preserved the status quo pending his ruling on that issue, and at that time he can determine the appropriateness of an injunction. We find that the trial judge did not abuse his discretion in denying a temporary injunction to enforce the statute. AFFIRMED. ¶13 ALL JUSTICES CONCUR FOOTNOTES 1 Case No. CJ-2010-291 in the District Court of Sequoyah County, Rick L. Doherty v. Raymond L. Merrill d/b/a Merrill Bonding Company v. State of Oklahoma ex rel. Oklahoma Department of Insurance and Kim Holland, Oklahoma State Insurance Commissioner. By order entered March 8, 2011, the Hon. Jeff Payton held the Ten Bond Rule unconstitutional. The trial judge found that constitutionality of the Ten Bond Rule was neither presented nor decided in Surety Bondsmen. 2 He argues that the appellants lack standing because the Insurance Commissioner is the only authority for enforcement of the Ten Bond Rule and he has been permanently enjoined from enforcing it. 3 The Attorney General's office declined to participate in this case. The trial judge directed the parties to renotice the Attorney General's office and also to determine whether the Attorney General had represented the Insurance Commissioner in the Sequoyah County case. 4 Rule 1.60. Definition of interlocutory orders appealable by right. Orders of the district court that are interlocutory and may be appealed by right in compliance with the rules in this part are those that: *** (c) Deny a temporary injunction, grant a temporary injunction . . . . 5 Pletcher moved to dismiss the appeal, asserting that the appellants lacked standing to bring a private action for enforcement of the Bail Bondsmen Act. The appellants do not seek to enforce the Ten Bond Rule. They seek damages for tortious interference with their business. 6 The sole issue presented by the appeal is whether the trial court abused his discretion in denying the request for temporary injunction. The trial judge has not yet determined whether the statute is constitutional, whether Judge Payton's ruling is binding on him or whether the Insurance Commissioner is a necessary party. 7 The trial judge stated that the next step would be an evidentiary hearing or motion for summary judgment. He directed the parties to address whether facts are needed to make the decision on constitutionality, whether the decision can be based on existing law and, if so, what particular facts would be needed to make that determination. Tr. p. 33.

0bb9ea61-004f-40d5-b403-7497db9c36e8

Croslin v. Enerex, Inc.

oklahoma

Oklahoma Supreme Court

CROSLIN v. ENERLEX, INC.2013 OK 34Case Number: 109786Decided: 05/28/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHARLES D. CROSLIN, GLENN CROSLIN, and IRMA JEAN GOWIN, Plaintiffs/Appellees,v.ENERLEX, INC., Defendant/Appellant. ON WRIT OF CERTIORARI TO THECOURT OF CIVIL APPEALS, DIVISION III ¶0 Defendant/appellant offered to purchase plaintiffs'/appellees' mineral interest in Seminole County. At the time, plaintiffs/appellees did not know that they had inherited the mineral interest, that the mineral interest was included in a pooling order, or that proceeds had accrued under the pooling order. Defendant/appellant admitted it knew about the pooling order and the accrued proceeds but did not disclose these facts in making the offer. Plaintiffs/appellees signed the mineral deeds which defendant/appellant provided, and subsequently, they discovered the pooling order and the accrued proceeds. Plaintiffs/appellees filed suit against defendant/appellant in Seminole County for rescission and damages, alleging misrepresentation, deceit and fraud. The trial court, the Honorable Timothy Olsen, District Judge, presiding, entered summary judgment in favor of plaintiffs/appellees. The Court of Civil Appeals reversed the summary judgment. We previously granted certiorari review. OPINION OF THE COURT OF CIVIL APPEALS VACATED;SUMMARY JUDGMENT OF THE TRIAL COURT AFFIRMED. John L. Randolph, Jr., Tulsa, Oklahoma, for defendant/appellant.Matthew H. McBee, Poteau, Oklahoma, for plaintiffs/appellees. TAYLOR, J. ¶1 Charles D. Croslin,1 Glenn Croslin, and Irma Jean Gowin (plaintiffs) sued Enerlex, Inc. (defendant) seeking rescission of mineral deeds and tort damages. The dispositive issues on certiorari are: 1) whether the summary judgment record on appeal establishes that defendant owed the plaintiffs a duty to disclose the pooling order and the accrued mineral proceeds when it made an unsolicited offer to purchase their undivided mineral interest in Seminole County and provided the mineral deeds to be executed, and if so, 2) whether rescission of the mineral deeds is a remedy for defendant's breach of the disclosure duty. We hold the defendant owed a duty to disclose the accrued mineral proceeds to the plaintiffs when it offered to purchase the mineral interest and provided the mineral deeds conveying the mineral interest and assigning the accrued mineral proceeds, if any. We further hold rescission is an appropriate remedy in this case for the breach of defendant's disclosure duty. I. Facts and Procedural Background ¶2 The following facts are undisputed. W. M. Croslin owned a four net acre mineral interest in Seminole County, Oklahoma. W. M. Croslin died on September 24, 1994, survived by his wife, Goldie A. Croslin, and his children, the plaintiffs. W. M. Croslin's unleased mineral interest was included in an Oklahoma Corporation Commission pooling order in Cause CD No. 200002499-T, Order No. 442715, dated July 11, 2000. Goldie A. Croslin died on November 30, 2005, survived by her children, the plaintiffs. In early 2008, nearly $10,000.00 had accrued from the production of the unleased mineral interest under the pooling order and had been reported and transmitted to the State of Oklahoma for the benefit of W. M. Croslin pursuant to the statutory custodial taking of proceeds from pooled mineral interests owned by unknown or unlocated persons. 52 O.S.2001, §§ 551, et seq. The plaintiffs are the heirs of W. M. Croslin, deceased, and Goldie A. Croslin, deceased. ¶3 Defendant is in the business of buying mineral interests. In March of 2008, defendant made unsolicited offers to the plaintiffs to buy their Seminole County mineral interest. When it made the offers, defendant knew that the mineral interest was included in an Oklahoma Corporation Commission pooling order; that the pooling order listed W. M. Croslin as a party with an unknown address; that the pooling order allowed W. M. Croslin a $75.00 per acre bonus and a 1/8th royalty; and that $9,961.71 had been reported and transmitted for the benefit of W. M. Croslin to the Oklahoma Corporation Commission pursuant to the pooling order and 52 O.S.2001, § 552.2 ¶4 Defendant sent an offer letter to each plaintiff dated March 21, 2008, advising that it was "purchasing mineral interests in Seminole County, Oklahoma" and that "we believe you own" a mineral interest in Seminole County. The letter also advised that two bank drafts totaling $1,350.00,3 a mineral deed, and a self-addressed envelope were enclosed; that "when the Mineral Deed has been received by our office, we will begin our title examination"; and that the drafts will "be paid upon completion of the title examination." In making the offers, defendant did not disclose to any of the plaintiffs the existence of the pooling order or the accrued mineral proceeds held by the State Treasurer. ¶5 The granting clause in defendant's mineral deed conveyed, transferred, assigned, and delivered the "interest in and to all of the Oil, Gas, and any other classification of valuable substance . . . in and under and that may be produced from the following described lands. . . ." (Bold added.) The language that followed the granting clause explained its meaning: it being understood and agreed that this transfer and assignment covers and includes that the grantee shall have, receive, and enjoy the herein granted undivided interests in and to all royalties, accruals and other benefits, if any, from all Oil and Gas heretofore or hereafter run, whether they be held therefore by any purchaser or other legal entity, or hereafter produced, sold and paid to the Grantee. The Grantor hereby irrevocably appoints and constitutes the Grantee as agent and attorney-in-fact for the limited purpose only of executing division and transfer orders and all other instruments necessary to make fully effective this assignment and conveyance so that the Grantee may act in Grantor's place and stead for such purpose.(Bold added.) Without knowledge of the pooling order or the accrued mineral proceeds held by the State Treasurer for the benefit of W. M. Croslin, plaintiffs executed defendant's mineral deeds on March 31, 2008.4 ¶6 Subsequently, plaintiffs discovered the pooling order and the accrued mineral proceeds, and on October 23, 2009, they filed suit against defendant. In addition to the above undisputed facts, plaintiffs alleged that defendant had a duty to inform them of the pooling order, the accrued mineral proceeds, and the production; that defendant's failure to inform them constituted constructive fraud; and that defendant's deceitful and fraudulent actions amount to fraud and justifies rescission, consequential damages, actual damages, and punitive damages. Defendant answered and counter-claimed that it was the rightful owner of the mineral interests and that the plaintiffs filed suit in bad faith and slandered the title of the mineral interest. ¶7 Plaintiffs moved for summary judgment. The trial court granted partial summary judgment in favor of plaintiffs on the false representation claim and ordered an accounting of royalty proceeds paid to defendant, leaving other issues unresolved. The parties agreed to the accounting and waived all other claims and issues for purposes of summary judgment, and the trial court entered the summary judgment order on appeal. The trial court concluded that: 1) a mineral interest purchaser has the duty to disclose production and failure to do so is a false representation, citing Deardorf v. Rosenbusch, 1949 OK 117, 206 P.2d 996; 2) a seller's constructive knowledge of production is not a defense to fraudulent misrepresentation, citing Uptegraft v. Dome Petroleum Corp., 1988 OK 129, 764 P.2d 1350; and 3) the unclaimed property statutes and regulations place additional notice requirements upon one who claims funds in the Mineral Owners Escrow Fund based upon the transfer of a mineral interest. The trial court granted plaintiffs' claim for rescission and cancelled the mineral deeds, declared plaintiffs to be the rightful owners of the mineral interest, and directed plaintiffs to return the purchase money defendant paid them less any royalty proceeds that may have been paid to defendant. ¶8 Defendant appealed. The Court of Civil Appeals reversed the summary judgment finding that defendant made no factual inducement, representation or misrepresentation that gave rise to a duty to disclose the pooled mineral interest or production and that defendant had no duty to disclose the pooled mineral interest and accrued mineral proceeds to the plaintiffs under the unclaimed property statutes or the pooled mineral interests statutes. We previously granted plaintiffs' petition for certiorari review to resolve the conflict between the Court of Civil Appeals opinion herein and two other opinions by the Court of Civil Appeals.5 II. Standard of Review ¶9 Plaintiffs based their equitable claim of constructive fraud and rescission of the mineral deeds and their tort claim of deceit and fraud and damages on one set of undisputed facts. Plaintiffs contended the undisputed facts clearly showed the defendant misrepresented material facts, the misrepresentation gave rise to a legal obligation to disclose all material facts about the mineral interest, and defendant's failure to disclose all material facts constituted deceit and fraud and constructive fraud. At issue is the trial court's legal conclusion drawn from the undisputed facts that the mineral interest purchaser had a duty to disclose production to the mineral interest owners. This question as to the legal effect of the undisputed facts challenges plaintiffs' entitlement to summary judgment as a matter of law on the constructive fraud claim. D-Mil Production, Inc. v. DKMT, Co., 2011 OK 55, ¶12, 260 P.3d 1262, 1267. The summary judgment resolved questions of law which we review de novo, without deference to the trial court. Young v. Macy, 2001 OK 4, ¶9, 21 P.3d 44, 47. ¶10 The trial court's grant of plaintiffs' claim for rescission and cancellation of the mineral deed is governed by principles of equity. Goldsby v. Juricek, 1965 OK 403 P.2d 454, 456. Equity will cancel a deed where it is clear that an alleged false representation deceived the complainant and caused injury. Mobil Oil Corporation v. Flag-Redfern Oil Co., 1973 OK CIV APP 5, 522 P.2d 651 (Approved for publication by the Supreme Court). On appellate review, the decision of a court in equity will not be reversed unless it is clearly against the weight of the evidence. Smith v. Marshall Oil Corp., 2004 OK 10, 85 P.3d 830. III. Fraud and the Disclosure Duty ¶11 This Court has often said that fraud is a generic term embracing the multifarious means which human ingenuity can devise so one can get advantage over another by false suggestion or suppression of the truth. Morris v. McLendon, 1933 OK 619, ¶8, 27 P.2d 811, 812; Johnson v. McDonald, 1934 OK 743, 39 P.2d 150; Singleton v. LePak, 1967 OK 37, ¶13, 425 P.2d 974, 978. When fraud is alleged, every fact or circumstance from which a legal inference of fraud may be drawn is admissible. Berry v. Stevens, 1934 OK 167, ¶16, 31 P.2d 950, 955; Silk v. Phillips Petroleum Co., 1988 OK 93, ¶33, 760 P.2d 174, 179. ¶12 Actual fraud6 is the intentional misrepresentation or concealment of a material fact, with an intent to deceive, which substantially affects another person, while constructive fraud7 is a breach of a legal or equitable duty to the detriment of another, which does not necessarily involve any moral guilt, intent to deceive, or actual dishonesty of purpose. Morris v. McLendon, 1933 OK 619, 27 P.2d 811; Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, ¶4, 602 P.2d 203, 206. The issue of fraud is generally an question of fact. Morris v. McLendon, 1933 OK 619 at ¶10, 27 P.2d at 812. Although actual fraud must be proved at law,8 in equity it suffices to show facts and circumstances from which it may be inferred. Bloch v. Morgan, 1926 OK 163, 244 P. 176; Singleton v. LePak, 1967 OK 37 at ¶13, 425 P.2d at 978. Constructive fraud has the same legal consequence as actual fraud. Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142 at ¶4, 602 P.2d at 206. Constructive fraud 1) may be based on a negligent misrepresentation or an innocent misrepresentation where there is an underlying right to be correctly informed of the facts, 2) may be based on the silence by one who has a duty to speak, or 3) may be invoked to prevent harm or to extend protection to recognized public interests. Id. at ¶4 and n. 6. ¶13 Here, the trial court determined defendant was guilty of constructive fraud when it granted plaintiffs' plea for rescission and canceled the mineral deeds based on its legal conclusion that defendant owed plaintiffs a duty to disclose production and the failure to do so was a false misrepresentation, citing Deardorf v. Rosenbusch, 1949 OK 117, 206 P.2d 996. Plaintiffs' petition for writ of certiorari argued that the Court of Civil Appeals failed to follow Deardorf. ¶14 In Deardorf, Ms. Rosenbusch, residing in the Washington D.C. area, invested $350.00 in a non-producing one mineral acre in Oklahoma in 1934. In 1944 there was a producing well on the premises and Deardorf made an unsolicited written offer to buy Rosenbusch's mineral interest for $10.00. Deardorf's offer explained that he was trying to clear title to the farm for a client. Deardorf knew there was production but did not disclose that fact to Rosenbusch. Rosenbusch, eighty years of age and with little oil and gas experience, responded to Deardorf that the offer was so little for her $350.00 investment; however, she signed the quitclaim deed that Deardorf sent her and returned it for the $10.00 offer. Subsequently, a remote grantee sued Rosenbusch in a quiet title action. Rosenbusch filed a cross petition against Deardorf alleging fraud and seeking recovery of the reasonable value of the mineral interest. ¶15 The Deardorf opinion found that the offer to buy the mineral interest, as a whole, was fraudulent because it created a false impression that there was no production of minerals from the land: In the opinion of this court, to confirm as true another's false impression concerning a material fact is no less a false representation of such fact than if made directly in order to create the false impression. The fact that there was production was the moving cause of defendant's seeking the conveyance. The absence of plaintiff's knowledge of the production was relied on as an inducement to plaintiff's executing the conveyance for a nominal consideration. There is no need to weigh the value of each of the several statements in the letter when it is manifest that the letter as a whole is expressive of a scheme to capitalize on the ignorance of another. 1949 OK 117 at ¶6, 206 P.2d at 998. Guided by Berry v. Stevens, 1934 OK 167, 31 P.2d 950, Deardorf determined that defendant's duty to disclose the truth arose at the beginning of the negotiations and that defendant failed to disclose the truth. Instead of disclosing the truth of there being production the same was sought to be concealed from the plaintiff by indirectly if not directly creating the belief if it did not exist, or confirming as true, if it did exist, plaintiff's belief that the land was nonproductive. The holding of the trial court that the deed was obtained by fraud finds full support in the evidence. 1949 OK 117 at ¶9, 206 P.2d at 998. ¶16 The principles set out in the Deardorf opinion are: 1) where there is no duty to speak, if a person undertakes to speak, he or she must disclose all known facts; 2) where the speaker is under a duty to say nothing or to tell the whole truth, a duty to tell the whole truth may arise from partial disclosure; and 3) one conveying a false impression by disclosing some facts and concealing others is guilty of fraud, even though the statement is true as far as it goes, the concealment is in effect a false representation that what is disclosed is the whole truth. 1949 OK 117, 206 P.2d 996, Syllabus by the Court. ¶17 The Deardorf principles had been pronounced in earlier jurisprudence. Although a party may keep absolute silence and violate no rule of law or equity, and yet, if he or she volunteers to speak and to convey information which may influence the conduct of the other party, he or she is bound to disclose the whole truth. Berry v. Stevens, 1934 OK 167, 31 P.2d 950, Syllabus, No. 6. Although a party has no duty to speak, if he or she undertakes to speak, he or she must tell the truth and not suppress known facts as half truths calculated to deceive and representations literally true but used to create a false impression are false representations. Id. at Syllabus, No.7. A fiduciary relationship imposes an absolute duty to fully disclose all material facts, Barry v. Orahood, 1942 OK 419, ¶14, 132 P.2d 645, 647; and, where there is no fiduciary relationship, a legal or equitable duty to disclose all material facts may arise out of the situation of the parties, the nature of the subject matter of the contract, or the particular circumstances surrounding the transaction. Id. at ¶10, 132 P.2d at 647. Where the peculiar circumstances give rise to a duty on the part of one of the parties to a contract to disclose material facts and the party remains silent to his or her benefit and to the other party's detriment, the failure to speak constitutes fraud. Morris v. McLendon, 1933 OK 619, 27 P.2d 811, Syllabus, No. 2. ¶18 A review of the facts and circumstances in a few of this Court's constructive fraud cases involving production of minerals demonstrates the great variety of facts that may give rise to a duty to disclose material facts. In the Berry v. Stevens case, Berry owned an undivided 2/5 interest in 190 acres of land in Caddo County. Berry moved to Craig County and asked Stevens, a real estate agent in Caddo County, to help him sell his Caddo County property for $2,500.00. Berry knew there was production in the vicinity of his Caddo County land, but, having moved to Craig County two years earlier, he did not know of a recent deep well that was producing 1,000 barrels per day. Stevens and his son-in-law, who posed as a prospective buyer of real estate in Craig County, visited Berry in Craig County. Berry agreed to sell his Caddo County land interest for $2,200.00 but did not know that Stevens and two others were the purchasers until Stevens presented the deed to Berry. Berry signed the deed and two days later he learned of the new deep well and filed suit to rescind and cancel the deed. Concluding that half truths calculated to deceive and representations literally true but used to create false impressions are actionable, the Berry opinion reversed the trial court's order refusing to rescind and cancel the deed and remanded the case for new trial. ¶19 In another case, Varn v. Maloney, 1973 OK 133, 516 P.2d 1328, the operator exaggerated the mineral production to the operating agreement participants. After quoting the principle that a duty to speak may arise from partial disclosure from the Deardorf opinion, the Varn opinion concluded: After a careful consideration of the entire record before us, we are forced to the conclusion that Varn's unqualified statements that "We are working . . . on a sandbar development that has already proven its merit" and that "Risk is minimal * * *" were false statements of material facts which, under the circumstances, amounted to fraud as defined above. We also conclude that his failure to mention the gas cap and the possible necessity of filling it with water before flood effect would occur, as indicated by the "experience record of Shell" which was common knowledge in the area and the failure to mention the unplugged wells in the immediate area which permitted loss of water and pressure, amounted to a concealment of material facts, which he was bound under the circumstances to disclose. . . . 1973 OK 133 at ¶19, 516 P.2d at 1332. ¶20 In another case involving several leases, Uptegraft v. Dome Petroleum Co., 1988 OK 129, 764 P.2d 1350, the plaintiffs sought rescission of a farmout agreement and lease assignments and an accounting of production. After two wells were completed, Dome Petroleum sent a letter to the plaintiffs seeking their acquiescence to a farmout agreement. The letter read in part: Dome has recently agreed to a checkerboard Farmout to Atlas Drilling Company. A copy of the Farmout Agreement is enclosed for your review. Advantages to Dome, and our various partners are, evaluation of production in those units Atlas drills, and protection of leases which would have expired before we could have drilled in this area. To indicate inclusion of your working interest in the Farmout Agreement please execute two (2) copies of this letter and return them to the undersigned. . . . Id., 1988 OK 129 at ¶7, 764 P.2d at 1352. ¶21 The Uptegraft opinion found the letter to be fraudulent, stating: This communication is immutably misleading by reason of failure to inform of current production, while stating an advantage of the arrangement is evaluation of the leases by drilling. The leases had already been evaluated by drilling. Further the leases were already perpetuated by production prior to the time the farmout had been mailed to plaintiffs. Id. And, in rejecting constructive knowledge as a defense to constructive fraud, the Uptegraft opinion quoted an early Kansas opinion: "The policy of the courts, is on the one hand to suppress fraud, and, on the other, not to encourage negligence and inattention to one's own interests. The rule of law is one of policy. Is it better to encourage negligence in the foolish, or fraud in the deceitful? Either course has obvious dangers. But judicial experience exemplifies that the former is the less objectionable, and hampers less the administration of pure justice. The law is not designed to protect the vigilant, or tolerably vigilant, alone, although it rather favors them, but is intended as a protection to even the foolishly credulous, as against the machinations of the designedly wicked. . . ." 1988 OK 129 at ¶13, 764 P.2d at 1354, quoting International Harvester Co. V. Franklin County Hardware Co., 101 Kan. 488, 167 P. 1057 (1917). Uptegraft concluded that Dome Petroleum was liable for its constructive fraudulent failure to fully disclose the production. The trial court judgment in favor of Dome Petroleum was reversed and the case was remanded to the trial court. ¶22 From the above review of Oklahoma's rich body of law dealing with mineral interests9 and the disclosure duty underlying constructive fraud, it is clear that the principles articulated in Deardorf v. Rosenbusch, 1949 OK 117, 206 P.2d 996, are instructive here. The trial court properly followed the precedential authority of Deardorf. IV. The Purpose of the Statutory Custodial Taking of Proceedsfrom Pooled Mineral Interests Owned by Unknown or Unlocated Persons ¶23 In 1983, the Legislature provided for the safekeeping and the custodial taking of royalty, bonus payments, and other monies directed to be paid to unknown or unlocated owners under a pooling order. 1983 Okla.Sess.Laws, ch. 320, now codified at 52 O.S.2011, §§ 551-558. The person holding such monies during the first year after the date of the pooling order must place the monies in an escrow account. Id. at § 552. At the end of the first year, the monies must be reported and transmitted to the Oklahoma Corporation Commission (OCC). Id. The OCC must place such monies in its Mineral Owners Escrow Account for deposit in the Mineral Owner's Fund in the State Treasury. Id. at § 553. On claims against the Mineral Owner's Fund, the State Treasurer must make payment to the rightful owners or the heirs, assigns, or devisees of the rightful owners from the Unclaimed Property Fund. Id. at § 554. Each calendar quarter, the State Treasurer must reimburse the Unclaimed Property Fund from the Mineral Owner's Fund. Id. ¶24 The underlying purposes of the above statutory scheme are clear: It assures that mineral proceeds of unknown and unlocated property owners will be safeguarded by the oil and gas lessees, operators, purchasers, and others who hold proceeds from production, and it requires the State Treasurer to attempt to locate the rightful owners through the unclaimed property mechanisms. This Court determined in TXO Production Corp. v. Oklahoma Corp. Comm'n, 1992 OK 39, ¶8, 829 P.2d 964, 969, that the statutes providing for the custodial taking of undistributed proceeds from pooled mineral interests clearly express legislative intent "to regulate the disposition of unclaimed proceeds from forced pooled oil and gas interests where the owners cannot be located." ¶25 TXO Production Corp. also concluded that the three acts dealing with custodial taking of intangible property must be construed together - 52 O.S. 1991, §§ 551 et seq., the so-called Unclaimed Pooled Monies Act (UPMA); 60 O.S.1981, §§ 651 et seq., the Uniform Disposition of Unclaimed Property Act; and 60 O.S.Supp.1984, §§ 658.2 - 658.8, 1984 amendments to the Uniform Act. Unless legislative intent would be violated, these three acts must be construed together to effectuate the purpose of providing for the custodial taking of unclaimed intangible property. . . . TXO Production Corp.,1992 OK 39 at ¶10, 829 P.2d at 970. The legislature . . . intended to allow Oklahoma to seize unclaimed monies belonging to (a) owners of forced pooled oil and gas interests with a last known address in Oklahoma, (b) owners with no known address where the holder is domiciled in Oklahoma, or (c) owners whose last known address is in a state with no custodial taking or escheat provisions and the holder's domicile is Oklahoma. Section 556 of the UPMA must be interpreted as allowing these monies to be subject to the provisions of both the Uniform Act and the 1984 Act Id., 1992 OK 39 at ¶11, 829 P.2d at 970-971. The opinion explained the custodial taking under these three statutory schemes: The UPMA and Uniform Act are not escheat statutes. They are "custodial taking laws" which make the State custodian of proceeds from forced pooled mineral interests whose owners are unknown or cannot be located, subject to the claims of those who prove ownership or a prior right to possession. These proceeds are ultimately placed in the Unclaimed Property Fund in the state treasury in trust for the rightful owner. By taking temporary custody of the unclaimed proceeds from a private holder, Oklahoma does not divest any state with a constitutional priority claim of custody or title to the funds. The public policy supporting custodial taking by a State is superior to any claim that a private holder may assert to any unclaimed proceeds. Under today's construction proceeds from forced pooled mineral interests are brought into the custody of the State Treasurer where mechanisms are available through the Uniform Act (a) for locating the rightful owners and allowing them to assert their claim administratively as well as in our courts, and (b) for exchanging information with other states needed to enable another state to audit or otherwise determine the unclaimed proceeds which it may be entitled to subject to a claim of custody. (Footnotes omitted.) Id.,1992 OK 39 at ¶15, 829 P.2d at 971-972. ¶26 The trial court concluded that the unclaimed property law placed notice requirements upon one who claims funds in the Mineral Owner's Fund in the State Treasury based upon the transfer of a mineral interest. Although defendant's claim against the State Treasurer is not before us, the policy underlying the custodial taking of proceeds from pooled mineral interests owned by unknown or unlocated persons provides a backdrop for our consideration of the parties arguments. V. The Summary Judgment Arguments ¶27 This appeal is governed by the accelerated procedure in Rule 1.36. Okla.Sup.Ct.R., 12 O.S.2011, ch. 15, app. 1. Our review is confined to the record and the briefs and arguments actually presented to the trial court. Defendant responded to plaintiffs' motion for summary judgment specifically admitting the material facts and circumstances related to the plaintiffs mineral deeds. Defendant set forth two additional undisputed facts that: 1) defendant did not make any representation about the subject matter other than what was contained in the offer letter and the mineral deed; and 2) defendant obtained a quiet title judgment on March 11, 2009, in Seminole County, No. CV-2008-378, vesting it with the rights of W. M. Croslin and Goldie Croslin in and to the subject oil and gas interest.10 ¶28 In admitting the material facts on summary judgment, defendant took the position that plaintiffs had constructive knowledge of the mineral interest, the pooling order, production, and the custodial taking of the mineral proceeds and that plaintiffs should have investigated the mineral interest. The policy of the courts to favor the unwary rather than the crafty as expressed in Uptegraft v. Dome Petroleum, 1988 OK 129 at ¶13, 764 P.2d at 1354, remains intact. Plaintiffs and the trial court correctly relied on Uptegraft for the proposition that constructive knowledge is not a defense to false representation. As to defendant's additional undisputed facts, plaintiffs' constructive fraud claim was grounded in the defendant's letter and defendant's mineral deeds, specifically the "if any" language in the deeds, and defendant waived the collateral attack argument. ¶29 For their first proposition in support of their motion for summary judgment, plaintiffs argued that the letter and the "bonus assignment" language in the mineral deed expressed a scheme to capitalize on their ignorance and that defendant intended to gain both the mineral interest and the mineral proceeds for about half the value of the accrued mineral proceeds. Plaintiffs relied on both Deardorf v. Rosenbusch and Berry v. Stevens. In response, defendant urged that a mineral interest purchaser has no legal duty to disclose all that it may know about the mineral interest and that fraud will not be presumed but must be established by clear and unequivocal evidence. Defendant argued that it made no representation to plaintiffs regarding the mineral interest and had no duty to speak under Uptegraft v. Dome Petroleum Co., and that Deardorf v. Rosenbusch and Berry v. Stevens are totally inapplicable because a mere offer is not a material misrepresentation.11 ¶30 The teachings of Berry v. Stevens, Deardorf v. Rosenbusch, and Uptegraft v. Dome Petroleum Co., set out above, are all applicable here. Similar to the production in Deardorf, the accrued mineral proceeds undoubtedly motivated defendant's unsolicited offers to purchase the mineral interest. Although defendant's letter referred to "mineral interest" and did not mention accrued mineral proceeds, defendant's mineral deed conveyed the "mineral interest" and also made a representation about the accrued mineral proceeds. It provided that the grant of the mineral interest was intended to grant defendant the right to "all royalties, accruals and other benefits, if any, from all Oil and Gas heretofore or hereafter run." (Bold added). Instead of disclosing the nearly $10,000.00 of accrued mineral proceeds to the plaintiffs, defendant remained silent, and, with the "if any" language in the mineral deed, indirectly if not directly, created a false impression that defendant did not know of any production or any accruals from all oil and gas heretofore run. Plaintiffs relied, to their detriment, on the false impression created by the "if any" language. The "if any" language in the mineral deeds discouraged, rather than encouraged, the plaintiffs to make an independent investigation into the mineral interest. ¶31 Further, defendant discouraged plaintiffs from doubting defendant's truthfulness through the false impression that defendant had not investigated the ownership of the mineral interest. The false impression was created by the language in defendant's offer letter that "when the Mineral Deed has been received by our office, we will begin our title examination" and that the drafts will "be paid upon completion of the title examination." ¶32 The language in defendant's mineral deed assigning the accruals of royalties, if any, from heretofore runs gave rise to a duty on the part of defendant to disclose the whole truth, including all material facts about the accrual of the mineral proceeds. Deardorf expressed the principles governing defendant's duty - where defendant is under a duty to say nothing or to tell the whole truth, defendant's duty to tell the whole truth may arise from partial disclosure and defendant conveying a false impression by disclosing some facts and concealing others is guilty of fraud in that the concealment is in effect a false representation that what is disclosed is the whole truth. Plaintiffs were entitled to summary judgment on the legal issue of defendant's disclosure duty as a matter of law. ¶33 For their second proposition, plaintiffs contended that defendant violated the state's public policy expressed in the pooled mineral interests statutes, 52 O.S.2001, §§ 551, et seq., and the unclaimed property statutes, 60 O.S.2001, §§ 651, et seq. Defendant responded that neither the pooled mineral interests statutes nor the unclaimed property statutes expressed a public policy requiring defendant to disclose the accrued mineral proceeds in offering to purchase plaintiffs' mineral interest and urged that this Court should refrain from creating public policy. Defendant argued that the statutory scheme for the custodial taking of undistributed proceeds from pooled mineral interests and the statutory scheme for custodial taking of unclaimed property were absolutely separate until the 2010 amendment to the unclaimed property statutes.12 ¶34 Three decades ago, the Oklahoma Legislature expressed a public policy that the State will protect undistributed proceeds from forced pooled mineral interests for the rightful owners. The false impression created by the "if any" language in defendant's mineral deed cannot be ignored in light of this strong statutory policy.13 Guided by TXO Production Corp., we reject defendant's argument that the statutes providing for the custodial taking of undistributed forced pooled mineral proceeds and the unclaimed property statutes were absolutely separate until 2010. ¶35 For their final proposition on summary judgment, plaintiffs asserted they were entitled to rescission under 15 O.S.2001, § 233. Defendant argued that rescission is not available where, as here, "the contents of the Mineral Deed merely described that which Enerlex [defendant] wanted to buy and the amount Enerlex wanted to pay." Defendant made an offer to purchase the undivided mineral interest for a total of $4,100.00. Defendant's offer did not mention accrued mineral proceeds, and defendant's mineral deeds did not describe the amount defendant offered to pay for the accrued mineral proceeds. A clear inference arises from the "if any" language in the mineral deeds that defendant wanted to obtain the nearly $10,000.00 mineral proceeds without disclosing the existence of the mineral proceeds to plaintiffs. ¶36 Before allowing defendant to benefit from the mineral deeds, equity can and will, under the circumstances of this case, cause to be done what defendant was obligated to do. Defendant was obligated to disclose to the Croslin siblings that they were assigning $9,961.71 held in trust by the State Treasurer over to defendant as part of the conveyance of the mineral interest. The statutes14 allow plaintiffs, upon discovering defendant's suppression of the truth, to rescind the mineral deeds induced by defendant's false representation. VI. Summary ¶37 In summary, defendant wanted to spend a total of $4,100.00 in cash and get nearly $10,000.00 in cash plus four mineral acres and future income. To accomplish its goal, defendant offered to purchase the four mineral acres from plaintiffs for a total of $4,100.00, and relying on plaintiffs' ignorance of the nearly $10,000.00 of accrued mineral proceeds, defendant provided plaintiffs mineral deeds transferring both the four mineral acres and the accrued mineral proceeds. Defendant obtained the mineral deeds from plaintiff by false representation and suppression of the whole truth. Defendant is liable to plaintiffs for constructive fraud. Fraud in the procurement of a written instrument vitiates it in the hands of one seeking its benefit. Berry v. Stevens, 1934 OK 167 at ¶9, 31 P.2d at 954, First National Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶12, 54 P.3d 100, 104. Under the circumstances here, rescission is an appropriate remedy for defendant's misrepresentation and constructive fraud. OPINION OF THE COURT OF CIVIL APPEALS VACATED;SUMMARY JUDGMENT OF THE TRIAL COURT AFFIRMED. Colbert, C.J., Reif, V.C.J., and Kauger, Watt, Edmondson, Taylor, Combs, and Gurich, JJ., concur. Winchester, J., concurs in result. FOOTNOTES 1 According to the Suggestion of Death filed November 1, 2010 in the district court, Charles D. Croslin died on September 1, 2010, during the pendency of this action. 2 Pursuant to 52 O.S.2001, § 552, the undistributed mineral interest proceeds were reported and transmitted to the Oklahoma Corporation Commission, deposited in the Mineral Owner's Escrow Fund, and then, pursuant to 52 O.S.Supp.2003, § 554, the funds were transferred to the Mineral Owner's Fund in the State Treasury. 3 Defendant sent a bank draft in the amount of $250.00 marked "CONSIDERATION FOR: Signature Fees" and a bank draft in the amount of $1,100.00 offered to each of the plaintiffs as the purchase price of the undivided mineral interest. 4 In 2008, the plaintiffs' ages were 69, 70, and 77 years. Two of the plaintiffs executed the mineral deeds in Oklahoma County, Oklahoma, and one plaintiff executed the mineral deed in Bowie County, Texas. Two plaintiffs signed affidavits stating they would not have signed the mineral deeds if they had knowledge of the production and accrued mineral proceeds. 5 The Court of Civil Appeals opinions in Harbour Mineral Properties v. Pence, No. 108,822, and Livingston, et al. v. TOP,LLC, No. 108,425, are in conflict with the Court of Civil Appeals opinion in this case. The controversies in Harbour Mineral and Livingston arose out of circumstances similar to the circumstances in this case. The buyers made unsolicited offers to buy mineral interests in Coal County knowing that the mineral interests were subject to pooling orders, that mineral proceeds had accrued under the pooling orders, that the proceeds had been transmitted to the State, and that the sellers were unaware of these material facts; and the sellers testified that they would not have sold their mineral interests had they been aware of the material facts. Both opinions concluded that Deardorf v. Rosenbusch imposed a duty upon the buyers to disclose material facts regarding production and accrued mineral proceeds when making the offers to purchase the mineral interests. The Harbor Minerals and Livingston opinions are consistent with today's opinion. 6 15 O.S.2001, § 58, now 15 O.S.2011, § 58, defines actual fraud: Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true.2. The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true.3. The suppression of that which is true, by one having knowledge or belief of the fact.4. A promise made without any intention of performing it; or,5. Any other act fitted to deceive. 7 15 O.S.2001, § 59, now 15 O.S.2011, § 59, defines constructive fraud: Constructive fraud consists:1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. 8 15 O.S.2001, § 60, now 15 O.S.2011, § 60 provides: "Actual fraud is always a question of fact." 9 The production of oil and gas in Oklahoma predates statehood (oil was first produced in Oklahoma in 1859, Oklahoma Historical Society's Chronicles of Oklahoma, vol. 4, p. 322, Dec. 4, 1926), and mineral interests in Oklahoma are often severed from the title to the land. 10 On summary judgment, defendant argued that this suit is an impermissible collateral attack on the quiet title judgment in case No. CV-2008-378 in Seminole County. However, defendant later waived this defense or issue, and it is not before us today. Even so, we note that the quiet title judgment recites that the petition in CV-2008-378 was filed October 24, 2008, against the "The Unknown Heirs, Executors, Administrators, Devisees, Trustees, and Assigns of W. M. Croslin, Now Deceased, and Goldie Arlice Croslin, Now Deceased, and the State of Oklahoma, ex rel the Oklahoma Tax Commission" and that service was accomplished by publication. Apparently, defendant did not name plaintiffs herein as parties and did not cause service of process upon them even though defendant knew the identities and whereabouts of the plaintiffs herein when it filed the quiet title action. Notwithstanding, the quiet title judgment finds that plaintiffs herein are the only children of W. M. Croslin and Goldie Arlice Croslin and the sole and only heirs who inherited the four mineral acres in Seminole County. The judgment also finds that the plaintiffs herein executed mineral deeds conveying the mineral interest and assigning all monies attributed to the mineral interest to defendant herein and vests title to the four mineral acres and the royalty proceeds held in the State Treasury in defendant herein. An inference arises from defendant's not naming plaintiffs herein as parties to the quiet title action that defendant did not want plaintiffs herein to know about the accrued mineral proceeds. 11 Defendant argued that an offer speaks only to what a buyer is willing to pay and that it is not a representation of material fact under Bowman v. Presley, 2009 OK 48, 212 P.3d 1210. Apparently persuaded by this argument, the Court of Civil Appeals found the defendant did not make any factual inducement, representation, or misrepresentation, citing ¶29 in the Bowman opinion. Bowman is factually inapposite and ¶29 in the Bowman opinion dealt with the doctrine of caveat emptor. The issues in Bowman arose out of a real estate listing by a real estate agent that knowingly erroneously overstated the square footage of a residential property. Bowman, 2009 OK 48 at ¶29, 212 P.3d at 1222-1223, recognized that the doctrine of caveat emptor may serve as a defense to a claim of fraudulent misrepresentation where a buyer has unjustifiably relied on a self-serving seller's representation of value, and at note 39, recognized that a seller's representation as to value is considered to be mere opinion, citing Nowata v. West, 1919 OK 367, 186 P. 220. See also, Steiner v. Hughes, 1935 OK 335, 44 P.2d 857, 861 (mere statement of value or cost or profit alone is not sufficient to prove fraud on part of a seller). In this case, we are not concerned with a self-serving seller or the market-place principle of "let the buyer beware." 12 In 2010, the Oklahoma Legislature amended § 675 of Title 60 in the Uniform Unclaimed Property Act adding a new subsection D that provides: "Claims against the Mineral Owner's Fund shall be subject to the same statutory requirements and administrative rules as are applicable to claims under the Uniform Unclaimed Property Act." 2010 Okla.Sess.Laws, ch. 241, § 5. 13 For their third proposition, plaintiffs asserted that the heir finder statute, 60 O.S.2001, § 674.1, applied to defendant which we do not address in light of the public policy underlying the custodial taking of undistributed proceeds from forced pooled mineral interests. 14 15 O.S.2001, § 233, now 15 O.S.2011, § 233, provides in part: A party to a contract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.

ef64abc9-f294-4244-8304-a698896cb5fd

Simonson v. Schaefer

oklahoma

Oklahoma Supreme Court

SIMONSON v. SCHAEFER2013 OK 25Case Number: 110997Decided: 04/09/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JAMES R. SIMONSON, Plaintiff/Appellant,v.ARLENE B. SCHAEFER, Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HON. BARBARA G. SWINTON, DISTRICT JUDGE ¶0 The plaintiff/appellant sued the defendant/appellee for professional negligence, breach of contract, and unjust enrichment. The appellant was a party to a divorce and child custody litigation. The appellee, a court-appointed psychologist, was to serve as an expert to conduct an evaluation of the parties and of their children. The appellant alleges that he paid the appellee $16,000.00 for the evaluation and after several months, as a result of the inaction of the appellee, her report had not been provided as ordered. The appellant settled the divorce proceedings in a manner he claimed was injurious to him and his son. The trial court granted the appellee's motion to dismiss. The motion urged that as a court-appointed witness, the appellee was immune to liability in damages. REVERSED AND REMANDED. J. David Terrell, and David L. Thomas, Oklahoma City, Oklahoma, for the plaintiff/appellant.Michael L. Carr, Tulsa, Oklahoma, and Jon L. Hester, Edmond, Oklahoma, for the defendant/appellee. WINCHESTER, J. ¶1 The issue is whether an expert appointed by a court to testify in a divorce and child custody litigation, and who is paid by a party to the divorce, is entitled to judicial immunity even when the expert presents no testimony and no report. This Court retained the case. ¶2 The plaintiff/appellant, James R. Simonson, alleged professional negligence, breach of contract and unjust enrichment in his suit against the defendant/appellee, Arlene B. Schaefer. She filed a motion to dismiss pursuant to 12 O.S.2011, § 2012(B)(6), for failure to state a claim upon which relief can be granted. The appellee asserted that she was entitled to dismissal because all the claims in the petition involved her role as a court appointed evaluator, and because she was performing an adjudicative act in advising the trial court, she was cloaked with judicial immunity. I. STANDARD OF REVIEW ¶3 A motion to dismiss is generally viewed with disfavor, and the standard of review before the court is de novo. Hayes v. Eateries, Inc.,1995 OK 108, ¶2, 905 P.2d 778, 780. When considering the legal sufficiency of the petition the court takes all allegations in that pleading as true together with all reasonable inferences that may be drawn from them; it must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts that would entitle relief. Fanning v. Brown, 2004 OK 7, ¶4, 85 P.3d 841, 844. The party moving for dismissal bears the burden of proof. Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 6, 212 P.3d 1158, 1163. II. FACTS ¶4 The appellant alleges that the trial judge appointed the appellee as an expert "to conduct an evaluation of the parties and of their minor children." The judge ordered that a copy of the appellee's written report be provided to the attorneys for each party and the Guardian Ad Litem. The appellant and the appellee agree that they entered into a contract on September 25, 2011, with regard to the court-ordered evaluation. The appellant claims he paid the appellee $16,000.00 over the course of several months in consideration for her professional services, that is, the report to the court. The appellee, in her amended answer denies entering into a contract with the appellant. But on a motion to dismiss, the appellant's allegations are taken as true. The appellant alleges that the appellee never provided her report, and that to bring an end to the divorce proceedings, the appellant settled the matter in a manner injurious to himself and his son, and suffered great emotional distress. He alleges that he requested a copy of his own records, which the appellee refused to provide. III. PROFESSIONAL NEGLIGENCE ¶5 In his petition, Count I, the appellant alleged that the appellee owed him a duty to handle her evaluations with the degree of skill, care, learning, and diligence ordinarily used by members of her profession acting under the same or similar circumstances, and asserted that she wholly failed and/or refused to discharge her obligation to produce this report causing him undue delay, emotional distress and harm in his divorce proceedings. He claims that this failure fell below the standard of care ordinarily used by members of the appellee's profession acting under the same or similar circumstances. ¶6 The immunity of parties and witnesses from subsequent liability in damages for their testimony in judicial proceedings is well established in English common law. Hartley v. Williamson, 2001 OK CIV APP 6, ¶ 15, 18 P.3d 355, 358.1 The primary duty of the appellee was to supply the court with her expertise in this judicial proceeding. Accordingly, her duty was to the court. A failure to testify after agreeing to may cause her to be answerable to the court, but we conclude that she is not answerable in tort to the appellant. She is entitled to immunity. See Kirschstein v. Haynes, 1990 OK 8, ¶ 8, 788 P.2d 941, 952, where the Court discussed absolute privilege for communications preliminary to a judicial or quasi-judicial proceeding. IV. BREACH OF CONTRACT, UNJUST ENRICHMENT ¶7 The appellant alleges that he entered into an agreement "wherein it was represented" that the appellee would provide a written evaluation of her findings to the attorneys and the court. He continues and repeats his allegation that he paid $16,000.00 for this service and that the appellee did not provide a written evaluation and/or refused to provide such a report. He claims both a breach of contract and that the appellee was unjustly enriched by failing to provide any report. The appellee cites Hathcock v. Barnes, 2001 OK CIV APP 69, 25 P.3d 295, to support her position that a court-appointed psychologist who serves as an expert in making recommendations to the trial court concerning child custody, is immune from liability. Hathcock, 2001 OK CIV APP 69, ¶ 9, 25 P.3d at 297. The appellee may very well have valid defenses to the allegations of the appellant, and a right to claim immunity under evidence properly presented, but on an appeal of a dismissal for failure to state a legally cognizable claim, as we stated above, all allegations of the appellant are taken as true as well as all of the reasonable inferences that may be drawn from the allegations. ¶8 A party to a divorce may be made financially responsible to compensate an expert appointed by the court, which expert is entitled to immunity from tort claims. Hathcock properly supports the immunity of an expert where the trial court expressly appoints the expert for the purpose of acting as an unbiased, impartial investigator of the family situation, and the parties contract with the expert to pay the expert's fees. Hathcock, 2001 OK CIV APP 69, ¶ 7, 25 P.3d at 297. Hathcock can be distinguished on the grounds that the expert actually testified and the expert's successful defense to the allegations of the plaintiffs/appellants was based on summary judgment, not a motion to dismiss. ¶9 However, the appellant has claimed that the appellee failed to provide any services whatsoever for the amount paid. We must treat these allegations as true. An expert would not be entitled to claim a fee for a court-ordered service that was not provided. This does not mean the appellant must be satisfied with the fees, but the appellant has a right to have the court decide if the fees were earned, and whether there was a valid legal defense to the assertions of the appellant that the appellee neither completed the required report, nor testified. The appellant admits that the underlying child custody was settled, so the trial court must also consider the impact the settlement had on the appellee's opportunity to complete the report or to testify. ¶10 Accordingly, the order of the trial court granting the appellee's motion to dismiss is reversed and remanded for further consideration consistent with the reasoning expressed herein. REVERSED AND REMANDED. CONCUR: COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, TAYLOR, COMBS, GURICH, JJ. CONCUR IN RESULT: KAUGER, EDMONDSON, JJ. FOOTNOTES 1 The Hartley opinion was released for publication by order of the Supreme Court and therefore accorded precedential value.

f2aa829c-c7f9-45e9-89fc-ba3355bc927c

Wright City Public Schools v. Oklahoma Secondary School Activities Assn.

oklahoma

Oklahoma Supreme Court

WRIGHT CITY PUBLIC SCHOOLS v. OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION2013 OK 35Case Number: 111729Decided: 05/31/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA WRIGHT CITY PUBLIC SCHOOLS and WRIGHT CITY BOARD OF EDUCATION, Plaintiffs/Appellees,v.OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION, Defendant/Appellant. ON APPEAL FROM THE DISTRICT COURT,McCURTAIN COUNTY, OKLAHOMA ¶0 On April 30, 2013, the Executive Director of the Oklahoma Secondary School Activities Association determined that the Wright City Public School violated the Association's rules when the varsity baseball team engaged in team play with the Idabel junior varsity team and the Valliant varsity team. The Executive Director imposed a forfeiture penalty, requiring the Wright City team to forfeit the next two games. The penalty eliminated Wright City from the 2013 Class A state tournament scheduled for May 2 and 3, 2013. On May 1, 2013, Wright City sought judicial relief. On May 3, 2013, the McCurtain County District Court, the Honorable Michael DeBerry, presiding, entered a temporary restraining order and a temporary injunction against the Association. The Association appealed. On May 6, 2013, this Court retained the appeal. DISTRICT COURT TEMPORARY INJUNCTION DISSOLVED;CAUSE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS. Kevin T. Sain, Idabel, Oklahoma, and Mark E. Fields, McAlester, Oklahoma, for appellee.Mark S. Grossman, Oklahoma City, Oklahoma, for appellant. TAYLOR, J. ¶1 The dispositive issue in this appeal is whether the trial judge erred in issuing the temporary injunction. The substantive issue in this appeal is whether the Executive Director of the Oklahoma Secondary School Activities Association (OSSAA) acted in an unreasonable and arbitrary manner when he imposed a forfeiture penalty against Wright City Public School (Wright City) for violation of OSSAA's 22-game limit baseball rule. I. Facts and Proceedings ¶2 The following are facts and circumstances gleaned from the parties' filings and testimony at the evidentiary hearing before the McCurtain County District Court. Having won the district and the regional tournaments, Wright City's varsity baseball team qualified for the eight-team, single-elimination Class A state championship tournament. The state tournament was scheduled for May 2 and 3, 2013. ¶3 The Wright City coach testified that on Monday, April 22, 2013, after winning the district tournament, he scheduled and the team participated in a five-inning, three-out/three-run game with the Idabel junior varsity team and he posted the results on-line at OKrankings.com. On Monday, April 29, 2013, after winning the regional tournament, the Wright City coach scheduled and the team participated in a five-inning, three-out/three-run game with Valliant. The coach considered the Idabel game to be a practice and the Valliant game to be a scrimmage. The coach was aware of the 22-game limit. OSSAA General Baseball Regulations, Section VI(H) provides that "game limits for varsity games are 22 games and three tournaments." With the unfolding of events on April 30 and May 1, 2013, the coach testified that any mistake in scheduling or playing Idabel and Valliant was his fault and the team should not be punished. ¶4 The OSSAA assistant administrator in charge of fall and spring baseball, a staff member under the supervision of the Executive Director, testified that on April 30, 2013, he received a telephone call from an unidentified person suggesting that Wright City exceeded the 22-game limit rule. The assistant administrator testified that he checked the on-line Okrankings.com and then contacted the school principal, the athletic director, and the coach. The Wright City principal and the coach admitted the team had participated in the Idabel junior varsity and the Valiant games. The coach explained that he thought the 22-game limit applied to regular season play but did not apply to post-season play. ¶5 Upon inquiry, the assistant administrator learned that four schools had violated the softball game-limit rule in the fall of 2012 and were given forfeiture penalties which eliminated two of the schools from the state championship tournament and placed the other two schools in the loser bracket. The assistant administrator testified that after "visiting with staff it was apparent that to the majority of us that this situation was similar to the softball situation so forfeit games would be appropriate." Tr., p. 67. The assistant administrator advised the Executive Director of the telephone tip and his investigation. ¶6 By letter dated that day, April 30, 2013, the OSSAA Executive Director advised Wright City of the 22-game limit violation and the coach's explanation. The letter explained that the game limit prevents some teams from gaining a competitive advantage and avoids overemphasis on one sport and advised that no exception exists for additional games beyond the 22-game limit in Section VI(H). The letter set out the penalty for the rule violation: Generally when a team has participated in more contests than permitted under the rules and regulations for that sport, the team is required to forfeit or sit out of an equal number of contests after the violation has been discovered. In this instance, Wright City is required to forfeit its next game, which is the first round of the state championship tournament. This forfeit will eliminate the team from the state tournament and completes the baseball season for the team. Because Wright City played in a second game in excess of the limitation, the team also will be limited next year to 21 match games and three tournaments in spring baseball, in addition to any state championship playoff games. The school further will be placed on warning for one year, meaning that the discovery of any other rule violations during the next year could result in the imposition of additional sanctions and penalties. ¶7 By letter dated May 1, 2013, the Wright City Board of Education and Superintendent requested a reconsideration of the Executive Director's April 30th forfeiture penalty. The request asserted that the coach has taken full responsibility and is remorseful for his mistake, and it asked that the penalty be revised to suspending the coach and forfeiting the opportunity to host a district or regional tournament in 2014 under the "precedence set in similar situations last spring at Guthrie and Sand Springs." It further urged that the penalty resulted in unfair tournament brackets. ¶8 Also by letter dated May 1, 2013, Wright City's coach sought reconsideration of the Executive Director's April 30th forfeiture penalty. The coach asked that the Guthrie situation serve as a guide: Last Spring the Guthrie baseball team violated the amount of games played. It states in that article that team would be allowed to continue in the playoffs but without their head coach. They were forced to forfeit their last game that would have been the 23rd scheduled game. Forfeiting a district game should have prevented the team from playing in the post season, but OSSAA changed their ruling in favor of the kids to allow them to participate in the playoffs. They removed the probationary status and placed the school on warning status for one calendar year. As to the issue of the teams unfair advantage, the coach urged: Also, if this issue is about advantage by eliminating my team from the state tournament and making it a 7 team tournament with the #2 seed Sterling receiving the bye, it puts the other 6 teams in the tournament at a disadvantage. With the pitching rule in place along with the all teams having to play and face elimination the first day, it will allow Sterling a major advantage of preserving their pitching staff. This will not be fair. The tournament is set up to be an 8 team tournament, and for the integrity of the tournament, it should remain so. ¶9 On the same day that the Wright City's superintendent, school board and the coach submitted their requests for reconsideration, May 1, 2013, the school board sought injunctive relief in the district court to allow Wright City to participate in the first round of the tournament on May 2, 2013. The petition alleged that OSSAA's refusal to allow Wright City to participate in the state tournament was arbitrary and capricious and that OSSAA violated its own due process rules and procedures. The district court entered an ex parte temporary restraining order against OSSAA. The restraining order found that Wright City would be irreparably harmed on and after May 2, 2013, if the team is not allowed to participate in the state tournament and the harm cannot be repaired by money damages. ¶10 Also on May 1, 2013, the Executive Director responded to the request for reconsideration from the Superintendent of Wright City. The Executive Director acknowledged receipt of the letters seeking reconsideration and service of process in the suit for injunction. The Executive Director pointed out differences in the Sand Springs and Guthrie situations and the Wright City situation and claimed that Wright City's situation gave rise to a presumption that Wright City gained an unfair competitive advantage. He admonished Wright City for the coach's error, for seeking judicial relief, for misinforming the court, and for any disruptive delay of the tournament. He did not treat Wright City's requests for reconsideration as a request for a meeting with the investigator under OSSAA's Constitution, Article IV, Section 6(c) or an appeal to the OSSAA Board of Directors under Section 6(f). ¶11 At the hearing on the temporary injunction on May 3, 2013, the Executive Director testified extensively about the Guthrie and Sand Springs situations. In summary, he testified that in the Guthrie situation the coach for the varsity spring baseball team scheduled twenty-three games; Guthrie brought their junior varsity team to play the twenty-third game scheduled against El Reno and asked that it be counted as a junior varsity game; El Reno refused to count the game as a junior varsity game; Guthrie forfeited the game and was automatically placed on probation status; and Guthrie self-imposed penalties. The Executive Director determined that Guthrie did not exceed the game limit because they played their junior varsity team and moved Guthrie from probation status to warning status allowing Guthrie to play in the tournament. ¶12 The Executive Director testified that in the Sand Springs situation the coach realized they scheduled too many games; "so knowing that they went over on the game limitations it would be a forfeit and we would put them on probation, they would be out of the playoffs, so when they got to the end, when they go to 22 games, they forfeited their last district game." Tr., p. 26. Because of the forfeiture, Sands Springs was placed on probation and "they took the necessary steps in our opinion we allowed them to play in the play-offs." Tr., p. 27. "Based on the violation and based on the circumstances they provided to us, we decided to remove them from probation status to a warning status and to let them continue on with the baseball." Tr., p.29. ¶13 The Executive Director testified he was dealing with a specific penalty for Sand Springs and Guthrie. Although he did not identify the specific regulation, it must have been the Spring Baseball Regulations for Class 5A and 6A which provides that a team will automatically be placed on probation when the team forfeits a game and that probation status prohibits the team from post-season contests. See, Spring Baseball Regulations IV(2). He testified there was no specific penalty rule for Wright City's violation and the penalty was left to his discretion to do nothing, to prohibit Wright City from playing in the state tournament, to suspend the coach, or other endless possibilities: (Tr., p. 40): Q: Are there others that you would say are possibilities of punishment? A: Possibilities are endless counselor. Q: Cause it is completely in your discretion, isn't it? A: We go back to the precedence that have been set in the past and we have several precedence that are identical to this situation and we applied the same sanctions here as we did with previous schools that have violated game limitations. Q: But the rules that we discussed that Guthrie's baseball and Sand Springs baseball teams made, there were specific rules that you said you cannot continue to play if you do this, were there not? A: Yes. Q: But in this instance there is not a specific rule that says you cannot continue to play, that is just something in your discretion that ya'll decide, that is right isn't it? A: Based on previous precedence, yes. ¶14 As to the previous forfeitures for rule violations, the Executive Director testified that where a football team plays an ineligible player, the contest is forfeited and the ineligible player sits out the same number of contests when he/she becomes eligible. Again, he did not identify the regulation that specifically prescribes the minimum penalty against the team for participation of an ineligible player to be forfeiture of all contests in which the ineligible player participated. See, Football Regulation XIII. The Executive Director testified he disagreed with the Board's decision to allow the Guthrie football team to play in the tournament without the ineligible player. Tr., p. 52. ¶15 The trial judge inquired of the Executive Director about his testimony that there cannot be a rule for punishment for violation of every rule in the book. Tr., p. 56. The Executive Director testified that there is no punishment in the OSSAA rules for violation of the game-limit rule. The Executive Director did not, however, inform the trial judge of the general enforcement rule. OSSAA Board of Directors' Policies, No. I RULE ENFORCEMENT, enumerating penalties for violations of OSSAA rules. ¶16 At the conclusion of the evidentiary hearing, the trial judge granted a temporary injunction. The trial judge found that 1) Wright City would be irreparably harmed if the injunction is denied; 2) the forfeit would affect other teams regarding pitching; 3) all decisions presented by defendant involved matters in which there were specific penalties; 4) there is no penalty for Wright City's violation so OSSAA's decision in this matter is arbitrary; and 5) the rules do not provide for a general penalty. OSSAA appealed. We retained and expedited the appeal. II. Standard of Review ¶17 The dispositive issue is whether the trial court's temporary injunction is a clear factual or legal error or an abuse of discretion. Board of Regents v. National Collegiate Athletic Ass'n, 1977 OK 17, 561 P.2d 499, 501. Pursuant to 12 O.S.2011, § 952(b) (2), this Court may reverse, vacate or modify a district court's temporary injunction where, if on review, it appears from the nature of the case and all the facts properly before the court that the plaintiff was not entitled to an injunction and that it should not have been granted. Id., at 501-502. Injunctive relief is equitable in nature and the appellate court will consider all the evidence on appeal. Id. III. OSSAA ¶18 OSSAA is an association of 481 secondary schools, Tr., p.21, formed to conduct and supervise numerous competitive extracurricular student activities. Most public and private schools in Oklahoma are voluntary members of OSSAA.1 The members of the OSSAA adopted a Constitution.2 The OSSAA, through its membership, has adopted Rules Governing Interscholastic Activities in Senior High Schools, a 32-page publication, and voluminous regulations governing the various competitive extracurricular student activities, including OSSAA's General Baseball Regulations and Spring Baseball Regulations. The OSSAA has adopted Board of Directors' Policies, a 28-page publication, authorized by its Constitution. ¶19 The OSSAA's power and duties are fixed by its Constitution. The OSSAA functions to serve secondary school students. It's mission statement in the Constitution, Article II, Section 2, reads: The OSSAA will serve member schools by providing leadership in the development, supervision, and conduct of co-curricular activities, which enrich the educational experiences of high school students. It will provide for equitable participation opportunities and positive recognition to students as a whole, while working cooperatively with schools to enhance the achievement of desired educational goals. ¶20 The OSSAA Board of Directors is authorized to adopt such policies and procedures necessary to conduct its business as long as the policies are not in conflict with the OSSAA Constitution and its rules, and to interpret the provisions of its constitution, rules, and policies and procedures, to investigate alleged violations, and to be the final judge as to whether a rule violation has occurred. OSSAA Constitution, Article IV, Section 4(b) and (g). The Board is also authorized to assess penalties and invoke sanctions for violation of its constitution, rules, and policies and procedures and its decisions are final. OSSAA Constitution, Article IV, Section 4(h). Section 4(h) also allows a member school to impose discipline for rule violations: . . . the Board may assess a penalty against such school and school personnel unless such school promptly elects to and does take disciplinary action against the guilty individual which is acceptable to the Board. ¶21 The OSSAA Constitution directs that the Executive Director or designee will conduct an impartial investigation of any alleged rule violation and authorizes the Executive Director to take temporary action to prevent further violation of the rules. OSSAA Constitution, Article IV, Section 6(a) and (d). It grants a school or individual the right to meet with the investigator prior to any decision on an alleged violation. OSSAA Constitution, Article IV, Section 6(c). It grants a school or individual the right to appeal to the Board of Directors, provides that any appeal will be heard at the next regularly scheduled board meeting, and requires the Executive Director to give notice to the school of the date, time and place of the appeal hearing. OSSAA Constitution, Article IV, Section 6(f). Except for the temporary action authorized in Section 6(d) of Article IV, the OSSAA Constitution does not authorize the Executive Director to assess penalties or invoke sanctions for violations of the constitution, rules, or policies and procedures.3 ¶22 The OSSAA may enforce its published rules, regulations, and policies without undue interference by the courts. Morgan v. Oklahoma Secondary School Activities Association, 2009 OK 21, ¶17, 207 P.3d 362, 365. However, the courts will intervene to assure the OSSAA proceedings are conducted pursuant to its constitution, rules, regulations, and policies in good faith: We may not interject ourselves in the Association's internal affairs if the rules are reasonable, lawful, in keeping with public policy, and are interpreted fairly and reasonably and enforced uniformly and not arbitrary. Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, ¶10, 125 P.3d 1219, 1224. Although we leave its internal affairs to the OSSAA, this Court has recognized that the power to exercise discretion might be harmful to the OSSAA because the potential for arbitrary decisions comes with the power to exercise discretion. Mahan v. Agee, 1982 OK 116, ¶19, 652 P.2d 765, 768. IV. The Parties Arguments ¶23 In its brief in chief, OSSAA takes the position that the trial judge's temporary injunction is grounded in an erroneous proposition that enforcing a rule that has no specified penalty is inherently arbitrary. OSSAA contends that its constitution, rules, regulations, and policies do not provide a penalty for violation of the 22-game limit baseball rule and argues that disciplining a member for violating a rule that has no stated penalty is not inherently arbitrary. It is true that the trial judge ruled that there is no penalty for Wright City's violation so OSSAA's decision in this matter is arbitrary and that OSSAA's rules do not provide for a general penalty. These rulings are erroneous. However, these rulings are based upon the testimony of the Executive Director. ¶24 When the trial judge questioned the Executive Director about a penalty for violation of the game-limit rule, he testified there was no penalty provided in the rules. The Executive Director should have informed the trial judge of the written and published OSSAA Board of Directors' Policies and Policy No. I, captioned RULE ENFORCEMENT. Policy No. I prescribes three general penalties to be invoked or assessed for violations of OSSAA rules presented for a decision: 1) place a member school on warning status, 2) place a member school on probation status, and 3) suspend the school from membership. OSSAA's Constitution, Article IV, Section4(h) limits the maximum penalty for any one violation of the Constitution or Rules to a one-year suspension. The trial judge erred and so did the Executive Director when he did not follow Policy No. I, which does not permit a future-game-forfeiture penalty for rule violations. ¶25 Without discussion, OSSAA asserts that the Wright City situation gave rise to a presumption that Wright City gained an unfair competitive edge over the other seven teams in the eight-team state tournament. Factually, Wright City's five-inning play against a junior varsity team and a nine-member team does not give rise to a presumption of an unfair competitive edge. Further, neither the General Baseball Regulations prescribing the 22-game limit nor the Board of Directors' Policies recognizes a presumption of an unfair competitive edge. While a maximum on the number of season and tournament games levels the season's play time, it also, more importantly, assures that baseball will not invade and usurp the time needed for academics. We have carefully perused the OSSAA Constitution, Rules, Regulations, and Policies, and we do not find that the OSSAA membership or its Board of Directors recognize a presumption of an unfair competitive edge from a violation of the rules imposing game limitations. ¶26 OSSAA also argues that a forfeiture penalty for the 22-game limit rule is consistent with the rules requiring forfeiture of each contest in which an ineligible student participated. This argument is without merit. The rules and regulations include specific forfeiture penalties where ineligible players have participated in contests. ¶27 OSSAA also relies on the forfeiture penalties imposed on four softball teams in the fall of 2012. Both the Executive Director and his administrative assistant testified that such penalties were imposed without testifying to the factual similarities. The appellate record contains no evidence showing the particular situation of each of those softball teams. Even so, we have already determined that the Board of Directors' policies expressly enumerate the general penalties for rule enforcement. The general penalty provisions must be followed where no specific penalty has been adopted. ¶28 Wright City takes the position that the OSSAA seeks to punish Wright City for violation of a rule without a defined penalty and that OSSAA's reserving for itself total discretion to fashion an appropriate penalty is, on its face, arbitrary and capricious. Wright City argues that the OSSAA has not uniformly interpreted the terms "game" and "scrimmage" and "competition" and that it has arbitrarily meted out ad hoc punishment for violation of the game-limit even accepting self-imposed penalty when it chooses. As discussed above, the published OSSAA Constitution, Rules, Regulations, and Policies required the Executive Director and the OSSA Board of Directors to enforce the 22-game limit rule within the confines of the rule enforcement policy in the Board of Directors' Policies. V. Conclusion ¶29 The mission of OSSAA is to provide equitable participation opportunities to high school students, and the Executive Director has no authority to short circuit a student's participation opportunities. The Executive Director has the responsibility to impartially investigate alleged rule violations but he has no power to interpret the rules or to impose penalties in a manner that denies a school the right to meet with the investigator of an alleged rule violation or the right to a hearing before the Board of Directors as provided in the OSSAA Constitution. In this case, that is precisely what the Executive Director did. He decided against Wright City on the allegation of rule violation and imposed a future-game forfeiture which was outside the penalties allowed by OSSAA policies. Then in violation of the trial judge's ex parte temporary restraining order, he allowed the first day of state tournament playoffs with only seven teams to move forward. Further, the Executive Director did not treat Wright City's requests for reconsideration as either 1) a request for a meeting with the investigator prior to a decision on the allegation of a rule violation which he should have afforded even without a request before making a decision or 2) an appeal to the Board of Directors. The practical effect of the Executive Director's conduct is that the forfeiture penalty became permanent without compliance with the due process procedures prescribed in OSSAA's Constitution. We hold the Executive Director's decision that Wright City violated the 22-game rule and the forfeiture penalty are arbitrary and without force or effect. ¶30 The trial court had an obligatory duty to assure that Wright City was complaining of injury caused by the OSSAA Board of Directors' action. It erroneously did not. Courts review actions by the OSSAA members and Board of Directors. The decision on the issue of whether Wright City violated the 22-game rule must be made by the OSSAA Board of Directors. The controlling effect of reasonable OSSAA rules and the Board of Directors' reasonable interpretation of its rules and constitution has long been recognized by this Court. ¶31 Wright City's petition for injunctive relief complained that the OSSAA denied Wright City its right to due process, however neither party informed the trial judge that the OSSAA Board of Directors had not taken any action. Neither party nor the trial judge looked to the OSSAA Constitution to determine the propriety of the Executive Director's actions. Here, the OSSAA has acted only through the Executive Director. There is a complete absence of a showing that the OSSAA Board of Directors has been informed of the allegation made against Wright City, the penalty imposed against Wright City, or the request for reconsideration from Wright City. ¶32 All the players in this controversy have erred: 1) the Executive Director should not have decided the alleged rule violation with Wright City's request for reconsideration pending and without allowing Wright City a meeting with the investigator, 2) Wright City should not have sought district court relief before the OSSAA Board of Directors denied it any relief, and, 3) the district court should not have entertained the petition for injunctive relief before it had proof that the OSSAA Board of Directors refused to rule on the alleged rule violation and refused to extend the baseball season to allow Wright City to exercise its rights under the due process procedure in the OSSAA Constitution. We emphasize that Wright City should not have gone to the district court before going to the OSSAA Board of Directors. ¶33 Accordingly, we dissolve the district court's temporary injunction and remand the cause to the district court with directions to stay this proceeding until Wright City has an opportunity to challenge the allegations of rule violation before the OSSAA Board of Directors pursuant to OSSAA's Constitution, Article IV, Section 6. Rehearing in this appeal may be filed no later than Friday, June 7, 2013. DISTRICT COURT TEMPORARY INJUNCTION DISSOLVED;CAUSE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS. Colbert, C.J., and Watt, Winchester, Edmondson, and Taylor, JJ., concur. Combs, J., (by separate writing)concurs specially. Kauger, J., (by separate writing) concurs in part and dissents in part. Reif, V.C.J., (joins Gurich, J.) and Gurich, J. (by separate writing) dissent. FOOTNOTES 1 In its answer brief before this Court, Wright City argued the OSSAA must be treated as a public entity. The nature of the OSSAA was not challenged in the court below, and it is not fairly subsumed in the factual and legal issues dispositive of this appeal. We do not address the issue, and the OSSAA's motion to file a reply brief to present argument related to the nature of the OSSAA is hereby denied. 2 The OSSAA Constitution became effective November 1, 1962, and the organization was established January 1, 1963. The Constitution is seven pages in length and is divided into nine articles. Article IV, captioned ADMINISTRATION-BOARD OF DIRECTORS is nearly four pages in length. Article IV sets out the authority of and places constraints on the OSSAA Board of Directors and the Executive Director, including the "DUE PROCESS - Procedures Regarding Investigations, Hearings and Appeals" in Section 6. 3 Section 2 of Article V of the Constitution allows the OSSAA to delegate the administration of OSSAA to the Executive Director but any policy or rule whereby the members or the Board of Directors may have attempted to delegate the power to fashion penalties for rule violations to the Executive Director has not been brought to our attention. Combs, J., concurring specially: ¶1 Although I concur in the majority opinion, I write to emphasize my view of the limitations of the Appeal process. Wright City will have an opportunity to challenge the penalty imposed by the Executive Director and to present mitigation for a lesser penalty to the Board of Directors. ¶2 The hearing before the Board must be with a level playing field. The Executive Director after having been challenged for his initial determination of punishment, chastised Wright City for "seeking judicial relief and for the disruptive delay of the tournament". The Board cannot comply with due process if the decision to punish is so firmly established to vitiate the fairness and impartiality of the appeal process. Punishing a "voluntary" member cannot be prejudged and an open opportunity to appeal must be afforded. ¶3 The majority opinion acknowledges there is no punishment in the OSSAA rules for violation of the game limit rule. The general punishment provisions relied upon however include only punishments to the member school; i.e., place a member school on warning status, place a member school on probation, or suspend the school from membership (OSSAA Board of Directors' Policies and Policy No. 1, RULE ENFORCEMENT). None of the stated possible punishments deal with the individual responsible for breaking the rules, the coach. None of the stated possible punishments involve the forfeiture of games. In the precedent relied upon by the association, the specific rules provide for punishment against the offending coach or student, as well as the voluntary school member. Here the possibility exists an entire team of high school students are punished for a rule violation they have absolutely no control over. Where no specific penalty has been adopted, the general penalties for rules enforcement must be followed. Although the trial court was not advised of the general rules for punishment by the Executive Director, where the possible penalties do not include the very penalty imposed by the Executive Director the actions of the executive Director were arbitrary. In this proceeding the penalties available to the Board appear to be limited to warning, probation or suspension of the voluntary member school. No forfeiture provisions would apply. The Board would therefore not have any other possible penalty to impose. ¶4 The issue of a specific violation for the violation of the OSSAA General Baseball Regulations, Section VI (H) must be addressed, if at all, prospectively by an amendment to the Association rules or Constitution. KAUGER, J., concurring in part, dissenting in part: ¶1 The issue presented is whether the trial court abused its discretion in granting a temporary injunction against the Oklahoma Secondary School Activities Association (the OSSAA) which has delayed the state Class A baseball championship and denied athletes the opportunity to play in it. Because, under the facts presented, 1 even if the OSSAA Board of Directors determines a violation of the rules, its rules do not provide for forfeiture. ¶2 In Apache Corporation v. State of Oklahoma ex rel. Oklahoma Tax Commission, 2004 OK 48, 98 P.3d 1061, we explained why the procedure endorsed by the majority is partially flawed: ¶7 Exhaustion of administrative remedies is not required when those remedies are inadequate, ineffective or unavailable. Dewey v. State ex rel. Oklahoma Firefighters Pension and Retirement System, 2001 OK 40, ¶ 14, 28 P.3d 539, 546; McCarthy v. Madigan, 503 U.S. 140, 146-149, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992). We have explained the inadequacy, insufficiency, or futility of an administrative remedy when that remedy did not provide the parties with an opportunity to fairly present all claims and have them adjudicated. Lone Star Helicopters, Inc. v. State, 1990 OK 111, 800 P.2d 235, 237 (agency had no authority to adjudicate breach-of-contract claim); Walker v. Group Health Services, Inc., 2001 OK 2, ¶ 39, 37 P.3d 749, 762 (Board could not award damages for bad faith breach of an insurance contract). Cf. Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S. Ct. 331, 333, 72 L. Ed. 673 (1928), (taxpayer seeking refund was not required to exhaust where tax entity was powerless to grant any appropriate relief). . . . ¶9 We applied this exception to the exhaustion doctrine in Bankoff v. Board of Adjustment of Wagoner County, 1994 OK 58, 875 P.2d 1138, where we said that a party was not required to seek a zoning variance when it had previously been denied a conditional use permit. We explained that the law does not require one to do a vain or useless thing or to perform an unnecessary act to obtain relief. Id. 1994 OK 58, at n. 9, 875 P.2d at 1143. Cf. Orion Corp. v. State, 103 Wash. 2d 441, 693 P.2d 1369, 1379 (1985), (the futility exception to the exhaustion doctrine is premised upon the rationale that courts will not require vain and useless acts). (Emphasis supplied.) ¶3 It is a vain and useless act to send the matter back to the Board and to continue to stall the tournament. It is a waste of time, unreasonable, unfair and disruptive of the players' lives, to delay the state tournament when it can be immediately played and later determined: 1) if Wright City violated the rules against a 22 game limit when it participated in two five-inning post-season scrimmages; and 2) if so whether warning, probation or suspension is appropriate. The next Board meeting is June 4th and we are correctly reducing the normal rehearing to June 7th, the delay of the tournament continues and if rehearing is filed, it will be delayed even further. ¶4 The OSSAA Constitution Section 6 is a due process provision which requires an impartial investigation, written notifications, invitations to submit additional pertinent information to the investigation, as well as an opportunity for the schools, the students, and the student's parents to meet with the investigator. 2 The majority is correct that this has not been completed and that an appeal to the OSSAA's Board of Directors has not yet happened. At this stage of the game, the trial court should have ordered the tournament to proceed and allow the process before the OSSAA Board to occur after the tournament in order not to punish other schools' student-athletes affected by the Executive Director's decision. ¶5 The OSSAA refers to itself as a "voluntary association responsible for regulating interscholastic competition between public and certain private secondary schools in Oklahoma." This Court has previously referred to the OSSAA as "voluntary." In Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, ¶10, 125 P.3d 1219, we described the OSSAA and its purpose, saying: The Association is made up of schools who voluntarily apply for membership. One of its purposes is to promote high standards of good sportsmanship. With member input, the Association adopts rules governing the interaction between the Association and the membership. Member schools are presumed to acquiesce in the rules and in the constitutional provision vesting final authority as to whether a rule violation occurs in the Board of Directors. ¶6 While the term "voluntary" is used -- for students --the term is a misnomer. A school is required be a member of the OSSAA to participate in state-wide interscholastic athletic events. Students who want to be involved in athletics and who might even choose athletics as a career are required to be bound by the OSSAA rules and procedures if their school is a member and if they want to play sports. In this sense, it is not truly "voluntary" as the term suggests. ¶7 Nevertheless, the general rule is that the courts should not intervene in the affairs of such associations, except to ascertain whether association proceedings are conducted pursuant to the rules and laws of the organization, in good faith and lawfully. Absent fraudulent, collusive, unreasonable, arbitrary or capricious behavior, this Court may not overturn a voluntary association's enforcement of its rules.3 We may not interject ourselves in the OSSAA's internal affairs if the rules are reasonable, lawful, in keeping with public policy, and are interpreted fairly and reasonably and enforced uniformly and not arbitrarily.4 ¶8 The standard of review imposed for the issuance of a temporary injunction is similar -- whether the trial court abused its discretion or entered a decision against the evidence.5 Pursuant to 12 O.S. 2001 §952(b)(2),6 we may reverse, vacate, or modify a judgment of the district court where, on review, it appears from the nature of the case and all the facts properly before the Court the plaintiff was not entitled to injunctive relief.7 Injunction proceedings are equitable in nature. Therefore, we consider all the evidence on appeal.8 ¶9 While we have determined the Executive Director's actions were unreasonable and unlawful, there can be no determination concerning the OSSAA's actions because that process has not been completed. For some student-athletes playing in a state tournament is one of the highlights of their lives. They should not be haunted by "what might have been." The delay harms all the student-athletes, not just the players of Wright City. Because under any circumstances, the OSSAA's rules do not provide for forfeiture, I would allow the tournament to proceed with Wright City's participation and require the Board to proceed with the matter after the tournament. Any punishment or penalty is applicable to the school--not to the students. Here, the immediate answer is--Play Ball! FOOTNOTES 1 Ordinarily, because the OSSAA is a voluntary association, we do not interfere with its internal decision making. However, our previous decisions did not involve such a blatant violation of internal due process procedures or such egregious facts. Consequently, they are not dispositive here. For example, in Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, ¶10, 125 P.3d 1219, the student was directly involved in the dispute and the dispute involved a matter which occurred on the football field and witnessed by a referee. In Mahan v. Agee, 1982 OK 116, ¶2, 652 P.2d 765, the student had turned 19 and had exceeded the age limit eligibility requirement. In Oklahoma Secondary School Activities Association v. Midget, 1972 OK 154, ¶9, 505 P.2d 175, the OSSAA did not have a meeting as required by its Constitution but the Court determined it unnecessary because the principal of the high school which used the ineligible player gave initial information directly to secretary and neither the ineligible player nor his high school sought any relief. 2 The Oklahoma Secondary School Activities Association Constitution Section 6. DUE PROCESS - Procedures Regarding Investigations, Hearings, and Appeals provides in pertinent part: a The Executive Secretary or his/her designee (the "investigator") will conduct an impartial investigation into any alleged violation as soon as is reasonably possible after the allegation is brought to the attention of the Association. Before reaching any determinations, and as soon as is practical in the interest of insuring the investigation is complete, the representative of the member school(s) involved will be notified in writing, when feasible, of the alleged violation and invited to submit any information deemed pertinent to the investigation.b. If the investigation may impact the eligibility of a student to participate in interscholastic activities or contests, or may result in the imposition of penalties or sanctions on individual school personnel, before reaching any determinations, the investigator shall direct the member school's representative to notify the parents(s) or legal guardian of the student of the alleged violation or the school personnel involved, and to invite them to submit any information they deem pertinent to the investigation. The member school's representative shall provide the investigator with a written confirmation that his notice has been given within three days of the representative's receipt of notice of the alleged violation. If the investigator determines that the investigation my be compromised or impeded by immediate notice to the student or the student's parent(s) or legal guardian, or the school personnel involved, then notice may be delayed until the risk or interference with the investigation is minimized or eliminated.c. Prior to reaching any determinations, the investigator shall further afford the school(s), as well as any students(s) involved and the student's parents or legal guardian of such student, the opportunity to request a meeting with the investigator. Any timely request will be granted.d. Because some action my be necessary before an investigation of an alleged violation can be completed, the Executive Secretary is authorized to take temporary action pending further investigation and determination, if deemed necessary to prevent possible continuing or repeated violations of the Associations's Constitution, Rules, or Policies or Procedures.e. The Executive Secretary shall notify the representative of the member school(s) involved in writing of his/her decision with respect to the alleged violation as soon as possible after a determination has been made, and shall direct the representative to provide notice of the decision to any student(s) involved. The member school's representative shall provide the Executive Secretary with confirmation that this notice has been given within three days of receipt of notice of the Executive Secretary's decision.f. A member school or individual aggrieved by a decision of the Executive Secretary shall each have the right to appeal to the Board of Directors of the Association. . . . 3 Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, ¶10, 125 P.3d 1219; Mahan v. Agee, 1982 OK 116, ¶2, 652 P.2d 765; Oklahoma Secondary School Activities Association v. Midget, 1972 OK 154, ¶9, 505 P.2d 175. 4 Brown v. Oklahoma Secondary School Activities Association, see note 20, supra; Mahan v. Agee, see note 20, supra; Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association, 1977 OK 17, ¶12, 561 P.2d 499, 85 A.L.R.3d 953; Oklahoma Secondary School Activities Association v. Midget, 1972 OK 154, ¶9, 505 P.2d 175. 5 Brown v. Oklahoma Secondary School Activities Association, see note 20 at ¶11, supra; Sharp v. 251st St. Landfill, Inc., 1996 OK 109, ¶4, 925 P.2d 546; State ex rel. Schulte v. Hallco Environmental, Inc., 1994 OK 138, ¶2, 886 P.2d 994; Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association, see note 21, supra. 6 Title 12 O.S. 2001 §952(b)(2) provides in pertinent part: (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: . . .2. An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment; . . . 7 Brown v. Oklahoma Secondary School Activities Association, see note 20 at ¶11, supra; Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association, see note 21, supra; Quaker Oil & Gas Co. v. Jane Oil & Gas Co., 1917 OK 192, ¶0, 164 P. 671. 8 Brown v. Oklahoma Secondary School Activities Association, see note 20 at ¶11, supra; Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association, see note 21, supra; Vickers v. Vining, 1969 OK 66, ¶0, 452 P.2d 798. Gurich, J., with whom Reif, V.C.J. joins dissenting: ¶1 While I agree that in any future challenges to a decision made by the Executive Director, an appeal should be taken to the OSSAA Board of Directors prior to seeking relief in district court, I dissent to the application of this procedure to this case. Without a doubt, the actions of the Executive Director were arbitrary, and his criticism of Wright City for seeking judicial relief is so compelling that a hearing before the Board cannot be fair or impartial under these circumstances. The trial court's decision was correct in all respects and should be affirmed.

dfba49d8-a30f-4b2d-b91f-2efd70b3fd18

Douglas v. Cox Retirement Properties, Inc.

oklahoma

Oklahoma Supreme Court

DOUGLAS v. COX RETIREMENT PROPERTIES, INC.2013 OK 37Case Number: 110270Decided: 06/04/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CAROL A. DOUGLAS, Administratrix of the Estate of Richard Lee Douglas, deceased, Plaintiff-Petitioner,v.COX RETIREMENT PROPERTIES, INC., an Oklahoma Corporation, Defendant-Respondent. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY,STATE OF OKLAHOMA,HONORABLE REBECCA BRETT NIGHTINGALE ¶0 Plaintiff filed a wrongful death action in Tulsa County against the Defendant, Cox Retirement Properties, alleging Richard Douglas died as a result of the facility's negligent care and treatment. Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp. 2009 § 19. Section 19 was enacted in 2009 as part of H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The trial court granted the Defendant's Motion to Dismiss and certified the dismissal order for immediate review. We granted Plaintiff's Petition for Certiorari to Review Certified Interlocutory Order. We hold that H.B. 1603 violates the single-subject rule of Article 5, § 57 of the Oklahoma Constitution and is unconstitutional and void in its entirety. TRIAL COURT'S ORDER DISMISSING CASE IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT Steven R. Hickman, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, Attorney for Plaintiff-PetitionerMichael Carr, Anne Cardea, Holden & Carr, Tulsa, Oklahoma, Attorneys for Defendant-RespondentRandy Lewin, Richards & Connor, Tulsa, Oklahoma, Attorney for Amicus Curiae Oklahoma Association of Defense Counsel GURICH, J. Facts & Procedural History ¶1 On April 2, 2009, Richard Douglas was admitted to the Defendant's rehabilitative care center for extended care. Douglas remained at the facility for approximately 21 days and was discharged on April 23, 2009. He died a short time later on May 12, 2009. The decedent's estate filed a wrongful death action in Tulsa County against the Defendant, alleging Douglas died as a result of the facility's negligent care and treatment. ¶2 Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp. 2009 § 19. Section 19 was enacted in 2009 as part of H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing that the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution.1 The trial court granted Defendant's Motion to Dismiss and certified the dismissal order for immediate review.2 Plaintiff filed a Petition for Certiorari on January 9, 2012, and we granted review on February 14, 2012. Standard of Review ¶3 "In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254 (citing Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204). "Every presumption is to be indulged in favor of the constitutionality of a statute." Id. "It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition." Fent, 1999 OK 64, ¶ 4, 984 P.2d 200, 204. "A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government." Id. Analysis ¶4 The issue before us is the applicability of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution to H.B. 1603. Article 5, § 57 of the Oklahoma Constitution provides: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title . . . ." Okla. Const. art. 5, § 57. This provision is commonly known as the single-subject rule. The purposes of the single-subject rule are to ensure the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation and to prevent logrolling. Nova Health Sys. v. Edmondson, 2010 OK 21, 233 P.3d 380. Logrolling is the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure an unfavorable provision is not enacted. Id. ¶5 This Court has long rejected a broad, expansive approach to the single-subject rule. Campbell v. White, 1993 OK 89, ¶ 14, 856 P.2d 255, 258. In Campbell, we stated that the Legislature's "skillful drafting of a broad topic" defeats the purpose of the single-subject rule. Id. We reaffirmed such an approach in Weddington v. Henry, 2008 OK 102, 202 P.3d 143, where we struck down a bill whose subject was "uniform laws." In Fent v. State ex rel. Okla. Capitol Improvement Auth., 2009 OK 15, ¶ 20, 214 P.3d 799, 806, Nova Health Systems, 2010 OK 21, 233 P.3d 380, and Thomas, 2011 OK 53, ¶ 27, 260 P.3d at 1260, we continued to reject a broad, expansive approach to the single-subject rule. ¶6 In Thomas we reiterated that Oklahoma adheres to the germaneness test.3 Id. ¶ 26, 260 P.3d at 1260. The most relevant question under such an analysis is whether a voter, or legislator, is able to make a choice without being misled and is not forced to choose between two unrelated provisions contained in one measure. Id. The question is not how similar two provisions in a proposed law are, but whether it appears that the proposal is misleading or that the provisions in the proposal are so unrelated that those voting on the law would be faced with an all-or-nothing choice. Id. The purpose is not to hamper legislation but to prevent the Legislature from making a bill "veto proof" by combining two totally unrelated subjects in one bill. Id. If a bill contains multiple provisions, the provisions must reflect a common, closely akin theme or purpose. Id. ¶ 27, 260 P.3d at 1260. ¶7 H.B. 1603 contains 90 sections, encompassing a variety of subjects that do not reflect a common, closely akin theme or purpose. The first 24 sections of H.B. 1603 amend and create new laws within our civil procedure code found in Title 12. Many of these provisions have nothing in common. For example, Section 3 purports to give a trial court the authority to transfer a case to another state. Section 10 creates a law that assists the Oklahoma Healthcare Authority in collecting refunds for the Medicaid program. In Section 13, the Legislature adopts a portion of the federal civil procedure code to control a state court action. ¶8 Of the remaining 66 sections of H.B. 1603, 45 sections create entirely new Acts, which have nothing in common with each other, including The Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and The School Protection Act. For example, sections 43 through 46 create The Common Sense Consumption Act. The Act creates immunity from suit only for entities defined under the federal Food, Drug, and Cosmetic Act, and by its terms eliminates remedies for certain injured consumers. Sections 54 through 65 create the Asbestos and Silica Claims Priorities Act. Section 58(A) limits a physician's ability to testify in asbestos and silica litigation based upon his or her education, training, and experience, and instead requires adherence to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) (2000). ¶9 Other dissimilar sections of H.B. 1603 amend the Mandatory Seat Belt Use Act and the Oklahoma Livestock Activities Liability Limitation Act, limit the liability of firearm manufacturers, and amend existing laws regarding school discipline. H.B. 1603 also creates a new law that a school district representative may not conduct or preside as the hearing officer or judge at a due process hearing and then attend, advise, or influence an executive session of the school board.4 ¶10 This Court finds the Legislature's use of the broad topic of lawsuit reform does not cure the bill's single-subject defects. Campbell, 1993 OK 89, ¶ 14, 856 P.2d at 258. Although the Defendant argues the CLRA of 2009 does not constitute logrolling because the provisions within it are not so misleading as to create for a legislator an all-or-nothing choice, we find the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure the passage of favorable legislation. ¶11 Unlike in Thomas, where the Court severed the offending provision of the Oklahoma Taxpayer and Citizens Protection Act of 2007, H.B. 1603 encompasses so many different subjects that severance is not an option.5 It would be both dangerous and difficult for this Court to engage in the exercise of severance in this case. By picking and choosing which provisions relate to lawsuit reform and which do not, this Court would essentially become the policy-maker. Policy-making is the job of the Legislature. And although the dissenters argue we should sever the unconstitutional portions of this bill, the separate writing does not provide an analysis of how severance should be accomplished. Additionally, unlike in Thomas, were we to sever all the invalid portions of H.B. 1603, we could not presume the Legislature would have enacted the remaining provisions of the bill without the voided provisions. 6 Conclusion ¶12 This is not the first time we have invalidated a bill in its entirety for violation of the single-subject rule.7 Although we are mindful of the practical consequences of today's decision, we will not sit by and ignore violations of our Constitution. The Legislature should be well aware of the single-subject requirements of the Oklahoma Constitution. We do not doubt that tort reform is an important issue for the Legislature. But the constitutional infirmity of logrolling, which is the basis of this opinion, can only be corrected by the Legislature by considering the acts within the CLRA of 2009 separately.8 We hold that H.B. 1603, commonly known as the Comprehensive Lawsuit Reform Act of 2009, violates the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The bill is unconstitutional and void in its entirety. TRIAL COURT'S ORDER DISMISSING CASE IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶13 Colbert, C.J., Reif, V.C.J., Watt, Edmondson, Combs, and Gurich, JJ., concur. ¶14 Kauger, J., (by separate writing) concurs specially. ¶15 Winchester, J., (by separate writing) and Taylor, J. (joins Winchester) dissent. FOOTNOTES 1 Today this Court also issued an opinion in Timothy Wall v. John S. Marouk, D.O., 2013 OK 36, ____P.3d____, which disposes of Plaintiff's additional argument that the requirement for filing affidavits in malpractice cases was conclusively decided by this Court in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861. Therefore, we will not address the issue in this opinion. 2 Ordinarily, an order dismissing a case is a final, appealable order unless the trial court grants leave to amend the petition to cure the defect. Kelly v. Abbott, 1989 OK 124, ¶ 10, 781 P.2d 1188, 1191. If leave to amend is granted, the order dismissing the case is an interlocutory order and does not become final until the petition is not amended within the time set by the trial court. Id. In this case, the trial court dismissed the action but gave the Plaintiff 30 days to file the affidavit required by 12 O.S. Supp. 2009 § 19. The trial court also certified the order for immediate review and ordered: "If Plaintiff chooses to file a certified interlocutory appeal of this Order, and not file the required affidavit, then the proceedings shall be stayed pending disposition of the interlocutory appeal by separate order to be filed by this Court." Journal Entry Sustaining Defendant's Motion to Dismiss at 2. Rather than filing the affidavit, Plaintiff appealed the order and filed a Petition for Certiorari to Review Certified Interlocutory Order with this Court. 3 Other opinions discussing the single-subject rule include: Nova Health Sys., 2010 OK 21, 233 P.3d 380; Fent, 2009 OK 15, 214 P.3d 799; Weddington, 2008 OK 102, 202 P.3d 143; Fent v. Office of State Finance, 2008 OK 2, 184 P.3d 467; In re: Initiative Petition No. 382, State Question No. 729, 2006 OK 45, 142 P.3d 400; Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605; Morgan v. Daxon, 2001 OK 104, 49 P.3d 687; Campbell, 1993 OK 89, 856 P.2d 255; Johnson v. Walters, 1991 OK 107, 819 P.2d 694. 4 The Defendant argues that this section, section 74, was repealed, so H.B. 1603 is cured of its single-subject defects. Section 74 is not the only section that violates the single-subject rule. However, even if it were, it has not been repealed as the Defendant claims. Section 74 was passed in two different bills in the 2009 session--H.B. 1603 (CLRA of 2009) and H.B. 1598. H.B. 1598 was repealed so as to prevent duplicate statutes. Section 74, as it was enacted in H.B. 1603, remains intact at 70 O.S. 2011 § 6-101.7 and has not been repealed. 5 Although the bulk of the Act in Thomas dealt with discouraging illegal immigration, only one section was found to violate the single-subject rule. Thomas, 2011 OK 53, ¶ 31, 260 P.3d at 1262. The bill had 13 sections, and this Court found Section 13 of the bill, which sought to amend 70 O.S. Supp. 2006 § 3242(A)(1) and (2) so as to deny resident tuition for higher education to those who successfully completed the GED examination, did not relate to the common theme of discouraging illegal immigration and should be severed. Id. ¶ 31, 260 P.3d at 1262. 6 75 O.S. § 11a(1) reads: In the construction of the statutes of this state, the following rules shall be observed: 1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, the provisions of every act or application of the act shall be severable. If any provision or application of the act is found to be unconstitutional and void, the remaining provisions or applications of the act shall remain valid, unless the court finds: a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 7 See Nova Health Sys., 2010 OK 21, 233 P.3d 380 (finding that S.B. 1878, which comprised portions of five separate bills and involved multiple subjects concerning freedom of conscience, obviously violated the single-subject rule and was void in its entirety); Weddington, 2008 OK 102, 202 P.3d 143 (finding that S.B. 1708, which related to uniform laws, was facially contrary to Article 5, § 57 and void in its entirety). 8 8 Although our opinion in Nova Health Systems, 2010 OK 21, 233 P.3d 380, was decided after the CLRA of 2009 was passed, in that case we explicitly told the Legislature that if it believed the subjects involved in a particular bill were important, it should enact those subjects in separate bills. We reiterate that idea today. KAUGER, J. concurring specially: I. INTRODUCTION ¶1 The issue of the legislative amendment to 12 O.S. 2011 §19 in the aftermath of Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, was resolved in Timothy Wall v. John S. Marouk, D.O., 2013 OK 36, --- P.3d ---, which we promulgated today. After we held it to be unconstitutional, I had hoped that if only a small number of sections of the CLRA were infirm and unrelated, they could safely be severed. However, the bill is simply too large, and attempts to address too many subjects, to be reconciled with the requirements of the Okla. Const., art. 5, §57.1 II.SECTION 74 OF THE CLRA VIOLATES THE OKLA. CONST., ART. 5, §57. ¶2 The respondents have conceded that 2009 Okla. Session. Laws ch. 228, sec. 74, might have constituted logrolling. Petitioner charges that because it places limits on a lawyer's representation in school board hearings on teacher terminations, it violates the single subject rule, and renders the CLRA an unconstitutional violation of Okla. Const., art. 5, §57.2 ¶3 Respondent, however, argues that §74 of the CLRA was subsequently repealed, and therefore no longer constitutes a part of the corpus of the legislation contained within the CLRA.3 This argument is also made by the Oklahoma Association of Defense Counsel in its Amicus Curiae brief: The only other section of the Act cited by Petitioner is the portion banning attorneys in certain situations from participating in school employee termination hearings. This section of the law has indisputably been repealed. It is no longer part of the Act, so any question of whether this section made the law unconstitutional is moot.4 Respondent made the same point during the August 30, 2011, hearing on its motion to dismiss, stating that "[t]he provision regarding teachers has been - or, excuse me, regarding due process hearing for teachers has been repealed .… Clearly that argument goes by the wayside."5 The arguments are unconvincing because the language of §74 remains part of the Oklahoma Statutes. It is found at 70 O.S. 2011 §6-101.7.6 III.OTHER PROVISIONS OF THE CLRA ALSO VIOLATE THE OKLA CONST., ART. 5, §57. ¶4 If §74 had been repealed or was by itself severable from the CLRA,7 it is not the only offending provision in the CLRA that renders the Act itself in violation of the Okla. Const., art. 5, §57. In addition to changes to the civil procedure code, 12 O.S. §1 et seq., H.B. 1603 also creates entirely new Acts in other titles, such as the Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and the School Protection Act. ¶5 For example, §§31-41 of the CLRA create the Uniform Emergency Volunteer Health Practitioners Act.8 Sections 33-35 detail the creation of a registration system for volunteer health practitioners who will provide health or veterinary services in the state in the event of an emergency declaration.9 Section 35, in particular, details the requirements a registration system must fulfill to satisfy the new law.10 An examination of §§31-41 reveals a comprehensive new set of laws for new categories of volunteer emergency workers, with no basis in lawsuit reform or civil procedure. ¶6 Other provisions are indicative of the same fatal flaws. Sections 75-83, creating the School Protection Act, create a new criminal offense for making false accusations of criminal conduct against an education employee.11 It is difficult to argue that modifications to the criminal code are germane to the reform of civil procedure. Even if the stated goal is to prevent false accusations, the connection is simply too tenuous to say that the School Protection Act shares the same subject as something like the Uniform Emergency Volunteer Health Practitioners Act. They are not germane to each other, other CLRA provisions, or the subject of the bill, civil procedure. ¶7 The respondent has failed to address any of the other disparate provisions of the CLRA, beyond §74, in its reply brief. During the hearing held on August 30, 2011, the Respondent mentioned12 §25 of the CLRA, which created a Health Care Indemnity Fund Task Force.13 Respondent argued that this particular section was no longer a problem because the statute had already lapsed by its own terms.14 Presumably Respondent was referring to the fact that the provision required the task force to report its findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House of Representatives by May 1, 2011, after which its purpose would be fulfilled.15 ¶8 The various pieces of the CLRA do not reflect a common, closely akin theme or purpose.16 The application of broad, sweeping categories such as civil procedure and lawsuit reform do not change the fact that the Constitution will not allow unrelated legislation to be included in a single enactment simply by the skillful drafting of a broad topic.17 In Nova Health Systems v. Edmondson, 2010 OK 21, ¶3, 233 P.3d 380, we explained the rational for the single subject rule. We said: ... Each subject brought into the deliberation of the legislative department of the government is to be considered and voted on singly, without having associated with it any other measure to give it strength. Experience had shown that measures having no common purpose, and each wanting sufficient support on its merits to secure its enactment, have been carried through legislative bodies and enacted into laws, when neither measure could command or merit the approval of a majority of that body. IV.HISTORY OF THE SINGLE SUBJECT RULE ¶9 Addressing the violation of the single subject rule is a recurring theme in our jurisprudence. At the time of our 2010 holding in Nova Health Systems v. Edmondson, 2010 OK 21, 233 P.3d 380, we had addressed the single subject rule at least seven times over the previous two decades, and four times in three years, in the following cases: Fent v. State of Oklahoma ex. rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, ¶¶10-23, 214 P.3d 799; Fent v. State ex. rel. Office of State Finance, 2008 OK 2, ¶30, 184 P.3d 467; Weddington v. Henry, 2008 OK 102, ¶1, 202 P.3d 143; In Re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶18, 142 P.3d 400; Morgan v. Daxon, 2001 OK 104, ¶1, 49 P.3d 687; Campbell v. White, 1993 OK 89, ¶20, 856 P.2d 255. ¶10 One of the main reasons the logrolling continues to be a problem is the consolidation of multiple unrelated bills together. This was the problem in Nova, where five disparate bills related tangentially to freedom of conscience were consolidated together into one bill.18 If these individual bills, each in themselves concerning only one subject, had been left unconsolidated, then they would likely not have triggered the anti-logrolling provisions of the Oklahoma Constitution. ¶11 For over a hundred years, this Court has considered the provisions of the Okla. Const., art. 5, §57. In 1908, in In Re County Comm'rs of Counties Comprising Seventh Judicial Dist., 1908 OK 207, ¶¶4-5, 98 OK 207, this Court enforced the requirement of the Oklahoma Constitution that bills shall embrace but one subject.19 ¶12 The real problem with logrolling is that it creates a situation where there is only the illusion of choice, where various legislative proposals are amalgamated into a statutory chimera in order to force individual Legislators to vote for all measures if they wish one to see the light of day. It is easy to see why the issue might be confusing. Because the United States Constitution does not have a provision prohibiting logrolling, Congress is permitted to combine various disparate subjects together in one bill and frequently does so. The Oklahoma Legislature may not. ¶13 In Campbell v. White, 1993 OK 89, 856 P.2d 255, this Court found unconstitutional two bills which contained multiple subjects in violation of the Okla. Const., art. 5, §56.20 We stressed the important nature of the Oklahoma Constitution's anti-logrolling provisions and emphasized the reasons for such provisions, which are designed to prevent the enactment of legislation through the combination of unpopular causes with popular legislation on an entirely different subject.21 We further stated that not only does the single subject rule prohibit log-rolling, it also enables the public and the Legislature to understand the scope and effect of pending legislation.22 ¶14 Since Campbell, we have repeatedly addressed violations of the single subject rule. In Morgan v. Daxon, 2001 OK 104, 49 P.3d 687, the Court found a reconciliation bill unconstitutional for violating the anti-logrolling provisions of the Okla. Const., art. 5, §§56 and 57. Again, we addressed the application of the single subject rule in In Re: Initiative Petition No. 382, State Question No. 729, 2006 OK 45, 142 P.3d 400. In that case, we responded to a challenge that an initiative petition addressing the power of eminent domain as well as the enforcement of zoning laws violated the single subject requirement of the Okla. Const., art. 5, §57.23 ¶15 Proponents of Initiative Petition No. 382 argued that previous decisions of this court implied adoption of an expansive test of germaneness that is broad, liberal, and satisfied by all proposed laws but those with the most scattered and disconnected provisions.24 We explained that such a reading is not consistent with the requirements of Okla. Const., art 5, §57, and held that: … seeming inconsistences in our single subject rule jurisprudence melt away when one understands that each case was decided by determining whether the purposes behind the rule were offended. Whether we explicitly stated it or not, the issue is not how similar or "related" any two provisions in a proposed law are, or whether one can articulate some rational connection between the provisions of a proposed law, but whether it appears that either the proposal is misleading or provisions in the proposal are so unrelated that many of those voting on the law would be faced with an unpalatable all-or-nothing choice.25 ¶16 In Fent v. State ex rel. Office of State Finance, 2008 OK 2, 184 P.3d 467, the petitioner argued that an appropriations bill violated the single subject rule because it made multiple special appropriations to several different subjects or objects of state government. We rejected the notion that the subject of the legislation should be tested by broad, expansive themes such as allocating surplus or managing accounts, and once again affirmed the use of the germaneness test we put forward in Campbell.26 ¶17 A year later, in Fent v. State ex rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, 214 P.3d 799, we again addressed violations of the single subject rule, and discussed our previous cases on the subject. We rejected any kind of broad, expansive, and thematic based approach in favor of measuring the germaneness of various bill provisions to each other.27 We reiterated that while bond measures do not necessarily have to be brought individually, at the very least they must have some semblance of relation to each other and must not be misleading or provide the voter or legislator with an all or nothing choice.28 V.GUIDELINES ¶18 Perhaps guidelines with regard to the single subject provision of Okla. Const., art 5, §57 will prevent this Court from having to revisit the issue. This Court interprets the single subject rule using a "germaneness" test.29 The single subject rule requires the following: The provisions of a bill must be related to a single subject. The provisions are related to a single subject if the provisions are germane, relative, and cognate to a readily apparent common theme and purpose.30 A voter or a legislator must be able to make a choice about voting for a bill without being misled, and may not be forced to choose between two unrelated provisions contained in one measure in order to embrace the one they support.31 Legislation may not be made "veto proof" by combining two totally unrelated subjects in one bill.32 A mere functional relationship between provisions is insufficient; rather, the subjects have to have at least a semblance of relation to each other and must not be misleading or provide the voter or legislator with an all or nothing choice.33 ¶19 A culinary example may be more illustrative. If you make a peanut butter cookie, it is apparent that it is a smooth, one flavor cookie. It is still a peanut butter cookie even if you use crunchy peanut butter, because its major flavor is still peanuts. When you add chocolate chips, pecans, coconut, M&M's, raisins, and dried cranberries, the additional discrete ingredients change the homogenous nature of a peanut butter cookie into a jumble of different tastes and textures. It is still a cookie, it is just not a peanut butter cookie. Likewise, the CLRA is still a statute, but it ceased to be a statute for the reform of civil procedure when sections having nothing to do with civil procedure were included. ¶20 The nature of the single subject rule necessarily requires that legislation be examined on a case by case basis.34 The aforementioned guidelines illustrate how legislation can be drafted which satisfies the requirements of Okla. Const., art 5, §57. CONCLUSION ¶21 It is not the role of this Court to determine the wisdom of legislation. It is my hope that in the future the Court will not be forced to invalidate reform legislation because it runs contra to the Oklahoma Constitution. FOOTNOTES 1 The Okla. Const., Art. 5, §57 provides: Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the laws as may not be expressed in the title thereof. 2 2009 Okla. Session. Laws ch. 228, sec. 74 provides: SECTION 74. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 6-101.7 of Title 70, unless there is created a duplication in numbering, reads as follows: An attorney, representative, or other designee of the school district who has represented or represents a school district or the administration of a school district at a hearing held for the purpose of affording due process rights and requirements for an administrator as provided for in Section 6-101.13 of Title 70 of the Oklahoma Statutes, a teacher as provided for in Section 6-101.26 of Title 70 of the Oklahoma Statutes, or a support employee as provided for in Section 6-101.46 of Title 70 of the Oklahoma Statutes or who has been involved or participated in any prehearing actions of the school district with respect to a recommendation for the termination of employment or nonreemployment of an administrator, teacher, or support employee shall not: 1. Conduct or preside as the hearing officer or judge at a due process hearing or hearings; and 2. Attend, advise at, or in any way influence an executive session of the school district board of education that is held in conjunction with a due process hearing or hearings if the attorney, representative, or other designee of the school district conducted or presided over the due process hearing or hearings as the hearing officer or judge. 3 Respondent's Answer Brief, p. 2 4 Amicus Curiae Brief of Oklahoma Association of Defense Counsel, p. 3. 5 Transcript of Proceedings had on August 11, 2011 in the District Court of Tulsa County, 5:13-15. 6 Title 70 O.S. 2011 §6-101.7 provides: An attorney, representative, or other designee of the school district who has represented or represents a school district or the administration of a school district at a hearing held for the purpose of affording due process rights and requirements for an administrator as provided for in Section 6-101.13 of Title 70 of the Oklahoma Statutes, a teacher as provided for in Section 6-101.26 of Title 70 of the Oklahoma Statutes, or a support employee as provided for in Section 6-101.46 of Title 70 of the Oklahoma Statutes or who has been involved or participated in any prehearing actions of the school district with respect to a recommendation for the termination of employment or nonreemployment of an administrator, teacher, or support employee shall not: 1. Conduct or preside as the hearing officer or judge at a due process hearing or hearings; and 2. Attend, advise at, or in any way influence an executive session of the school district board of education that is held in conjunction with a due process hearing or hearings if the attorney, representative, or other designee of the school district conducted or presided over the due process hearing or hearings as the hearing officer or judge. 7 Respondent asserts that even if Section 74, or any other part of the CLRA, were unconstitutional, they could be severed, allowing the CLRA itself to remain valid and in force. Respondent's Reply Brief, p. 5. In Thomas v. Henry, 2011 OK 53, ¶31, 260 P.3d 1251, we held that severability was a possibility where the valid provisions of an act were not essentially and inseparably connected with and dependent on the invalid portion. 8 2009 Okla. Session. Laws ch. 228, secs. 31-42. 9 2009 Okla. Session. Laws ch. 228, secs. 33-35, see note 13, infra. 10 2009 Okla. Session. Laws ch. 228, secs. 33-35 provides: SECTION 35. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 684.18 of Title 63, unless there is created a duplication in numbering, reads as follows: A. To qualify as a volunteer health practitioner registration system, a system must: 1. Accept applications for the registration of volunteer health practitioners before or during an emergency; 2. Include information about the licensure and good standing of health practitioners which is accessible by authorized persons; 3. Be capable of confirming the accuracy of information concerning whether a health practitioner is licensed and in good standing before health services or veterinary services are provided under the Uniform Emergency Volunteer Health Practitioners Act; and 4. Meet one of the following conditions: a. be an emergency system for advance registration of volunteer health practitioners established by a state and funded through the Health Resources Services Administration under Section 319I of the Public Health Services Act, 42 U.S.C., Section 247d-7b, b. be a local unit consisting of trained and equipped emergency response, public health, and medical personnel formed pursuant to Section 2801 of the Public Health Services Act, 42 U.S.C., Section 300hh, c. be operated by a: (1) disaster relief organization, (2) licensing board, (3) national or regional association of licensing boards or health practitioners, (4) health facility that provides comprehensive inpatient and outpatient health-care services, including a tertiary care and teaching hospital, or (5) governmental entity, or d. be designated by the State Department of Health as a registration system for purposes of the Uniform Emergency Volunteer Health Practitioners Act. B. While an emergency declaration is in effect, the State Department of Health, a person authorized to act on behalf of the Department, or a host entity may confirm whether volunteer health practitioners utilized in this state are registered with a registration system that complies with subsection A of this section. Confirmation is limited to obtaining identities of the practitioners from the system and determining whether the system indicates that the practitioners are licensed and in good standing. C. Upon request of a person in this state authorized under subsection B of this section, or a similarly authorized person in another state, a registration system located in this state shall notify the person of the identities of volunteer health practitioners and whether the practitioners are licensed and in good standing. D. A host entity shall not be required to use the services of a volunteer health practitioner even if the practitioner is registered with a registration system that indicates that the practitioner is licensed and in good standing. 11 2009 Okla. Session. Laws ch. 228, secs. 75-83. Specifically, 2009 Okla. Session. Laws ch. 228, sec. 78 provides: SECTION 78. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 6-143 of Title 70, unless there is created a duplication in numbering, reads as follows: A. Except as otherwise provided in this section, any person eighteen (18) years of age or older who acts with specific intent in making a false accusation of criminal activity against an education employee to law enforcement authorities or school district officials, or both, shall be guilty of a misdemeanor and, upon conviction, punished by a fine of not more than Two Thousand Dollars ($2,000.00). B. Except as otherwise provided in this section, any student between seven (7) years of age and seventeen (17) years of age who acts with specific intent in making a false accusation of criminal activity against an education employee to law enforcement authorities or school district officials, or both, shall, upon conviction, at the discretion of the court, be subject to any of the following: 1. Community service of a type and for a period of time to be determined by the court; or 2. Any other sanction as the court in its discretion may deem appropriate. C. The provisions of this section shall not apply to statements regarding individuals elected or appointed to an educational entity. D. This section is in addition to and does not limit the civil or criminal liability of a person who makes false statements alleging criminal activity by another. 12 Transcript of Proceedings had in the District Court of Tulsa County on August 30, 2011, at 5:15-19. 13 2009 Okla. Session. Laws ch. 228, sec. 25 provides: SECTION 25. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 2211 of Title 36, unless there is created a duplication in numbering, reads as follows: A. There is hereby created the "Health Care Indemnity Fund Task Force". B. The task force shall study a mechanism for creating a health care indemnity fund for purposes of paying a portion of damages awarded by the court or settled and approved by the court in professional negligence cases against physicians as defined in subsection I of Section 24 of this act. The task force shall study the following issues: 1. Funding, expenses and investments; 2. Capping the fund at a rate of Twenty Million Dollars ($20,000,000.00) annually; 3. Limiting damage award payments from the fund to: a. professional negligence cases against physicians where the noneconomic damage cap has been removed, and b. only that amount of damages that exceed the noneconomic damage cap of Four Hundred Thousand Dollars ($400,000.00) per occurrence; 4. Purchase of reinsurance; 5. Professional liability insurance coverage requirements, in an amount of no less than One Million Dollars ($1,000,000.00) for physicians; 6. Qualifications for coverage under the fund; 7. Applicant, compliance, payment and rating procedures; and 8. Any other issues necessary for creating a health care indemnity fund. C. The task force shall be composed of eight (8) members as follows: 1. The Oklahoma Insurance Commissioner or designee; 2. Three members appointed by the Governor; 3. Two members appointed by the President Pro Tempore of the Senate, one of whom shall be a physician; and 4. Two members appointed by the Speaker of the House of Representatives, one of whom shall be a physician. D. The task force may meet as often as necessary to perform the duties imposed upon it. Members of the task force shall receive no compensation for their services, but shall receive travel reimbursement as follows: 1. Legislative members of the task force shall be reimbursed for necessary travel expenses incurred in the performance of their duties in accordance with the provisions of Section 456 of Title 74 of the Oklahoma Statutes; and 2. Nonlegislative members of the task force shall be reimbursed for necessary travel expenses incurred in the performance of their duties in accordance with the State Travel Reimbursement Act. E. The task force shall be authorized to hire actuarial or any other professional services necessary to perform the duties imposed on it. F. A quorum of the task force shall be required for any final action, and shall report its findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House of Representatives not later than May 1, 2011. 14 Transcript of Proceedings had in the District Court of Tulsa County on August 30, 2011, at 5:15-19. 15 2009 Okla. Session. Laws ch. 228, sec. 25(F). 16 Thomas v. Henry, see note 7, supra at ¶27. 17 Campbell v. White, 1993 OK 89, ¶14, 856 P.2d 255. 18 Nova Health Systems v. Edmondson, 2010 OK 21, ¶3, 233 P.3d 380. 19 In In Re County Comm'rs Comprising Seventh Judicial Dist., 1908 OK 207, ¶¶4-5, 98 OK 207, we held that: [t]he abuses which called such provision into existence are clearly understood, and are twofold. Each subject brought into the deliberation of the legislative department of the government is to be considered and voted on singly, without having associated with it any other measure to give it strength. Experience had shown that measures having no common purpose, and each wanting sufficient support on its merits to secure its enactment, have been carried through legislative bodies and enacted into laws. When [sic] neither measure could command or merit the approval of a majority of that body. The other abuse against which this provision was levied was to prevent matters foreign to the main objects of a bill from finding their way into such enactment surreptitiously. 20 The Okla. Const., art. 5, §56 concerns general appropriations bills, but contains a single subject provision similar in nature to Okla. Const., art. 5, §57. The Okla. Const., art. 5, §56 provides: § 56. General appropriation bills - Salaries - Separate appropriation bills. The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject. 21 Campbell v. White, see note 17, supra at ¶7. 22 Campbell v. White, see note 17, supra. 23 In Re: Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶10-12, 142 P.3d 400. 24 In Re: Initiative Petition No. 382, State Question No. 729, see note 23, supra at ¶13. 25 In Re: Initiative Petition No. 382, State Question No. 729, see note 23, supra at ¶14 (citing In Re: Initiative Petition No. 314, 1980 OK 174, ¶¶59-60, 625 P.2d 595). 26 Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶¶22-23, 184 P.3d 467. 27 Fent v. State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, ¶¶20-21, 214 P.3d 799. 28 Fent v. State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority, see note 27, supra at ¶24. 29 Fent v. State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority, see note 27, supra at ¶16. 30 Compare Fent v. State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority, see note 27, supra at ¶16 (Senate Bill 1374 violated the germaneness requirement of the single subject rule of art. 5, §57 of the Oklahoma Constitution because it addressed the separate subjects of bond issuance for: 1) the Native American Cultural and Educational Authority; 2) the State's Oklahoma Conservation Commission; and 3) a local River Parks Authority.) with Edmondson v. Pearce, 2004 OK 23, ¶45, 91 P.3d 605 (No violation of the single-subject requirement where Oklahoma's anti-cockfighting Act was unequivocally concerned with one subject and the Act was a unified, germane whole, having as its central purpose the prevention of cruelty to birds by outlawing cockfighting and related activities and providing, after a criminal conviction, for the forfeiture of birds or equipment used in any cockfighting endeavor.) 31 In Re Initiative Petition No. 382, see note 23, supra at ¶15 (We held that a ballot initiative proposing a new statute limiting the power of public bodies to take private property by eminent domain and in the same initiative also requiring just compensation to be paid to landowners negatively affected by a zoning law "presents a voter with exactly the sort of choice the single subject rule was enacted to prevent.") 32 Thomas v. Henry, see note 7, supra at ¶¶29-31 (Insertion of a single non-germane provision restricting those who completed a GED from obtaining in-state tuition rates for higher education, into a bill purporting to control illegal immigration, violated the single subject rule.) 33 Fent v. State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority, see note 27, supra at ¶¶19-21. (We reiterated that this Court has rejected a broad, thematic approach to the single-subject requirement.) 34 Examination by this Court of a particular piece of legislation, at a particular time, is not always appropriate. In Fent v. Fallin et. al., 111,199 (Okla. 2013), we declined to assume original jurisdiction in a challenge to a bill authorizing a statewide charter school and designating a separate $30 million appropriation to public schools. The Supreme Court is not constrained to exercise its original jurisdiction in any case; whether it does so is always a matter of discretion. Application of Sewer Improvement Dist. No. 1, 1950 OK 64, ¶8, 216 P.2d 303. In exercising its discretion, the Court is mindful of the limited role of its original jurisdiction. Kitchens v. McGowen, 1972 OK 140, 503 P.2d 218. A decision on the part of this Court not to accept original jurisdiction should not be taken as a decision on the merits in favor of one party or the other. A request that this Court assume original jurisdiction is not the same as an appeal. The right of appeal in Oklahoma is a constitutional right guaranteed by the Constitution. This cannot be taken away by any act of the Legislature. Peterman v. Chapman, 1921 OK 202, ¶5, 200 P. 776. WINCHESTER, J., with whom Taylor, J. joins, dissenting: ¶1 I respectfully dissent. This opinion demonstrates how difficult the single-subject rule is to explain with the precision necessary to instruct a legislative body concerning the rule's application. House Bill 1603 is commonly called the Comprehensive Lawsuit Reform Act of 2009. Its purpose is tort reform. The majority opinion recites the number of sections and some of the subjects addressed within H.B. 1603. The majority opinion states that the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice. It says this Court will not pick and choose which provisions of the bill are germane and cites Thomas v. Henry, 2011 OK 53, 260 P.3d 1251, as a comprehensive review of our case law regarding the single-subject rule. The majority opinion explains that in Thomas this Court severed the offending provisions of the Oklahoma Taxpayer and Citizens Protection Act of 2007, but that bill had only 13 sections so the Court easily discerned the sections related to discouraging illegal immigration, the subject of that act. ¶2 Early after statehood, the Supreme Court in Griffin v. Thomas, 1922 OK 134, ¶ 17, 206 P. 604, 609, quoted with approval from 25 R.C.L.1, § 88, p. 842: "The term 'subject' as used in these provisions is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality. . . .This constitutional provision does not contain any limitation on the comprehensiveness of the subject, which may be as comprehensive as the Legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several; it may include innumerable minor subjects, provided that all the minor subjects, when combined, form only one general subject or topic." ¶3 The majority opinion gives little guidance to the legislature regarding why the law found in H.B. 1603 is unconstitutional. What is the lesson from the majority's analysis of Thomas v. Henry and the 13 sections the Court examined within it? Is this Court willing to examine a "comprehensive" bill and consider severing sections if the bill has only 13 sections, but not if it has 90? ¶4 I believe it more likely that the legislature and the public understood the common themes and purposes embodied in the legislation; it was tort reform. The vote in the House of Representatives was 86 in favor of the bill and 13 opposed. The Senate voted 42 in favor of the bill and 5 against it. Governor Brad Henry signed the bill. This bill appears to have had overwhelming support of two branches of government. ¶5 Although the majority recites case law that "a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality" and that "[e]very presumption is to be indulged in favor of the constitutionality of a statute," the majority's result does not appear to meet that burden or fulfill that presumption. Requiring affidavits in professional malpractice cases, 12 O.S.2011, § 19, appears to me to be both related and germane to tort reform.2 Without deciding the wisdom, need, or desirability of H.B. 1603,3 I have no trouble concluding that the affidavit requirement of § 19 has a close relationship to the title of the Act, which subject is comprehensive lawsuit reform. ¶6 In addition, this Act has a severability clause, as did the Oklahoma Taxpayer and Citizens Protection Act of 2007, which this Court reviewed for a violation of the single-subject rule in Thomas. Even if the H.B. 1603 did not have a severability clause, 75 O.S.2011, § 11a specifically provides for severance if any of the provisions of an act are found to be unconstitutional.4 ¶7 Are topics such as "civil procedure" or "tort reform" too broad to be encompassed within one bill? In 1978, the legislature passed the Civil Procedure--Criminal Procedure--Evidence Code.5 It had a total of 78 sections. It is likely that some of the legislators who voted in favor of the bill compromised to secure its passage. It did involve one subject, evidence. The Uniform Commercial Code was passed by the legislature in 1961.6 It had 10 articles and a total of 368 sections. Its articles included Sales, which contains 97 separate sections; Commercial Paper; Bank Deposits and Collections; Letters of Credit; Bulk Transfers; Warehouse Receipts and Special Provisions; Investment Securities; Secured Transactions, Sales of Accounts, Contract Rights and Chattel Paper; and a Repealer Section that removed amended statutes throughout titles 6, 9, 13, 15, 18, 23, 24, 42, 46, 48, 55, and 60. When considering all that it encompasses, the Uniform Commercial Code likely resulted in compromises by legislators to pass an important and significant piece of legislation. ¶8 Logrolling is the "legislative practice of including several propositions in one measure or proposed constitutional amendment so that the legislature or voters will pass all of them, even though these propositions might not have passed if they had been submitted separately."7 If this is a description of the "single-subject" rule, the legislature would have substantial difficulty passing any comprehensive legislation including any uniform codes that are generally adopted among the states. One recent article commented that although the single-subject rule "is a noble attempt to reign in state legislatures and encourage the passage of more coherent and uniform laws supported in fact by majority votes, the implementation of the states' various single subject rules has had mixed success, at best."8 It further observed: "The Oklahoma Supreme Court defines a 'single subject' as one that has 'a readily apparent common theme and purpose.' Likewise, in Minnesota, the courts have found that a single subject means 'one general subject' and in Alaska, it means 'one general idea.' Similarly, in Alabama, 'one subject' means that the provisions are referable to and cognate of the bill's subject. No doubt, with definitions as amorphous as these, it is easy to see how determinations of whether a subject is indeed 'single' can be based on a number of subjective factors including possibly the popularity or necessity of the legislation." [Footnotes omitted.] ¶9 Legislation requires some compromise. At times, even the wording of a single statute on a single subject may result in an all-or-nothing choice for those voting on it. The single-subject dilemma leads me to conclude that this Court should adopt a more deferential approach toward the rule. Based on the majority's present opinion, statutes that were enacted in a comprehensive bill, and that have remained as law for years could be found unconstitutional. The legislature will have wasted its time in working on any comprehensive legislation. Such legislation may be declared unconstitutional immediately, or worse, after a few years codified in the official state statutes a whole comprehensive bill will be struck and cause the chaos that will inevitably follow this opinion. Court opinions containing an overly restrictive interpretation of the single-subject rule will likely have a chilling effect on the legislative process. The result will be an exponential number of bills filed along with an expanded legislative process but with no greater assurance the legislation will pass the single-subject test. The severance clause is included to allow the courts to remove unconstitutional sections and still preserve the legislation. ¶10 I would find that H.B. 1603 does not violate the single subject rule. FOOTNOTES 1 25 William Mark McKinney &Burdett Alberto Rich, RULING CASE LAW 842 (1919). 2 "Oklahoma adheres to the germaneness test and the most relevant question under such analysis is whether a voter (or legislator) is able to make a choice without being misled and is not forced to choose between two unrelated provisions contained in one measure. In re Initiative Petition No. 382, 2006 OK 45, ¶9, 142 P.3d 400,405." Thomas v. Henry, 2011 OK 53, ¶ 26, 260 P.3d 1251, 1260. 3 Where legislation is constitutionally valid, this Court is not authorized to delve into the wisdom, need, or desirability of a legislative enactment. Oklahoma Industries Authority v. Barnes, 1988 OK 98, ¶ 14, 769 P.2d 115, 119. 4 Title 75 O.S.2011, § 11a(1) provides: "In the construction of the statutes of this state, the following rules shall be observed: "1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, the provisions of every act or application of the act shall be severable. If any provision or application of the act is found to be unconstitutional and void, the remaining provisions or applications of the act shall remain valid, unless the court finds: "a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or "b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. "2. For acts enacted prior to July 1, 1989, whether or not such acts were enacted with an express provision for severability, it is the intent of the Oklahoma Legislature that the act or any portion of the act or application of the act shall be severable unless: "a. the construction of the provisions or application of the act would be inconsistent with the manifest intent of the Legislature; "b. the court finds the valid provisions of the act are so essentially and inseparably connected with and so dependent upon the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or "c. the court finds the remaining valid provisions standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 5 1978 Okla.Sess.Laws, ch. 285, §§ 101 through 1103. 6 1961 Okla.Sess.Laws, pp. 69 through 182. 7 Black's Law Dictionary (Westlaw 9th ed. 2009) 8 Stanley Kaminski and Elinor Hart, Log Rolling versus the Single Subject Rule, 80 USLW 1156, 02/28/2012, http://www.duanemorris.com/articles/static/kaminski_hart_bloombergbna_022812.pdf

c076e240-a7d7-4d9a-bfcb-b98a66a7e433

In the matter of H.M.W.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF H.M.W.2013 OK 44Case Number: 110066Decided: 06/25/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF H.M.W. and K.D.W., Deprived Children, ADAM WEST, Appellant,v.STATE OF OKLAHOMA, Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV,ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,STATE OF OKLAHOMA HONORABLE GREGORY J. RYAN, TRIAL JUDGE ¶0 Imprisoned Father refused a writ of habeas corpus to attend a jury trial on the issue of terminating his parental rights. When the case was called for trial, Father's counsel requested jury trial in absentia. In response, the State requested termination by default. Without ruling on these requests, the trial court heard testimony without a jury concerning the best interests of the children and potential harm to the children from continuing Father's parental relationship. At the conclusion of the evidence, the trial court denied the request for jury trial in absentia and granted the State's request for default termination. The Court of Civil Appeals affirmed the termination, but ruled that Father's refusal to appear resulted in a consent termination under 10A O.S.2009, § 1-4-905(A)(5), rather than a default judgment. Father timely sought certiorari. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND THIS CASE IS REMANDED FOR NEW TRIAL. Sherry J. Neal, Oklahoma City, Oklahoma, for Appellant,Valerie L. Baker, Assistant District Attorney, Oklahoma County, Oklahoma City, Oklahoma, for Appellee. REIF, V.C.J.: ¶1 This case concerns the termination of the parental rights of an imprisoned father without a jury trial. Adam West was in prison at the time his children, H.M.W. and K.D.W., were removed from their mother and adjudicated deprived. The case was subject to the Oklahoma and Federal Indian Child Welfare Acts based on the children's eligibility for membership in the Cherokee Nation. The Cherokee Nation entered an appearance and participated in the proceedings. After mother relinquished her rights, the State sought to terminate Mr. West's parental rights, contending that the length of time remaining on Mr. West's sentence was detrimental to continuing the parent/child relationship. When Mr. West refused a writ of habeas corpus to attend the jury trial set for June 7, 2011, the trial court proceeded to terminate Mr. West's parental rights without a jury trial. The trial court did so despite a request by Mr. West's counsel for a jury trial in absentia. The Cherokee Nation did not object to this action by the trial court. ¶2 The trial court concluded that Mr. West's failure to appear after the means to attend had been provided, supported termination by default without the need for a jury trial. The trial court did hear testimony from the Department of Human Services case worker and the Cherokee Nation representative, both of whom recommended termination. The Court of Civil Appeals upheld the termination without a jury trial, but ruled Mr. West's failure to appear constituted consent to termination as provided in 10A O.S.Supp.2009, § 1-4-905(A)(5) (now 10A O.S.2011, § 1-4-905(A)(5)). Upon review, we find that § 1-4-905(A)(5) does apply, but conclude that Mr. West was entitled to a jury trial in absentia as provided in this statute. ¶3 Prior to the date of trial, Mr. West was served with summons containing the notice prescribed by § 1-4-905(A)(2). This notice states that a parent's failure to appear at the proceeding set forth in the notice "constitutes consent to the termination of your parental rights." However, this notice does not indicate that termination will automatically result in the event a parent fails to appear. The statutory notice simply advises that the parent who fails to appear "may lose all legal rights." The "consent to termination" that arises from failure to appear is more like a stipulation that a ground exists to support termination, as opposed to being the complete relinquishment of parental rights that the Court of Civil Appeals found it to be. ¶4 More importantly, § 1-4-905 is not the only statute to address the failure of a parent to appear at a previously set jury trial. The Legislature has also provided that "A party who requests a jury trial and fails to appear for such trial, after proper notice and without good cause, may be deemed by the court to have waived the right to be present at such trial." 10A O.S.2011, § 1-4-502(2). This statute also directs, in pertinent part, that "a jury trial shall be granted unless waived." ¶5 Further Legislative intent to provide jury trial even in cases where a parent does not personally appear is found in 10A O.S.2011, § 1-4-503 (A)(4). This statute permits any proceeding held pursuant to the Oklahoma Children's Code to be conducted via teleconference communications. In such cases, the attorney representing the absent party must personally appear at the hearing. Clearly, the Legislature favors the decision of termination cases by jury trial, even in cases where the affected parent does not personally appear. ¶6 In upholding the trial of this matter without a jury, the Court of Civil Appeals focused on the fact that Mr. West had not expressly instructed his attorney to proceed in absentia, as well as his lack of communication to assist counsel in the trial of the case. However, such express instruction and communication are not required to preserve a parent's right to have a jury determine whether the State has met its burden of proof on critical issues other than grounds for termination. For example, 10A O.S.2011, § 1-4-904(A)(2) requires a showing that termination is in the best interests of the child or children, and this must be proven by clear and convincing evidence. In the Matter of S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080, 1082. Also, in cases under the State and Federal Indian Child Welfare Acts, the State must prove beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child. In re T.L., 2003 OK CIV APP 49, ¶ 12, 71 P.3d 43, 44. These evidentiary requirements alone militate against termination based on default or implied consent, and favor liberal application of the statutory policy that "a jury trial shall be granted unless waived." ¶7 Although clearly detrimental to his own interests, Mr. West's conduct did not constitute a waiver of jury trial nor an objection to jury trial in absentia. Rather than dispense with a jury trial altogether, the trial court should have "deemed [Mr.West] to have waived the right to be present at [the jury] trial" as provided in § 1-4-502(2). This was the course that Mr. West's counsel timely requested on his behalf. ¶8 The case at hand is strikingly similar to In the Matter of K.W. and K.L., 2006 OK CIV APP 40, 134 P.3d 911. In this case, the mother failed to appear for a jury trial on the State's petition to terminate her parental rights. Id. ¶ 4, 134 P.3d at 912. Her court appointed counsel did appear. Id. The trial court conducted a hearing in chambers without a jury and permitted the State to present evidence in support of the petition to terminate. Id. ¶ 5, 134 P.3d at 912. On the record, the trial court consequently terminated mother's parental rights. Id. ¶9 On appeal, mother argued, inter alia, that (1) the trial court erred in denying her a jury trial, (2) she could not be deprived of her right to jury trial absent her express and voluntary waiver of that right, and (3) her absence due to late arrival did not constitute an express waiver. Id. ¶ 7, 134 P.3d at 912. The Court of Civil Appeals agreed with mother on all counts. Id. ¶10 Relying primarily on A.E. v. State, 1987 OK 76, 743 P.2d 1041, the Court of Civil Appeals observed that parental rights are too precious to be terminated without the full panoply of protections afforded by the Oklahoma Constitution, including the right to trial by jury assured by Article 2, Section 19 of the Oklahoma Constitution. Id. ¶ 8, 134 P.3d at 912. The Court further observed that an asserted right to jury trial in a termination case cannot be denied absent an express voluntary waiver. Id. Failure to appear at the time of trial does not constitute a waiver, particularly where the absent party is represented by counsel and counsel appears for trial. Id. ¶ 9, 134 P.3d at 913. ¶11 The Court of Civil Appeals vacated the termination of mother's parental rights because it was entered in the non-jury proceeding in disregard of a demand for jury trial and without a voluntary, express waiver of the right to jury trial. Id. ¶¶ 9-10, 134 P.3d at 913. The court remanded the case for new trial. Id. ¶ 10,134 P.3d at 913. ¶12 We cite approvingly the foregoing Court of Civil Appeals opinion in deciding the case at hand, because it sets forth the law by which to review the trial court's decision to terminate Mr. West's parental rights without a jury trial. In doing so, we are cognizant that this Court has looked beyond the general due process complaint argued by Mr. West on appeal and on certiorari. We have done so for two important reasons. ¶13 First, a violation of the right to jury trial not only implicates due process, but presents a fundamental constitutional issue that is reviewable de novo. Fields v. Saunders, 2012 OK 17, ¶ 13, 278 P.3d 577, 582 (citation omitted). Second, courts have a duty to enforce strict observance of the constitutional and statutory provisions designed to preserve inviolate the right to and purity of jury trial. Id. ¶ 10, 278 P.3d at 581 (citation omitted). Legislation like 10A O.S.2011, § 1-4-905(A)(5) that could be read to limit the right to jury trial must be construed strictly, resolving all doubt in favor of the right. See A.E. v. State, 1987 OK 76, ¶ 22, 743 P.2d at 1048. Oklahoma law recognizes that a surrender of the right to jury trial can occur only by voluntary consent or waiver; it cannot be abrogated arbitrarily by a court. Id. ¶14 In conclusion, we hold that the trial court erred in terminating Mr. West's parental rights without a jury trial, and the Court of Civil Appeals likewise erred in affirming that judgment. Accordingly, we vacate the opinion of the Court of Civil Appeals, reverse the trial court's judgment terminating Mr. West's parental rights and remand for a new trial. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVILAPPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND THIS CASE IS REMANDED FOR NEW TRIAL. ¶15 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COMBS, and GURICH, JJ., concur. ¶16 TAYLOR, J., dissents.

3259e231-5e6c-4b6e-967b-115d082d749d

Miami Business Services, LLC v. Davis

oklahoma

Oklahoma Supreme Court

MIAMI BUSINESS SERVICES, LLC v. DAVIS2013 OK 20Case Number: 111141Decided: 04/02/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MIAMI BUSINESS SERVICES, LLC, an Oklahoma Limited Liability Company, Petitioner,v.THE HONORABLE LISA DAVIS, Respondent, And ASSET GROUP, INC., a California Corporation; J2ES, Inc., an Oklahoma Corporation; JENNIFER FOGG, individually, and JEANNA SELLMEYER, Real Parties In Interest. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF MANDAMUS Honorable Lisa Davis, Trial Judge. ¶0 After petitioner filed suit it moved to disqualify counsel of real parties in interest on the grounds of conflict of interest. The trial judge denied petitioner's motion and it appealed. We recast petitioner's appeal as an application for original jurisdiction and petition for mandamus. We hold that denial of a motion to disqualify is immediately appealable as a final order affecting the substantial rights of a party pursuant to 12 O.S. 2011 §953 and that the addition of Comment 3 to Rule 1.9 of the Oklahoma Rules of Professional Conduct did not alter the requirement for an evidentiary hearing on motions to disqualify counsel for conflicts of interest based upon possession of confidential information. ORIGINAL JURISDICTION IS ASSUMED; PETITION FOR WRIT OF MANDAMUS GRANTED. Conly J. Schulte, Martha L. King, Eduardo A. Provencio, Louisville, Colorado, for Petitioner/Appellant.Samuel R. Fulkerson, Oklahoma City, Oklahoma, for Petitioner/Appellant.Thomas G. Wolfe, Catherine L. Campbell, Oklahoma City, Oklahoma, for Respondents/Appellees.Michael D. Germain, Irvine, California, for Respondents/Appellees. KAUGER, J: ¶1 Petitioner, Miami Business Services LLC (Miami), and Real Parties in Interest were involved in a joint venture. The law firm of Phillips Murrah, P.C. (Phillips) served as general counsel for Miami as well as Real Parties in Interest and their joint venture. Over the course of that joint venture, Fogg, one of the defendants, acted as the Chief Operating Officer (COO) of Miami and acted as the principal in the real party in interest business entities. While COO of Miami, Fogg sought counsel from Phillips regarding issues affecting Miami's operations and for work undertaken by Real Parties in Interest and the joint venture. ¶2 Miami terminated Fogg from her role as its COO in October, 2010. Subsequent to Fogg's termination, Miami brought suit against Real Parties in Interest, including Fogg, for breach of fiduciary duty, fraud, breach of contract, and civil conspiracy. Phillips entered its appearance in the suit on behalf of the Real Parties in Interest. Miami then filed a motion to disqualify Phillips, claiming that Phillips had a conflict of interest which violated Rules 1.71 and 1.92 of the Oklahoma Rules of Professional Conduct, stemming from Phillips' involvement with both Miami and Real Party in Interest AGI. FACTS AND PROCEDURAL HISTORY ¶3 The trial court held a hearing on Miami's Motion for Disqualification of Phillips on August 17, 2012. Prior to the hearing, the parties filed several briefs on the disqualification issue. The affidavits, documents, and other factual materials attached to the parties' motions were discussed during the hearing. The trial court decided to take the matter under advisement and requested an in camera inspection of Phillips' billing records for the time that Fogg served as COO of Miami. ¶4 After reviewing the submitted documents, the judge overruled Miami's motion to disqualify Phillips in an order filed on September 11, 2012. The order did not contain any findings of fact or conclusions of law, but it did list the briefs and documents reviewed by the trial court prior to making its decision.3 ¶5 Miami appealed the trial court's denial of its motion on October 10, 2012. The Real Parties in Interest filed a motion to dismiss the appeal, contending that an order denying a motion to disqualify counsel was a non-appealable interlocutory order. On October 15, 2012, this Court issued an Order directing Miami to show cause why the appeal should not be dismissed for lack of an appealable order, because an order denying a motion to disqualify an attorney appeared to be a non-appealable interlocutory order. ¶6 In response to this Court's show cause order, Miami argued that: 1) the order affected a substantial part of the merits of the case and thus qualified as a final order under 12 O.S. 2011 §953;4 2) that statutes granting a right to appeal must be liberally construed, and they should be construed for uniform application; and 3) the denial of the disqualification motion affected Miami's substantial right as much as an order granting disqualification would affect the party who loses its attorney. Miami contends that if an order disqualifying an attorney is appealable, then an order which refuses to disqualify an attorney should also be appealable. ¶7 On December 10, 2012, this Court issued an order denying Appellees' motion to dismiss the appeal, and recast the cause as an application to assume original jurisdiction and petition for writ of mandamus. This court ordered Miami to file an application, brief, and appendix in accordance with Rule 1.1915 of the Oklahoma Supreme Court Rules and ordered the case to proceed in accordance with that rule. ¶8 In its Application to Assume Original Jurisdiction and Petition for Writ of Mandamus, Miami argues that this Court possesses original jurisdiction over this matter based on its power over the practice of law in the state and over promulgating the Rules which set forth the standards for the practice of law in Oklahoma. Miami argues that a comment in the current version of Rule 1.96 of the Oklahoma Rules of Professional Conduct is at odds with current Oklahoma case law regarding the necessity of an evidentiary hearing on a Motion for Disqualification of counsel. Miami contends that without findings or a detailed basis for the trial court's order denying disqualification of counsel, Miami is deprived of any substantive basis for appeal, and is left with no meaningful way to challenge the veracity of the process the district court employed, and no way to challenge the factual and legal findings that serve as the basis for the Court's ruling. ¶9 Arguing that no other remedy or relief is available, Miami asks this Court to issue a Writ of Mandamus to overturn the district court's September 11, 2012, Order Overruling Motions denying Miami's Motion for Disqualification and to direct the district court on the proper application of the current version of the Oklahoma Rules of Professional Conduct regarding the necessity of an evidentiary hearing on a motion to disqualify. I. THE DENIAL OF A MOTION TO DISQUALIFY OPPOSING COUNSEL IS IMMEDIATELY REVIEWABLE BECAUSE IT IS A FINAL ORDER PURSUANT TO 12 O.S. 2011 §953. ¶10 This Court has previously ruled that an order granting a motion to disqualify counsel is a final order subject to appellate review under the terms of 12 O.S. 2011 §953.7 Historically under Oklahoma law, before the trial court can determine that an attorney should be disqualified based on conflict of interest or improper possession of confidential information, it must hold an evidentiary hearing and make a specific factual finding in its order of disqualification that the attorney had knowledge of material and confidential information.8 When reviewing the order, we review the trial court's findings of fact for clear error and carefully examine de novo the trial court's application of ethical standards.9 ¶11 This court has long recognized the importance of a litigant's ability to hire and select her or his own counsel for legal services, acknowledging in Bancroft v. Board of Governors of Registered Dentists,1949 OK 216, ¶7, 210 P.2d 66, that even in a non-criminal matter respondent was still entitled to have counsel of his own choosing.10 In Arkansas Valley State Bank v. Phillips, 2007 OK 78, ¶12, 171 P.3d 899, we stated regarding this right: … [A] party litigant in a civil proceeding still has a fundamental right to employ and be heard by counsel of his or her own choosing. The right to select counsel without state interference is implied from the nature of the attorney-client relationship in our adversarial system of justice, where an attorney acts as the personal agent of the client and not the state. It is also grounded in the due process right of an individual to make decisions affecting litigation placing his or her property at risk. An individual's decision to employ a particular attorney can have profound effects on the ultimate outcome of litigation. Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered. (Citations omitted). However, this court has additionally emphasized that the right to select one's own counsel is not absolute.11 As we explained in Arkansas, supra: A litigant's choice of counsel may be set aside under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process. This most often arises where an attorney's compliance with ethical standards of professional responsibility are challenged. It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law, and in doing so, to preserve public confidence in the bar and the judicial process. However, motions to disqualify counsel for failure to comply with the Rules of Professional Conduct are not to be used as procedural weapons. Disqualification is such a drastic measure that it should be invoked if, and only if, the Court is satisfied that real harm is likely to result. (Citations omitted). ¶12 While disqualification of counsel is a drastic measure, it is used when necessary to preserve the integrity of the judicial process. The standard for disqualifying counsel is whether real harm to the integrity of the judicial process is likely to result if counsel is not disqualified.12 This is a high standard to meet13 and the burden rests with the moving party to establish the likelihood of such harm by a preponderance of the evidence.14 If disqualification is to be based on an alleged conflict of interest or improper possession of confidential information, then we have required the trial court to hold an evidentiary hearing and make specific findings that the attorney whose disqualification is sought had knowledge of material and confidential information.15 ¶13 If preservation of the integrity of the judicial process is sufficient reason for the appellate court to review a motion granting disqualification, it should also serve as sufficient reason to review a motion denying disqualification. The importance of a person's right to the counsel of their choice should not be underestimated, but neither should the right of an opposing party to question the appropriateness of that counsel if such questioning is warranted. This is especially true in circumstances where in the absence of an option to appeal, a case will go to trial, a judgment will be rendered, and then an appellate court after the fact might determine that the trial court committed an error by denying a motion to disqualify, requiring the entire proceeding to begin anew and resulting in an unjustified waste of judicial resources and taxpayer dollars. ¶14 The United States Supreme Court addressed the rationale behind the appealability of disqualification orders subject to review under federal rules.16 Ordinarily, an order denying disqualification may not be appealable because sometimes, the propriety of a district court's denial of a disqualification is difficult to assess until its impact on the underlying litigation may be evaluated, which is normally after final judgment.17 Nevertheless, the Supreme Court recognizes that when a party is harmed irreparably by the denial of disqualification, that party may seek to have the question certified for interlocutory appellate review and, in the exceptional circumstances for which it was denied, a writ of mandamus from the appellate court might be available.18 ¶15 Under this rationale, a party seeking disqualification should at least have the opportunity to show that, at this stage in the litigation, they may be harmed irreparably by the denial of disqualification. If the denial of disqualification is reviewed by the appellate court and affirmed, then the moving party has the opportunity to show, after the final judgment is rendered, that the attorney whose disqualification was sought did in fact impact the cause. ¶16 It makes no sense to waste the time and money of the judiciary and the litigants on protracted litigation when the irreparable harm caused by not disqualifying counsel for a party is clearly demonstrated at the outset. This Court has a long history of rejecting the unnecessary waste of judicial resources.19 Allowing a party to immediately appeal the denial of a motion to disqualify opposing counsel helps to reduce the problematic waste of judicial resources by determining at the outset of litigation whether disqualification is proper, alleviating the need to wait until a trial has already concluded before the issue is raised on appeal, resulting in an entirely new trial if on appeal the trial court's denial of disqualification is found to be improper. ¶17 Even though denial of a motion to disqualify does not put either party into a position where they must immediately select new counsel, throwing a wrench into litigation, it still substantially affects the rights of the moving party. The moving party has the same right to fair judicial process as does the party whose choice of counsel is questioned, and if that choice is for whatever reason improper, the moving party has the right to have the situation corrected and their rights are substantially affected if the trial court fails to do so. As such, we hold that the denial of a motion to disqualify opposing counsel is an immediately appealable final order pursuant to 12 O.S. 2011 §953, in the same manner and for the same reasons as an order granting a motion to disqualify opposing counsel.20 ¶18 Having decided that that the denial of a motion to disqualify opposing counsel is an immediately appealable final order pursuant to 12 O.S. 2011 §953, in the same manner and for the same reasons as an order granting a motion to disqualify opposing counsel, we must stress that motions to disqualify counsel for failure to comply with the Rules of Professional Conduct are not to be used as procedural weapons.21 In order to ensure fairness and prevent misuse of motions to disqualify for tactical purposes, it may be necessary for the trial court to stay proceedings pending appeal of an order granting or denying a motion to disqualify opposing counsel, and the trial court should strongly consider exercising its discretion to do so. In the present matter, the trial court entered an order at the joint request of the parties staying discovery pending the review and final resolution of this issue, sustaining the status quo of the litigation. II.ADOPTION OF THE OKLAHOMA RULE OF PROFESSIONAL CONDUCT 1.9, COMMENT 3 DID NOT REMOVE THE REQUIREMENT OF AN EVIDENTIARY HEARING TO DETERMINE IF AN ATTORNEY SHOULD BE DISQUALIFIED FOR A CONFLICT OF INTEREST. ¶19 In Arkansas Valley State Bank v. Phillips, 2007 OK 78, 171 P.3d 899, we held that the standard for granting a motion to disqualify counsel is whether real harm to the integrity of the judicial process is likely to result if counsel is not disqualified.22 Before the trial court can determine that an attorney should be disqualified based on conflict of interest or improper possession of confidential information, it must hold an evidentiary hearing and make a specific factual finding in its order of disqualification that the attorney had knowledge of material and confidential information.23 This evidentiary hearing is required before any decision on whether to disqualify the attorney can be made.24 ¶20 In issuing its September 11, 2012, ruling denying Miami's Motion to Disqualify Counsel, it appears the trial court did not conduct the evidentiary hearing required by Piette v. Bradley & Leseberg, 1996 OK 124, ¶2, 930 P.2d 183 and Arkansas Valley State Bank v. Phillips, supra. Instead, the trial court opted for an in camera review of Phillips' billing documents, prior to issuing a conclusory ruling that included no written findings of fact. ¶21 The reason for the trial court's failure to hold an evidentiary hearing prior to ruling on Miami's motion appears to be confusion over whether changes made to Rule 1.9 of the Oklahoma Rules of Professional Conduct conflict with the evidentiary hearing procedure required by Piette v. Bradley & Leseberg, supra, and Arkansas Valley State Bank v. Phillips, supra. The Court approved certain modifications to the ORPC on April 17, 2007,25 prior to deciding Arkansas State Bank v. Phillips, including a third comment to Rule 1.9 which provides in pertinent part: A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.26 Miami argues that this comment might negate the need for an evidentiary hearing and specific findings of fact indicating a conflict of interest exists before an attorney may be disqualified for a conflict of interest. ¶22 Miami cites two federal cases from the Northern District of Oklahoma in support of its proposition that Rule 1.9, Comment 3 alters the requirement of an evidentiary hearing: Leslie v. Fielden, 10-CV-320-TCK-TLW, 2011 WL 1655969 (N.D. Okla. May 2, 2011) and Accounting Principals, Inc. v. Manpower, Inc., 599 F.Supp 2d 1287 (N.D. Okla. 2008). In Accounting Principals, Inc. v. Manpower, Inc., supra, the court discussed the impact ORPC 1.9, comment 3 might have on Arkansas Valley State Bank v. Phillips, supra, noting: … any interpretation of Phillips that would require a moving party to present evidence of the precise confidential information that was obtained during the prior representation is inconsistent with the new Comment to ORPC 1.9(a), which took effect approximately two months following the Phillips decision.27 Still, the court explained how the requirements of Arkansas Valley State Bank v. Phillips, supra, could be met without the moving party being required to reveal precise confidential information: … a court could potentially make a finding, based purely on the substantial relatedness of the two matters, that an attorney had knowledge of material and confidential information without knowing precisely what that information is. A court could certainly make a finding, based purely on the relatedness of the two matters, that "real harm" to the integrity of the judicial system is likely to result if the attorney is not disqualified.28 Leslie v. Fielden, supra, confirmed that, as far as the Northern District is concerned, the adoption of ORPC Rule 1.9, Comment 3 means that a moving party need not come forward with evidence of actual confidential information possessed by counsel in order to seek disqualification.29 We do not agree. ¶23 We are not bound by the Comments to the Oklahoma Rules of Professional Conduct, though they may be persuasive.30 The Comments do not add obligations to the ORPC, but rather provide guidance.31 The Comments to the ORPC are analogous to those of the U.C.C., which are also non-binding but have served as interpretive tools.32 It is the text which controls. As noted in the ORPC section on scope: The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rules. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.33 The two federal cases cited by Miami are not dispositive. This Court is not bound by the decisions of federal courts when our holding is based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision.34 In Oklahoma, the nondelegable, constitutional responsibility to regulate the practice and ethics, licensure, and discipline of legal practitioners is solely vested in this Court.35 We hold that the requirement for an evidentiary hearing for motions to disqualify opposing counsel for conflict of interest or improper possession of confidential information was not altered by the adoption of ORPC Rule 1.9, Comment 3, adopted after this Court's decision in Arkansas Valley State Bank v. Phillips, supra. ¶24 For one to enjoy the opportunity of meaningful appellate review, it is essential that the facts relied upon by the trial court appear in a record that is available in one's quest for corrective relief.36 Because we hold today that denial of a motion to disqualify opposing counsel is an immediately appealable order pursuant to 12 O.S. 2011 §953,37 a trial court considering such a motion must follow the procedure set forth in Piette v. Bradley & Leseberg, supra and Arkansas Valley State Bank v. Phillips, supra. Before ruling whether an attorney should be disqualified based on conflict of interest or improper possession of confidential information, it must hold an evidentiary hearing.38 The trial court must then make a specific factual finding in its order of disqualification or its order denying disqualification that the attorney either had, or did not have, knowledge of material and confidential information.39 If the ruling is appealed, we will then, when reviewing the order, review the trial court's findings of fact for clear error and carefully examine de novo the trial court's application of ethical standards.40 CONCLUSION ¶25 The denial of disqualification of counsel is an immediately appealable final order pursuant to 12 O.S. 2011 §953.41 The trial court is still required to submit written findings or create a record setting forth its factual and legal support for its ruling when making its decision to deny a motion to disqualify counsel in the same manner it would if it were granting such a motion.42 Otherwise, a petitioner appealing the denial of a motion to disqualify counsel is denied any substantive basis for their appeal and no meaningful way to challenge the factual and legal findings that serve as the basis for the trial court's ruling. The trial court's order denying disqualification of counsel is vacated, and this cause is remanded for proceedings consistent with this opinion. ORIGINAL JURISDICTION IS ASSUMED;PETITION FOR WRIT OF MANDAMUS GRANTED. REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur. COLBERT, C.J., WINCHESTER, TAYLOR, JJ., dissent. FOOTNOTES 1 Title 5 O.S. 2011 Ch. 1, App. 3-A, Rule 1.7 provides: Rule 1.7. Conflict of interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. 2 Title 5 O.S. 2011 Ch. 1, App. 3-A, Rule 1.9 provides: Rule 1.9. Conflict of interest: Duties to former clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has been generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. 3 The trial court's order stated in pertinent part: Having reviewed the pleadings, briefs, and exhibits submitted with Plaintiff's Motion, Appellee's Response, Appellee's Supplemental Response, and Plaintiff's Reply, Plaintiff's and Appellee's Supplemental Briefs filed on August 22, 2012, and having reviewed certain documents, including billing records, submitted by Appellees for in camera review, [the court] finds that the Motion should be overruled. Trial court's September 11, 2012 Order Overruling Motions. 4 Title 12 O.S. 2011 §953 provides: An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article. 5 Title 12 O.S. 2011 App. 1, Part VI, Rule 1.191 provides: (a) Style, Commencement, and Costs. Original proceedings in the Supreme Court shall be styled as shown in Rule 1.301, Form No. 13. Original jurisdiction proceedings shall be commenced by filing with the clerk thereof an application to assume original jurisdiction and a petition (such as a petition for mandamus, prohibition or habeas corpus) and a brief in support of the application and petition. An entry of appearance shall be filed with the application and petition. The cost deposit provided by statute shall be remitted to the Clerk of the Supreme Court, or if the petitioner is an indigent, an affidavit in forma pauperis shall be filed concurrently with the application to assume original jurisdiction and petition. 20 O.S.Supp.1995 § 15. See Rule 1.301, Form No. 4. (b) Application and Petition. The application and petition may be combined in the same instrument and shall state concisely: (1) the reasons why such action or proceeding is brought in the Supreme Court instead of another court of competent jurisdiction and why original jurisdiction should be assumed, (2) the nature of the remedy or relief sought, and (3) the facts entitling the petitioner to the remedy or relief sought. (c) Copies and Brief. One original and fourteen (14) legible copies of the application, petition and brief shall be filed. The brief may not exceed fifteen (15) pages, 8 1/2" x 11" double spaced typed. The brief shall comply with Rule 1.11. No appendix or exhibits may be attached to the brief. If a response is filed by the respondent the petitioner shall not file a reply brief without leave of Court. Failure to observe this rule may result in summary dismissal of the action. (d) Appendix. (1) A separate appendix may be submitted with the brief. Only one appendix, and one copy, shall be filed. The appendix may contain only: (a) copies of cases cited and relied upon; (b) the trial court order which has precipitated the bringing of the action; (c) affidavit(s) presenting facts not of record in the Supreme Court; and (d) copies of exhibits admitted below or pertinent portions of the trial court record which a party believes are necessary to the Court's understanding and disposition of the matter. (2) Only those relevant portions of exhibits that are material to the original action may be included in the appendix. For a lengthy instrument copies of only the cover page and those relevant pages of the instrument should be included in the appendix. For example, a deposition exhibit should include only the cover page and those relevant pages of the deposition, and not the entire deposition. The same rule applies to contracts and other instruments. (3) The appendix shall include an index of its contents. For each exhibit or item of the trial court record contained therein, the index shall contain the following information: (a) a description of the item; (b) the item's date, if dated; (c) a concise statement of the relevancy of the item to the issues presented; and (d) a synopsis of the item. (4) Failure to observe this rule may result in summary dismissal of the action. (e) Notice to Adverse Parties and Time to File Notice. No application or petition, except for habeas corpus, will be heard without notice to the adverse party or parties unless by reason of an emergency this Court determines the same should be heard without notice. Such notice shall state the date and time on which the application, petition and brief in support will be presented to the Court. A copy of the filed application, petition, brief in support, and any appendix shall be attached to the notice. Such notice shall designate the day and hour the matter will be presented to the Court. The matter will be heard at that time or as soon thereafter as may meet the convenience of the Court. Such notice shall comply with Rule 1.301, Form No. 14. Hearing and response dates are to be secured from a Referee (or a Justice) at the time of filing. The Court (by a Referee or Justice) may require different or additional service of notice. The original notice, including a certificate of service on the adverse party or parties, shall be filed with the clerk at the time the application, petition and brief in support are filed. (f) Response. The Court may refuse to assume original jurisdiction without a response being filed. The date of any response shall be set by a Referee or a Justice of the Court. The allowed response may not exceed fifteen (15) pages, 8 1/2" x 11" double spaced typed. A response in the nature of a brief shall comply with Rules 1.10, 1.11 as to form and content, but shall not exceed the page limitation of fifteen pages. No appendix or exhibits may be attached to the response. If a response is ordered one original and fourteen (14) legible copies shall be filed. If a response is ordered the respondent may file an appendix conforming to Rule 1.191(d). An entry of appearance shall be filed with the response. Service of the response shall be made in accordance with Rule 1.4(g), unless a Referee or Justice of the Court require a different procedure. Failure to observe this rule may result in striking the response. (g) Oral Argument. Oral argument before the Supreme Court, an assigned Justice or a Referee, is not a matter of right. The Court may refuse to assume original jurisdiction without hearing oral presentation. (h) Amicus Curiae. Amicus curiae may not appear in an original jurisdiction proceeding unless an order of the Court grants leave for the appearance. Amicus curiae practice and procedure in an original jurisdiction proceeding will be governed by Court orders in that proceeding. Rule 1.12 shall apply. (i) Commencement At Least Ten Days Before Hearing or Trial. This Court will not assume original jurisdiction in any matter except habeas corpus nor shall this Court stay any proceedings unless the same is filed with the clerk of this Court at least ten (10) days prior to the date said cause is set for hearing or trial. Provided however, the above limitation may be excused by this Court if petitioner alleges and shows that asserted grounds for relief were not known, or could not reasonably have been discovered, prior to the ten-day period. (j) Sanctions. Sanctions for the filing of a frivolous application to invoke this Court's extraordinary powers to issue original jurisdiction writs may be invoked against the party filing such proceeding in favor of the party required to defend against it (including a real party in interest). Sanctions may include an award of costs and attorney's fees. A frivolous proceeding may include one brought for the sole purpose of delay or to disrupt the proceeding in the court below or a proceeding so obviously without any merit as to impute bad faith on the party bringing the action. Where the filing of such proceeding is in good faith, sanctions will not be imposed. See 12 O.S.Supp.1995 § 995. 6 Title 5 O.S. 2011 Ch. 1, App. 3-A, Rule 1.9, Cmt. 3 provides: [3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. 7 Title 12 O.S. 2011 §953; Arkansas Valley State Bank v. Phillips, 2007 OK 78, ¶8, 171 P.3d 899; Towne v. Hubbard, 1999 OK 10, ¶2, 977 P.2d 1084; Piette v. Bradley & Leseberg, 1996 OK 124, ¶1, 930 P.2d 183. Title 12 O.S. 2011 §953 provides: An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article. 8 Arkansas Valley State Bank v. Phillips, see note 7, supra; Piette v. Bradley & Leseberg, see note 7, supra at ¶2. 9 Arkansas Valley State Bank v. Phillips, see note 7, supra; Gladstone v. Bartlesville Ind. Sch. Dist. No. 30, 2003 OK 30, ¶5, 66 P.3d 442 (contested issues of law are reviewed de novo. 10 Towne v. Hubbard, see note 7, supra at ¶14; State ex rel. Howard v. Oklahoma Corp. Comm'n, 1980 OK 96, ¶23, fn. 6, 614 P.2d 45; Kiddie v. Kiddie, 1977 OK 69, ¶11, 563 P.2d 139; Bancroft v. Board of Governors of Registered Dentists,1949 OK 216, ¶7, 210 P.2d 666. 11 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶13; Hayes v. Central State Orthopedic Specialists, Inc., 2002 OK 30, ¶9, 51 P.3d 565; Town v. Hubbard, see note 7, supra at ¶14. 12 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶25; Hayes v. Central State Orthopedic Specialists, Inc., see note 11, supra at ¶9; Town v. Hubbard, see note 7, supra at ¶15. 13 Hayes v. Central State Orthopedic Specialists, Inc., see note 11, supra at ¶9. 14 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶23. 15 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶25; Piette v. Bradley & Leseberg, see note 7, supra at ¶2. 16 Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378, 101 S. Ct. 669, 675-76, 66 L. Ed. 2d 571 (1981). 17 Firestone Tire & Rubber Co. v. Risjord, see note 16, supra. 18 Firestone Tire & Rubber Co. v. Risjord, see note 16, supra at fn. 13. 19 See, e.g., Boston Ave. Management, Inc. v. Associated Resources, Inc., 2007 OK 5, 152 P.3d 880 (The general policy reasons supporting the recovery of attorney fees and costs are the encouragement of settlement and the discouragement of the bringing of frivolous claims; these considerations recognize the limited availability of judicial resources and seek to penalize those who unnecessarily waste them); State ex rel. Oklahoma Bar Ass'n v. Wagener, 2005 OK 3, 107 P.3d 567 (it is necessary to consolidate time-related offenses to avoid the waste of judicial resources); Keating v. Johnson, 1996 OK 61, 918 P.2d 51 (This Court will exercise original jurisdiction in order to avoid the waste of judicial resources); City of Oklahoma City v. Oklahoma Tax Com'n, 1990 OK 27, 789 P.2d 1287 (The continued prosecution of a mooted controversy clogs an overburdened judicial system, needlessly delays the end of litigation and wastes scarce judicial resources). 20 Title 12 O.S. 2011 §953, see note 4, supra; Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶8; Piette v. Bradley, see note 7, supra at ¶1. 21 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶13; Hayes v. Central State Orthopedic Specialists, Inc., see note 11, supra at ¶10. 22 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶25. 23 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶8; Piette v. Bradley, see note 7, supra at ¶2. 24 In Piette v. Bradley, see note 7, supra at ¶2, we held: If, after holding a hearing, the trial judge should determine that plaintiff's attorneys should be disqualified, its order of disqualification must include a specific factual finding that [the] attorney … had knowledge of material and confidential information. 25 In Re: Application of the OBA to Amend the Rules of Professional Conduct, 2007 OK 22, 171 P.3d 780. The modified rules became effective on January 1, 2008. 26 Title 5 O.S. 2011 Ch. 1, App. 3-A, Rule 1.9, Cmt. 3, see note 6, supra. 27 Accounting Principals, Inc. v. Manpower, Inc., 599 F.Supp 2d 1287, 1294 (N.D. Okla. 2008). 28 Accounting Principals, Inc. v. Manpower, Inc., see note 27, supra at 1295. 29 Leslie v. Fielden, 10-CV-320-TCK-TLW, 2011 WL 1655969, *4 (N.D. Okla. May 2, 2011). 30 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶19; McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., 2008 OK 66, ¶21 fn. 15, 195 P.3d 35. 31 McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., supra note 31. 32 Wilkerson Motor Co., Inc. v. Johnson, 1978 OK 12, ¶7, 580 P.2d 505. See Farmers and Merchants Nat. Bank, Fairview v. Sooner Co-op., Inc., 1988 OK 135, ¶19, 766 P.2d 325. 33 The Oklahoma Rules of Professional Conduct, 5 O.S. 2011 Ch. 1, App. 3-A, Scope; See also Arkansas Valley State Bank v. Phillips, see note 7, supra at fn. 51. 34 Oklahoma Public Employees Ass'n v. State ex rel. Oklahoma Office of Personnel Management, 2011 OK 68, ¶39 fn. 61, 267 P.3d 838; Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201 (1983). Similarly, because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, federal courts decide them by applying standards developed under federal law. United States v. Stiger, 413 F.3d 1185, 1195 (10th Cir. 2005); Accounting Principals, Inc. v. Manpower, Inc., see note 26, supra at 1291. Although federal courts must consult state rules of professional conduct, they are not bound by state-court interpretations of such rules. Accounting Principals, Inc. v. Manpower, Inc., see note 26, supra at 1291. 35 State ex rel. Oklahoma Bar Ass'n v. Albert, 2007 OK 31, ¶11, 163 P.3d 527; State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 1, 895 P.2d 707; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK 13, ¶ 8, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass'n, 1981 OK 12, ¶ 4, 624 P.2d 1049. 36 Towne v. Hubbard, see note 7, supra at ¶20 fn 41. 37 Title 12 O.S. 2011 §953, see note 4, supra. 38 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶8; Piette v. Bradley, see note 7, supra at ¶2. 39 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶8; Piette v. Bradley, see note 7, supra at ¶2. 40 Arkansas Valley State Bank v. Phillips, see note 7, supra at ¶8; Gladstone v. Bartlesville Ind. Sch. Dist. No. 30, 2003 OK 30, ¶ 5, 66 P.3d 442 [Contested issues of law are reviewed de novo.]. 41 Title 12 O.S. 2011 §953 provides: An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article. 42 See Arkansas State Bank v. Phillips, note 7, supra at ¶8.

2e26e241-f231-4d0d-bd5a-ce4e5b238a8a

Arbuckle Simpson Aquifier Protection Federation of Okla. v. Okla. Water Res. Bd.

oklahoma

Oklahoma Supreme Court

ARBUCKLE SIMPSON AQUIFER PROTECTION FEDERATION OF OKLA., INC. v. OKLA. WATER RESOURCES BD.2013 OK 29Case Number: 111381Decided: 04/23/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ARBUCKLE SIMPSON AQUIFER PROTECTION FEDERATION OF OKLAHOMA, INC., Petitioner,v.THE OKLAHOMA WATER RESOURCES BOARD, J.D. STRONG, EMILY MEAZELL, FORD DRUMMOND, LINDA LAMBERT, TOM BUCHANAN, BON DRAKE, ED FITE, MARILYN FEAVER, RUDOLF JOHN HERMANN, JASON HITCH, and RICHARD SEVENOAKS, Respondents. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRITS OF MANDAMUS AND PROHIBITION ¶0 Petitioner Arbuckle Simpson Aquifer Protection Federation of Oklahoma, Inc. (Petitioner), filed an original action seeking writs of prohibition and mandamus to disqualify a hearing officer in an administrative proceeding conducted by the Oklahoma Water Resources Board (OWRB), to restart the proceeding with a new hearing officer, and to prohibit ex parte communications between the hearing officer and the OWRB and other agencies. We hold that Petitioner is entitled to an administrative hearing that is, and appears to be, a fair and impartial proceeding. While we do not find the hearing officer to be biased and will not order her disqualification, in the interest of fairness and in order to remedy any appearance of impropriety we issue a writ of mandamus compelling the hearing officer to notify the parties to the administrative proceeding of any and all ex parte communications that occurred between her and federal agencies and to include those communications in the record, so that the parties may have an opportunity to respond. ORIGINAL JURISDICTION IS ASSUMED;PETITION FOR WRIT OF PROHIBITON DENIED;PETITION FOR WRIT OF MANDAMUS GRANTED IN PART AND DENIED IN PART. Michael C. Wofford, James R. Barnett, Oklahoma City, Oklahoma, for Petitioner.Jerry Barnett, Oklahoma City, Oklahoma, for Respondents. COMBS, J.: I.PROCEDURE FOR MAXIMUM ANNUAL YIELD DETERMINATIONS ¶1 The proceedings in question concern the Arbuckle Simpson Aquifer Maximum Annual Yield (MAY) determination, made by OWRB on March 13, 2012. Pursuant to 82 O.S. 2011 § 1020.6, once the OWRB has set a tentative maximum annual yield for a groundwater basin or subbasin, it is required to call and hold hearings at centrally located places where any interested parties shall have the right to present evidence in support or opposition to the determination of the OWRB.1 These hearings are to be conducted pursuant to Article II of the Administrative Procedures Act (APA) and Title 785, Chapter 4 of the Oklahoma Administrative Code.2 ¶2 Pursuant to OAC § 785:4-3-4, the OWRB may appoint a hearing examiner, as it did in this case, to supervise, direct, preside over and conduct the hearing proceedings.3 After the hearings are completed the hearing examiner makes a recommendation to the OWRB, which then proceeds to make a final determination as to the maximum annual yield by issuing a final order containing findings of fact and conclusions of law.4 This final order is then subject to judicial review pursuant to Article II of the APA.5 ¶3 Pursuant to 75 O.S. 2011 §318, any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review of the decision.6 The reviewing court may set aside or modify the order or reverse and remand for further proceedings if it determines that the substantial rights of the appellant have been prejudiced because the agency findings, inferences, conclusions or decisions are made upon unlawful procedure.7 II.ENSURING A FAIR HEARING ¶4 Article II of the APA specifically prohibits ex parte communications by members or employees of an agency assigned to render a decision or make findings of fact or conclusions of law in an individual proceeding. Title 75 O.S. 2011 §313 provides: Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in an individual proceeding shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. An agency member (1) may communicate with other members of the agency, and (2) may have the aid and advice of one or more personal assistants. Participants in hearings governed by Article II of the APA are also guaranteed a fair and impartial hearing or consideration. Title 75 O.S. 2011 §316 governs disqualification of a hearing examiner and provides in pertinent part: A hearing examiner or agency member shall withdraw from any individual proceeding in which he cannot accord a fair and impartial hearing or consideration…. ¶5 Petitioner in this cause contends that the hearing examiner appointed by the OWRB, Emily Meazell, was involved in several post-hearing ex parte communications with adverse parties, including representatives of the OWRB and a federal agency, the United States Geological Survey (USGS). In an affidavit included in Respondent's Appendix, the hearing officer admitted to speaking by phone with the OWRB's general counsel to inquire about assistance from the OWRB staff in locating evidence contained in the record on certain issues.8 She further admitted to communicating with the OWRB's Staff Attorney to obtain assistance in locating the evidence mentioned above.9 The hearing officer further acknowledged she received information from the USGS, which was forwarded to her by the OWRB's General Counsel, concerning a hydrology study of the area in question.10 That she did not solicit this information does not change the fact that an ex parte communication occurred indirectly between employees of USGS, who appeared as witnesses in the proceedings, and the hearing officer. A. The OWRB is not a "party" to the MAY proceeding, and thus ex parte communications between it and the hearing officer are not prohibited. ¶6 The OWRB is not a party to the MAY proceeding, and thus communication by the hearing officer with the OWRB is not covered by the ex parte communication prohibitions of 75 O.S. 2011 §313. This interpretation is supported by an analysis of relevant statutory provisions. Title 82 O.S. 2011 § 1020.6, which is the statutory provision governing MAY proceedings generally, specifically distinguishes the OWRB, the agency holding the hearing, from other interested persons or parties, who are entitled to present evidence in support or opposition to the OWRB's tentative MAY determination.11 ¶7 Holding that the OWRB is not a party for purposes of the MAY proceeding is also consistent with 75 O.S. 2011 § 250.3, which provides definitions for the APA. Title 75 O.S. 2011 § 250.3(12) provides: Party" means a person or agency named and participating, or properly seeking and entitled by law to participate, in an individual proceeding… The OWRB is not named and participating in the MAY proceeding, because it is the agency holding the proceeding. Nor would it seek to participate in the proceeding, because again, it is holding the proceeding. Other agencies or persons entitled by law to participate with an interest in the outcome could seek to participate. Further, this interpretation is consistent with the definition of individual proceeding found in 75 O.S. 2011 § 250.3(8), which provides: "Individual proceeding" means the formal process employed by an agency having jurisdiction by law to resolve issues of law or fact between parties and which results in the exercise of discretion of a judicial nature. The agency conducting an individual proceeding resolves issues of fact and law between parties, and is not a party itself. ¶8 Title 75 O.S. 2011 §310, is the section of the APA which governs procedures in individual proceedings before agencies. It also maintains clear distinctions between the agency holding the proceeding and the interested parties presenting evidence. Title 75 O.S. 2011 §310(4), specifically, provides: Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. Agencies may take notice of facts within their specialized knowledge, and then must notify parties (distinguishable from the agency) that it has done so. B. Ex parte communications between the hearing officer and other agencies serving as witnesses, passed to the hearing officer through the OWRB, create the impression of partiality. ¶9 In addition to communications with the OWRB, the Petitioner also alleges that the hearing officer, through the OWRB, received ex parte communications from federal agencies that appeared as witnesses during the hearing process and that the hearing officer failed to notify the parties of these communications. Regardless of whether ex parte communications between the agency and its hearing officer in the context of the MAY proceeding are permissible, and we hold they are, these communications with outside federal agencies such as the USGS are another matter. ¶10 The MAY proceeding in question is an adjudicative proceeding, as opposed to a rulemaking proceeding. Texas County Irr. & Water Res. Ass'n v. Oklahoma Water Res. Bd., 1990 OK 121, ¶9-11, 80 P.2d 1119. When an administrative board acts in an adjudicative capacity, it functions much like a court. Bowen v. State ex rel. Oklahoma Real Estate Appraiser Bd., 2011 OK 86, ¶ 15, 270 P.3d 133; Harry R. Carlile Trust v. Cotton Petroleum,1986 OK 16, ¶ 10, 732 P.2d 438, cert. denied, 483 U.S. 1007, 107 S. Ct. 3232, 97 L. Ed. 2d 738 and 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764 (1987). ¶11 Because they function much like a court when conducting adjudicative proceedings, agencies and their representatives are bound by minimum standards of due process. In Johnson v. Bd. of Governors of Registered Dentists of State of Oklahoma, 1996 OK 41, ¶32, 913 P.2d 1339, we noted: [we have] consistently held and due process requires every litigant receive a decision that is the result of "the cold neutrality of an impartial judge." Sadberry v. Wilson, 441 P.2d 381, 382, 384 (Okla.1968); Craig v. Walker, 824 P.2d 1131, 1132 (Okla.1992). Likewise, the Oklahoma Statutes require an agency member to "withdraw from any individual proceeding in which [the member] cannot accord a fair and impartial hearing or consideration." Okla.Stat. tit. 75, § 316 (1991). "When circumstances and conditions surrounding litigation are of such a nature that they might cast doubt and question as to the impartiality of any judgment the trial judge may pronounce, said judge should certify his disqualification." Sadberry, 441 P.2d at 384 (quoting Callahan v. Childers, 186 Okla. 504, 99 P.2d 126, 128 (1940)). This is an objective standard and is not dependent on the judge's belief. Merritt v. Hunter, 575 P.2d 623, 624 (Okla.1978). Even though a judge personally believes themselves to be unprejudiced, unbiased and impartial, they should nevertheless certify their disqualification when there are circumstances of such a nature to cause doubt as to their partiality, bias or prejudice. Merritt v. Hunter, 1978 OK 18, ¶5, 575 P.2d 623. This rule applies equally to administrative boards acting in an adjudicatory capacity as it does to judges. Johnson, 1996 OK 41 at ¶33. ¶12 It is readily apparent from the record that the OWRB's hearing officer received communications and information relating to factual matters from employees of the USGS, who had appeared as witnesses for the OWRB in the proceedings, under the aegis of communications with the OWRB. These post-hearing communications were not disclosed by the hearing officer to various other parties to the adjudicative action, including the petitioner, until the filing of various open records requests. ¶13 These communications give rise to questions about the hearing officer's neutrality in the underlying proceeding. Title 82 O.S. 2011 §1020.6 requires the hearing not only so that the OWRB can present evidence in support of its tentative maximum annual yield determination, but also so that any interested party may present evidence in support or opposition to the determination. The hearing presents the OWRB with an opportunity to defend its decision from challengers. To then have the OWRB, which is not a party to the proceeding and thus permitted to communicate with the hearing officer, acting as a conduit for favorable witnesses to present further unchallenged testimony to the hearing officer without notice to the other parties allows one to question the hearing officer's impartiality. The goal of the proceedings should be to ensure that all parties receive a fair hearing from a neutral hearing officer, avoiding even the appearance of impropriety. If post-hearing communications from the USGS and other agencies about the record were necessary, then notice and an opportunity for all parties to participate should have been provided. III.A WRIT OF MANDAMUS IS THE APPROPRIATE REMEDY ¶14 Pursuant to the Okla. Const. art.7, § 4, this Court possesses original jurisdiction over all agencies, commissions, and boards created by law. Before a writ of mandamus may be issued there must be: 1) a clear legal right vested in the petitioner; 2) refusal to perform a plain legal duty which does not involve the exercise of discretion; and 3) adequacy of the writ and inadequacy of other relief. Draper v. State, 1980 OK 117, ¶13, 621 P.2d 1142; Witt v. Wentz, 1930 OK 116, ¶7, 1930 OK 116. ¶15 Our case law and the applicable statutes collectively illustrate that the parties to the MAY proceeding have a clear legal right to a hearing that is not only fair and impartial, but also avoids the appearance that fairness and impartiality are lacking. Johnson, 1996 OK 41 at ¶32; Merritt, 1978 OK 18 at ¶5; 75 O.S. 2011 §§313, 316. Providing a fair and impartial hearing is the plain legal duty of the OWRB, and by extension, its appointed hearing officer, and is not something subject to discretion. 75 O.S. 2011 §§313, 316. The mandate in 75 O.S. 2011 §316 requiring that a hearing officer "shall withdraw from any individual proceeding in which he cannot accord a fair and impartial hearing or consideration" is a clear indication that providing a fair and impartial hearing is an affirmative duty of the hearing officer, and if they are unable to do so, they are required to withdraw. 75 O.S. 2011 §316 (emphasis added). ¶16 We do not hold that the hearing officer failed to provide a fair and impartial hearing during the MAY proceeding in question, and will not require her disqualification and a restart of the proceedings. However, her unsolicited ex parte communications with other agencies favoring one interpretation of the evidence lend the proceedings the appearance of not being as fair and impartial as they should be, even if those communications did nothing to actually influence the hearing officer's actions and decisions. The proper course of action to avoid even the appearance of impropriety would have been for the hearing officer to provide notice to all parties to the MAY proceeding of her ex parte communications, and to add the information she received to the record along with responses, if any, from the other interested parties. ¶17 A writ of mandamus compelling the hearing officer to provide notice of her ex parte communications to all parties to the MAY proceedings, and to include those communications in the record, as well as the responses of interested parties, will remedy the appearance that the hearing officer is giving undue weight in making her final recommendation to the desires of the USGS and OWRB. The lack of due process resulting from a biased tribunal cannot be corrected on appeal. Johnson, 1996 OK 41 at ¶14; Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). Other relief, such as an appeal after the MAY proceedings have concluded, will therefore be insufficient. The time to address allegations of bias, or the appearance of bias, on the part of the hearing officer is now. Petitioner has satisfied the necessary requirements for a writ of mandamus, and so we hereby issue a writ compelling the hearing officer to provide notice of her ex parte communications to all parties to the MAY proceeding, to disclose the contents of those communications to the parties, and incorporate those communications and responses to them into the record. ORIGINAL JURISDICTION IS ASSUMED;PETITION FOR WRIT OF PROHIBITION DENIED;PETITION FOR WRIT OF MANDAMUS GRANTED IN PART AND DENIED IN PART. COLBERT, C.J., REIF, V.C.J., KAUGER, EDMONDSON, COMBS, GURICH, JJ., concur. WATT, J., concurring in part; dissenting in part. TAYLOR, J., with whom WINCHESTER, J., joins, dissenting. I would deny all relief sought by the Petitioner. This administrative proceeding is in its early stage and should continue in its regular order. Lowrey v. Hodges, 1976 OK 132; United Airlines v. State Bd. Of Equalization, 1990 OK 29; Estes v. ConocoPhillips, 2008 OK 21; Umholtz v. Tulsa, 1977 OK 98. FOOTNOTES 1 Title 82 O.S. 2011 § 1020.6.A. provides: A. Once the Board has set a tentative maximum annual yield for the groundwater basin or subbasin, the Board shall call and hold hearings at centrally located places within the area of the major groundwater basin or subbasin or in the county for minor groundwater basins or subbasins. Prior to such hearings being held, the Board shall make copies of such hydrologic survey available for inspection and examination by all interested persons and, at such hearings, shall present evidence of the geological findings and determinations upon which the tentative maximum annual yield has been based. Any interested party shall have the right to present evidence in support or opposition thereto. The hearings shall be conducted pursuant to Article II of the Administrative Procedures Act. 2 Title 82 O.S. 2011 § 1020.6.A.; OAC 785:30-9-3, concerning Annual Yield Hearings, provides in pertinent part: …. (d) Such hearings, if requested, will be held in accordance with the Administrative Procedures Act and Chapter 4 of this Title. …. 3 OAC 785:4-3-4 provides: (a) Who may be Hearing Examiners. Hearings may be conducted by authorized and designated Hearing Examiners. Any Board member, the Board Executive Director or Assistant Director, any authorized Board staff member, staff attorneys, the Attorney General or Assistant Attorney General or any other Board authorized person may serve as Hearing Examiner. (b) General authority of Hearing Examiners. Hearing Examiners are authorized to supervise, direct, preside over and conduct the hearing proceedings; to make and enter interlocutory rulings; to make and enter rulings on procedural or evidentiary questions or objections; to make and enter rulings on any other motions or objections arising during the course of the hearing; and, generally, to do all things necessary and incidental to conducting and completing the hearing and all other acts authorized under this Chapter. (c) Assistance. Where deemed necessary, the Hearing Examiner may designate any Board staff member to assist the Hearing Examiner in the conduct of the proceedings or to aid the Hearing Examiner in an advisory capacity. 4 OAC 785:4-9-1(a) provides: (a) As expeditiously as possible after completion of the hearing, the Hearing Examiner shall review, consider and evaluate all matters presented and relevant to the hearing issues, and, based thereon, the Hearing Examiner shall prepare a proposed Final Order containing necessary findings of fact and conclusions of law. Title 82 O.S. 2011 § 1020.6.C. provides: C. After such hearings are completed, the Board shall then proceed to make its final determination as to the maximum annual yield of groundwater which shall be allocated to each acre of land overlying such basin or subbasin by issuing a final order containing findings of fact and conclusions of law, which order shall be subject to judicial review pursuant to Article II of the Administrative Procedures Act. 5 Title 82 O.S. 2011 § 1020.6.C. 6 Title 75 O.S. 2011 § 318.A. provides: A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. 7 Title 75 O.S. 2011 § 322 provides: (1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are: (a) in violation of constitutional provisions; or (b) in excess of the statutory authority or jurisdiction of the agency; or (c) made upon unlawful procedure; or (d) affected by other error of law; or (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or (f) arbitrary or capricious; or (g) because findings of fact, upon issues essential to the decision were not made although requested. (2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue. (3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant. 8 Respondent's Appendix, Affidavit of Emily Meazell, 3.g. 9 Respondent's Appendix, Affidavit of Emily Meazell, 3.h. 10 Respondent's Appendix, Affidavit of Emily Meazell, 3.k.; Exhibit 2. 11 Title 82 O.S. 2011 § 1020.6(A) provides: A. Once the Board has set a tentative maximum annual yield for the groundwater basin or subbasin, the Board shall call and hold hearings at centrally located places within the area of the major groundwater basin or subbasin or in the county for minor groundwater basins or subbasins. Prior to such hearings being held, the Board shall make copies of such hydrologic survey available for inspection and examination by all interested persons and, at such hearings, shall present evidence of the geological findings and determinations upon which the tentative maximum annual yield has been based. Any interested party shall have the right to present evidence in support or opposition thereto. The hearings shall be conducted pursuant to Article II of the Administrative Procedures Act. (Emphasis added) . WATT, J. concurring in part and dissenting in part: ¶1 I agree with the majority that the petitioner is entitled to an administrative hearing that is fair and impartial. Nevertheless, I depart from its conclusion that any appearance of such a proceeding can occur absent the disqualification of the hearing officer. ¶2 In circumstances not unlike those presented here, we ordered the disqualification of the trial judge in Miller Dollarhide, P.C. v. Tal, 2007 OK 58, ¶20, 163 P.3d 548. In that cause, there were allegations that ex parte communications occurred with the trial judge through a third-party clerk. The Court determined that there were sufficient facts presented to cause doubt as to the trial court's impartiality. Consequently, we held that "error, if any, should be made in favor of disqualification" and that failure to disqualify "was an abuse of discretion." ¶3 In Tal, we stated that parties are entitled to have their causes heard by a fair and impartial judge, in a due process situation where all parties find themselves on a level playing field. Here, the "appearance" is that the communications at issue created favor of one party over the other. Therefore, I dissent to the portion of the opinion allowing the hearing officer to continue participation in the cause.

d7cc2a05-8b55-48c7-9aa3-89970410addc

Bertrand v. Laura Dester Center

oklahoma

Oklahoma Supreme Court

BERTRAND v. LAURA DESTER CENTER2013 OK 18Case Number: 110394Decided: 04/02/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. NANCY C. BERTRAND, Petitioner, v. LAURA DESTER CENTER, COMPSOURCE OKLAHOMA, and THE WORKERS' COMPENSATION COURT, Respondents. PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT HONORABLE WILLIAM R. FOSTER, JUDGE ¶0 Workers' Compensation claimant sought mileage reimbursement for travel costs to and from vocational retraining facility. The trial court denied the reimbursement request after the enactment of the Workers' Compensation Code on August 26, 2011, on the basis of Claimant's failure to meet the new minimum of twenty miles round-trip. The court found the new law was procedural only and could be applied retroactively. The Court of Civil Appeals affirmed the trial court. This Court previously granted certiorari. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III; COURT OF CIVIL APPEALS' OPINION IS VACATED; WORKERS' COMPENSATION COURT'S ORDER IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. John L. Harlan, Sapulpa, Oklahoma, for Petitioner, L. Brad Taylor, David J. Frette, Tulsa, Oklahoma, for Respondents. OPINION WATT, J.: ¶1 Petitioner Nancy C. Bertrand injured her right foot on August 3, 2005, when she slipped on a wet floor while employed as a child care worker for Respondent Laura Dester Center (Employer). Her injury arose out of and in the course of her employment. She sought this Court's certiorari review of the opinion of the Court of Civil Appeals (COCA), Division III, which sustained the Workers' Compensation Court's (WCC) denial of her request for travel costs to and from a vocational rehabilitation facility. Claimant contends that her allowance for travel expenses was, in effect, eliminated under the new Workers' Compensation Code, enacted August 26, 2011, which set a minimum for reimbursement of twenty miles round-trip. See 85 O.S. 2011 §326(K). Claimant's total round-trip mileage is only fourteen miles, for which she was previously paid, prior to the effective date of the Code. The trial court ordered the new law was procedural and could be applied retroactively. Because the WCC ordered vocational rehabilitation before August 26, 2011, and the facility is outside the city limits of Claimant's hometown of Pryor, Oklahoma, we reverse. FACTS AND PROCEDURAL HISTORY ¶2 On February 7, 2011, the trial court found Claimant was 29% permanently partially disabled to the right foot and ordered Employer to furnish a vocational rehabilitation evaluation. In a separate order on March 9, 2011, the court ordered Claimant to appear for the evaluation at Wilson Rehab Services in Edmond, Oklahoma. The order directed the counselor to perform the rehabilitation evaluation and to include recommendations for vocational retraining plans, if appropriate. The order directed Employer to pay for the evaluation and necessary trip expenses incurred by Claimant for travel to the evaluation if required to travel outside the city or town of her residence. ¶3 Claimant appeared for the evaluation on April 27, 2011, and on May 11, 2011, the Vocational Evaluation was filed with the court making recommendations for Claimant and three "vocational options."1 Claimant chose "Vocational Option B" which provided: Ms. Bertrand could attend Northeast Technology Center in Pryor, Oklahoma and study to be an Office Information Specialist. The program prepares for clerical occupations in a variety of settings. Total Cost: $1500 estimated I recommend vocational case management services to assist Ms. Bertrand with enrollment, monitor her progress, and troubleshoot for problems that may impede her from completing this program in a timely manner. The cost of case management services for two years is approximately $1000. ¶4 There is no order of the trial court directing Employer to provide vocational retraining for Claimant.2 Although the parties did not designate the evaluator's report, this Court ordered the Clerk of the Workers' Compensation Court to supplement the record with the report. We recognize that the parties agreed Claimant would pursue vocational retraining under the terms of Option B of the report and that the parties understood that the court would approve this action, although no trial was held and no written order was filed. We find there was indirect approval by the court from an examination of the record and the actions of the parties: (1) the court ordered the evaluation for rehabilitation and retraining, directing the evaluator to report whether rehabilitation and retraining would benefit Claimant; (2) neither party objected to the evaluator's report dated May 11, 2011, filed with the court, (3) the parties agreed that Claimant would implement Option B in the report ordered by the court, and (4) the court clearly approved mileage expenses for trips to the retraining facility before August 26, 2011. Additionally, there are six "Vocational Progress Reports," filed monthly with the court by the vocational counselors of Working Rehabilitation Solutions, PC, of Edmond, Oklahoma, which is monitoring Claimant's retraining with Northeast Technology Center. The first report is dated August 19, 2011, which sets the time frame in this case prior to the enactment of the new Code on August 26, 2011. ¶5 Before August 26, 2011, Claimant was paid mileage pursuant to former Workers' Compensation Court Rule 39(B),3 which provided: B. Travel expenses related to a claimant's submission to a medical examination or incurred in obtaining reasonable and necessary medical treatment, vocational evaluations, and vocational retraining shall be paid to the claimant as provided in this rule. Mileage and necessary lodging expenses are limited to the provisions of the State Travel Reimbursement Act, 74 O.S., Section 500.1 et. Seq. Meals will be reimbursed at the rate of Eight Dollars ($8.00) per meal per four hours of travel status, not to exceed three meals per day. Travel expenses paid to the claimant shall include only expenses for travel from the residence of the claimant at the time of the examination, treatment, evaluation or retraining, as applicable, not to exceed 600 miles round trip. The employer shall not be liable for travel which is wholly within the limits of the city or town of the claimant's residence. Exceptions to this rule shall be at the discretion of the Court. [emphasis added] ¶6 Rule 39 was amended again, effective March 6, 2012. At that time, mileage reimbursement for travel expenses for vocational retraining or rehabilitation was eliminated. Only travel expenses for evaluations for vocational rehabilitation or retraining were allowed. Current Rule 39(B) provides: B. The respondent shall reimburse the employee for the actual mileage in excess of twenty (20) miles round-trip to and from the claimant's home to the location of a medical service provider for all reasonable and necessary medical treatment,4 for an evaluation by an independent medical examiner and for any evaluation, including an evaluation for vocational rehabilitation or vocational retraining,5 made at the respondent's request, but in no event in excess of six hundred (600) miles round-trip. Mileage and necessary lodging expenses are limited to the provisions of the State Travel Reimbursement Act, 74 O.S., Section 500.1 et. seq. Meals will be reimbursed at the rate of Eight Dollars ($8.00) per meal per four hours of travel status, not to exceed three meals per day. [emphasis added] ¶7 This modification of Rule 39 followed the enactment of the Workers' Compensation Code (the Code), 85 O.S. 2011 §§301-413, on August 26, 2011, when the Oklahoma Workers' Compensation Act (the Act), 85 O.S. 2001, §§1-211, then in effect, was repealed. Section 326(K) of the new Code addresses "mileage reimbursement." Claimant contends that her allowance for travel expense was, in effect, eliminated by §326(K) because of the allowed minimum "in excess of twenty miles" round-trip. However, as we read section 326(K), it completely eliminated the allowance of mileage for vocational rehabilitation and retraining. It provides: K. The employer shall reimburse the employee for the actual mileage in excess of twenty (20) miles round-trip to and from the employee's home to the location of a medical service provider for all reasonable and necessary treatment, for an evaluation of an independent medical examiner and for any evaluation made at the request of the employer or insurance carrier. The rate of reimbursement for such travel expense shall be the official reimbursement rate as established by the State Travel Reimbursement Act. In no event shall the reimbursement of travel for medical treatment or evaluation exceed six hundred (600) miles round trip. [emphasis added] ¶8 Section 326(K) corresponds to Rule 39 in its current form. Neither provision allows for reimbursement of travel expenses for vocational retraining. This does not end our inquiry, however. As noted above, Claimant's injury occurred in 2005. Rule 39(B) (formerly Rule 19A) allowed mileage reimbursement for travel expenses for vocational rehabilitation and retraining. After the Code was enacted on August 26, 2011, Rule 39 was amended to eliminate the reimbursement. Employer refused to pay Claimant's mileage for the 14-mile round trip expense which she had been previously paid on the basis of her failure to meet the twenty mile minimum. CLAIMANT IS ENTITLED TO VOCATIONAL RETRAINING ¶9 The Vocational Evaluation, which became part of the evidence in this case, provides: It is my opinion Ms. Bertrand cannot return to the job at which she was injured. Her job with Laura Dester Shelter is in the MEDIUM capacity according to the Dictionary of Occupational Titles. Reported restrictions place her work capacity at the SEDENTARY level. ¶10 The evaluator's report6 indicates that vocational retraining is necessary for Claimant to re-enter the work force.7 The consequences of Claimant's injury require her to be retrained for a different kind of employment. The necessity of such retraining is supported by Claimant's medical evidence.8 Her choice of Option B, agreeable to all concerned, requires the training to take place at Northeast Technology Center outside of Pryor.9 Claimant testified she does not have a valid driver's license and must pay someone to take her to the retraining sessions. Without the mileage reimbursement, she'll be unable to continue the sessions, and the vocational retraining awarded by the court will have no beneficial value to Claimant. See Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶27, 295 P.3d 1107, 1115.10 ¶11 On August 3, 2005, the date of Claimant's injury, 85 O.S. Supp. 2005 §16 was in effect, entitling her to "prompt and reasonable physical rehabilitation services . . . which shall include retraining and job placement so as to restore the employee to gainful employment." 85 O.S. Supp. §16(A). It did not provide for travel costs unless the employee was required to board at the facility. Rule 39(B)11 provided for the mileage reimbursement which did not change until March 6, 2012, when Rule 39 deleted the travel reimbursement for vocational rehabilitation and retraining. It was allowed only for travel for medical treatment and for evaluations for vocational rehabilitation and retraining in excess of twenty miles round-trip. CONCLUSION ¶12 The provisions of §326(K) allow a mileage reimbursement only for "medical care" travel and travel for "any evaluation" for vocational retraining. Section 338, similar to former §16, allows for travel costs for vocational rehabilitation which requires residence at the facility. Former section 16 did not allow for mileage reimbursement at all. None of these statutes helps Claimant's cause. The only provision which allows such travel costs is former Rule 39(B), in effect at the time of the injury. ¶13 Workers' Compensation Court rules are adopted for: effecting the purposes of the Workers' Compensation Code. . . . All rules, upon approval by the Supreme Court, shall be published and be made available to the public and, if not inconsistent with the law, shall be binding in the administration of the Workers' Compensation Code. See 85 O.S. Supp. 2012, §303(D), substantively similar to former 85 O.S. 2001 §1.2(E), in effect at the time of Claimant's injury. ¶14 Administrative rules and court rules are valid expressions of lawmaking powers having the force and effect of law. Estes v. ConocoPhillips Co., 2008 OK 21, 184 P.3d 518; Renfrow v. Ittleson, 1925 OK 403, 236 P. 585, 110 Okla. 109. The Workers' Compensation Court Rules in effect at the time of injury should apply to this case. See gen., Williams v. Vickers, Inc., 1990 OK 108, ¶9, 799 P.2d 621, 624.12 The purposes of the Workers' Compensation Code cannot be "effected" when a claimant's ability to be retrained for a different job is removed. The workers' compensation laws, before and after the enactment of the Code, provided for vocational retraining for Claimant. The omission of travel reimbursement in a situation like Claimant's interferes with her ability to fully benefit from the award of vocational retraining. Because Claimant's injury arose when Rule 39 allowed for travel reimbursement, and because travel is required to facilitate her choice of Option B in the Evaluation Report, she will suffer the loss of a substantive right to be retrained for employment if she cannot receive travel costs. Under the reasoning of Williams Companies, Inc. v. Dunkelgod, supra, we hold Claimant is entitled to receive travel costs to allow Claimant to receive the benefits of her award of vocational retraining which was made necessary by her accidental, work-related injury at Employer's place of business. ¶15 Claimant's award of vocational retraining is a valuable benefit which will enable Claimant to re-enter the work force in a different kind of job. However, it is a benefit which cannot be fully realized if she cannot participate in it. Without the reimbursement of travel costs, it is an award without benefit to Claimant. We hold, therefore, that Rule 39(B), in effect at the time of her injury, is applicable to this claim. She is entitled to receive reimbursement for travel costs incurred while traveling the round-trip distance of fourteen miles to the rehabilitation facility. The award of travel costs thus effects the purposes of the Workers' Compensation Code. ¶16 The opinion of the Court of Civil Appeals is vacated. The order of the Workers' Compensation Court is reversed. This case is remanded to the Workers' Compensation Court for further proceedings in accordance with this opinion. ¶17 COURT OF CIVIL APPEALS' OPINION IS VACATED; WORKERS' COMPENSATION COURT'S ORDER IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, GURICH, JJ. - CONCUR KAUGER, TAYLOR, JJ. - CONCUR IN RESULT WINCHESTER, J. - DISSENTS FOOTNOTES 1 Along with the recommendations made for Claimant in the evaluation, the evaluator noted: the restrictions given to Claimant were consistent with sedentary employment; Claimant has a high school equivalent education and had performed semiskilled and skilled employment in the past; scores on vocational testing indicated an average learning ability with a high school level academic ability in reading and mathematics and a seventh grade ability in spelling. The report also noted Claimant indicated an interest in returning to work in a clerical type occupation. 2 Employer's Answer Brief filed April 24, 2012, on page 2, note 1, explains: The vocational evaluator's report does not appear in the record because Employer agreed to provide the retraining; therefore, a trial was never held on that issue nor is there an order actually awarding Claimant the vocational retraining. 3 Former Rule 19A, adopted effective November 1, 1997, was renumbered as Rule 39 and amended, effective January 30, 2006. See order of the Supreme Court, 2006 OK 6. Rule 19A is similar in substance to Rule 39(B) adopted in 2006. Both versions of the rule allowed travel expenses for mileage from the residence of the claimant, round-trip, for vocational evaluation or retraining. 4 "Medical treatment" is not defined by the former Act under 85 O.S. Supp. 2005, §3. It is defined under the Code at 85 O.S. 2011 §308(30), but does not include "vocational rehabilitation" or "vocational retraining." 5 Although it is argued that the twenty mile reimbursement applies to "vocational retraining" under this statute, we find the term "vocational retraining" relates back to and describes "evaluation." 6 The trial court's order of March 9, 2011, provides: "That the verified or declared written narrative report of the evaluator shall become a part of the evidence herein." 7 Under the former Act, 85 O.S. Supp. 2005 §16, and the current Code, 85 O.S. 2011 §338, a claimant is entitled to vocational retraining if, because of a work-related injury, the employee is unable to perform the same occupational duties he was performing prior to the injury. 8 Dr. Hastings' August 24, 2010 opinion provides "this patient should undergo a course of vocational rehabilitation in order to learn a more sedentary type of employment that do (sic) not require prolonged standing, prolonged walking, and repetitive ambulation on stairs, grades or uneven surfaces." 9 Employer, through DHS and its insurer Compsource Oklahoma, admitted this center is outside the city limits of Pryor, Oklahoma. See Response to Request for Admission No. 3, which is part of "Claimant's Exhibit 1". 10 We held in Dunkelgod that a lift van was necessary to enable the claimant to use a scooter awarded by the court. We stated at paragraph 27: "The evidence is more than sufficient to show the scooter is necessary for Claimant and that she has to rely on herself to transport it wherever she goes. The van containing the lift equipment is, therefore, a necessary part of the award if the scooter is to have any value at all for her recovery." [citations omitted]. 11 See ¶5, supra. 12 Williams v. Vickers, Inc. was decided on the trial court's finding that the injury was not employment-related. However, we recognized, and our opinion implies, it would have been error to apply the later-enacted rule rather than the one in effect at the time of the injury. 799 P.2d at 624, ¶9.

f927ed27-5e3c-4c47-8a5b-61f6d12e7342

Cornett v. Carr

oklahoma

Oklahoma Supreme Court

CORNETT v. CARR2013 OK 30Case Number: 107506Decided: 04/23/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ROBERT CORNETT, Appellant,v.RHONDA CARR, GLEN DAVIS and DENA DAVIS Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA, HONORABLE BRYAN C. DIXON ¶0 Plaintiff sued his former spouse, seeking rescission and damages arising out of an allegedly fraudulent real estate sales agreement. The district court dismissed Plaintiff's lawsuit for failing to issue summons or file a waiver within ninety days of bringing the action as required by Rule 9(a), Rules for District Courts of Oklahoma, 12 O.S.2001 Ch. 2, App. The Court of Civil Appeals, Division I, affirmed. We granted certiorari to review an apparent discord between Rule 9(a) and 12 O.S.Supp. 2002 § 2004(I), and find the two provisions are in direct conflict to the extent Rule 9(a) shortens plaintiff's allotted time for service of summons. COCA OPINION VACATED; TRIAL COURT'S ORDER DISMISSING PLAINTIFF/APPELLANT'S ACTION REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S DECISION. Jerry L. Colclazier, Colclazier & Associates, Seminole, OK, for the Plaintiff/Appellant Robert CornettJack Mattingly Sr., Jack Mattingly, Jr., The Mattingly Law Firm, P.C., Seminole, OK, for the Defendant/Appellee Rhonda Carr GURICH, J. Facts and Procedural History ¶1 In January 2006, Robert Cornett brought a lawsuit in the Oklahoma County District Court, challenging the sale of real property ordered to be sold by his ex-spouse, Rhonda Carr, in connection with the parties' divorce proceeding. According to the petition, a divorce judgment entered by the Seminole County District Court directed Carr to sell the subject property at the highest possible price and evenly divide the net proceeds with Cornett. It further suggested Carr entered into a conspiracy with co-defendants, Glen and Dena Davis, to defraud Cornett by providing for an undisclosed payment to Carr of $8,000.00; a sum not included in the written real estate contract. Cornett additionally sought rescission of the allegedly clandestine agreement. On March 4, 2008, the trial court dismissed the original case without prejudice.1 ¶2 The matter was refiled on April 30, 2009, in Oklahoma County, Case No. CJ-2009-4065. Following the commencement of the second action, Cornett's attorney neglected to issue summonses. Upon review of the docket, the trial judge recognized this omission. Judge Dixon entered a sua sponte order ninety-six days after filing suit, on August 4, 2009, dismissing the second case without prejudice in accordance with Rule 9(a), Rules for the District Courts, 12 O.S.2001 Ch. 2, App.2 ¶3 Cornett appealed the order dismissing his lawsuit, arguing Rule 9(a) directly conflicted with the statutory terms of 12 O.S.Supp. 2002 § 2004(I). The case was assigned to the Court to the Court of Civil Appeals. On January 7, 2011, COCA affirmed the lower court's dismissal of the proceeding, finding no discord between Rule 9(a) and Section 2004(I). On June 13, 2011, we granted certiorari to review the seemingly incompatible provisions. Standard of Review ¶4 Whether a district court rule conflicts with a statute presents a purely legal question analyzed under the de novo standard of review. See Duncan v. Oklahoma Dept. of Corrections, 2004 OK 58, ¶ 3, 95 P.3d 1076, 1078. Thus, our examination of the case consists of a "non-deferential, plenary and independent review of" the lower court's rulings. Id. See also In re Estate of Bell Levine, 2012 OK 112, ¶ 5, 293 P.3d 964, 966; Martin v. Aramark Service, Inc., 2004 OK 38, ¶ 4, 92 P.3d 96, 97. Analysis ¶5 Cornett argues that Rule 9(a) directly conflicts with Section 2004(I), to the extent it shortens the time limit for accomplishing service of process under the statute. According to Cornett, if service is accomplished before the expiration of 180 days from the filing of the action, service is always timely under § 2004(I). This, he suggests, is consistent with the fundamental policy which favors disposition of cases on their merits, rather than procedural technicalities. Carr counters these arguments by pointing out that the two provisions deal with "totally separate contingencies." She maintains that Rule 9(a) controls when summons must be issued, while Section 2004(I) imposes a time restriction on when summons must be served. ¶6 At the time Cornett's lawsuit was dismissed by the trial judge, 12 O.S.Supp. 2002 § 2004(I) was in effect: SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. The action shall not be dismissed where a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition. Subsection (I) does not place any time limitation on a plaintiff other than requiring service within 180 days after commencement of a lawsuit.3 In contrast, Rule 9(a) reads as follows: In any case in which summons is not issued or waiver filed within ninety (90) days after the filing of the petition, or alias summons is not issued within thirty (30) days after return of the summons not served, the action may be dismissed by the court without notice to the plaintiff. This court rule adds a restriction not imposed by § 2004.4 To the extent the two conflict, the statute must prevail. State ex rel. Okla. Bd. of Med. Licensure and Supervision v. Pinaroc, 2002 OK 20, ¶ 12, 46 P.3d 114, 119; see also Vannoy v. Earth Biofuels, Inc., 2009 OK CIV APP 22, ¶ 5, 278 P.3d 1052, 1053 (recognizing statutory priority of 12 O.S.Supp. 2002 § 2004(B) over Rule 10, Rules for the District Courts, 12 O.S.2001 Ch. 2, App.). ¶7 An historical examination of Oklahoma's statutory scheme governing service of process reveals that Rule 9 was promulgated in 1961, more than twenty years before adoption of the Pleading Code.5 Prior to the enactment of Rule 9, Oklahoma procedural law placed no specific time restrictions on issuance and service of a summons.6 Hence, the implementation of Rule 9 was designed to foster "judicial economy and [was] designed to ensure the efficient administration of justice and to encourage lawyers to diligently represent their clients" by placing a time limit on issuance of summons to prevent lawsuits from lingering indefinitely. Gugello v. Select Speciality Hosp.-Tulsa, 2006 OK CIV APP 102, ¶ 8, 143 P.3d 519, 522. However, with the Legislature's passage of the Oklahoma Pleading Code, the policy rationale behind Rule 9(a) was superseded by 12 O.S.Supp. 1984 § 2004(I). ¶8 Nevertheless, the fact remains that Rule 9(a) and §2004(I) have coexisted side-by-side for years. As such, COCA agreed with Carr that Rule 9 refers to an entirely distinct aspect of service of process than does § 2004(I). Accordingly, COCA held that the two provisions were not at odds. While we agree with COCA that service of summons presupposes the actual issuance of summons, our prior decisions have clearly held that service is always punctual if made within the time allotted by § 2004. Fisher v. Baptist Health Care of Okla., 2000 OK 91, ¶ 6, 14 P.3d 1292, 1293; See also Mott v. Carlson, 1990 OK 10, ¶ 8, 786 P.2d 1247, 1250. ¶9 According to the 1984 Committee Comments, 12 O.S.Supp. 1984 § 2004(I) was modeled after FRCP Rule 4(j). This Court has routinely relied upon federal case law to assist with interpretation of the corresponding sections of the Oklahoma Pleading Code. See Fanning v. Brown, 2004 OK 7, ¶ 20, n.9, 85 P.3d 841, 847 (looking to federal decisions weighing FRCP Rule 8 to guide our interpretation of 12 O.S. 2001 § 2008); Graff v. Kelly, 1991 OK 71, ¶ 14, 814 P.2d 489, 493-494 (considering federal case law to evaluate a legal issue arising under § 2004 of the Oklahoma Pleading Code). ¶10 Prior to Congress' overhaul of the FRCP in 1983, Rule 4 contained no express sanction for failing to have a summons issued at the time a complaint was filed. 4A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Richard L. Marcus, Federal Practice and Procedure § 1086 (3d ed. 2012). Consequently, as part of the 1983 changes, Congress added subsection (j) to Rule 4, which provided in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice. . ." FRCP Rule 4(j) (1983). The version adopted by the Oklahoma Legislature in 1984 was nearly identical to FRCP Rule 4. ¶11 In Henderson v. U.S., 517 U.S. 654 (1996) the United States Supreme Court granted certiorari in a case with facts similar to those presented in this proceeding to construe the time limits imposed by FRCP Rule 4(j). The issue presented was whether FRCP Rule 4(j) conflicted with the service requirements under the Suits in Admiralty Act, 46 U.S.C.App. § 741 et. seq. Id. at 656. After initiating a lawsuit, counsel for the plaintiff attempted to obtain proper summons forms for completion, issuance, and service upon the United States. Following service of the summons, the United States sought dismissal of the lawsuit for failure to accomplish service as expeditiously as required by the Suits in Admiralty Act. The district court issued an order dismissing the action based on a failure to issue and serve summons on the defendant in a timely manner. On appeal, the Fifth Circuit Court of Appeals affirmed. After granting certiorari, the Supreme Court found the term in Rule 4(j) was a fixed time limit, not subject to judicial reduction: We reject the Government's view of the time the Federal Rules authorize for service. Reading Rule 4 in its historical context, we conclude that the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance. . . . The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow. . . . [T]he core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections. Seeing service in this light, and in view of the uniform system Rule 4 of the Federal Rules of Civil Procedure provides, we are satisfied that the service "forthwith" provision of Suits in Admiralty Act, 46 U.S.C.App. § 742, has been displaced by Rule 4, and therefore has no current force or effect. Id. at 661, 663, 671-72. See also State Farm Fire & Cas. Co. v. Smith, 39 So. 2d 1172, 1176 (Ala. Ct. App. 2009) (applying Henderson and finding trial court dismissal for insufficient service premature when issued prior to expiration of Rule 4(b), Ala. R. Civ. P.). ¶12 We find the rationale set forth in Henderson to be persuasive. By interpreting 12 O.S.Supp.2002 § 2004(I) as providing an outer limit not subject to reduction we promote uniformity and fairness in litigation. In other words, we eliminate the possibility for arbitrary dismissals of cases based on individual judges' expectations in a lawsuit.7 Accordingly, we reverse the trial court's dismissal of the plaintiff's action and remand to allow the remaining time allotted under § 2004(I) to complete service on the defendants. Conclusion ¶13 It has been the policy of this Court to resolve pending legal cases, when feasible, on their merits. As we explained in Boston v. Buchanan, 2003 OK 114, ¶¶ 17-19, 89 P.3d 1034, 1040-41: While it is true that diligence of litigants in attending to their matters pending in the courts is of importance, and while it is a significant function of the courts that the litigation before them be determined and disposed of as rapidly as possible, it is also important that all litigants be given a reasonable opportunity to have their day in court, and to have their rights and liberties tried upon the merits. The latter is and should be the primary right of the parties and duty of the courts. Thus, the terms of 12 O.S.Supp. 2002 § 2004, should be construed to promote the aforementioned policy and to further the judicial goals of fair and uniform administration of justice. A bright-line rule better serves both of these ends. Accordingly, we conclude Rule 9(a) directly conflicts with 12 O.S.Supp. 2002 § 2004(I) to the extent it shortens a plaintiff's allocated time for service of summons. Cornett should be allowed an additional eighty-four days to complete service. Today's decision renders Rule 9 unnecessary, and it is hereby stricken from the Rules for the District Courts of Oklahoma.8 On remand, the trial court is directed to allow Cornett the remaining time authorized by § 2004(I) to issue summons and complete service on the defendants. ¶14 Today's decision shall apply prospectively--controlling only those cases currently pending or filed after the issuance of this opinion. It shall have no effect on cases dismissed pursuant to Rule 9(a) that have become final judgments.9 COCA OPINION VACATED; TRIAL COURT'S ORDERDISMISSING PLAINTIFF/APPELLANT'S ACTION REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S DECISION. ¶15 CONCUR: Colbert, C.J., Reif, V.C.J., Watt, Edmondson and Gurich, JJ. ¶16 DISSENT: Kauger, Winchester, Taylor and Combs, JJ. FOOTNOTES 1 Due to a docketing error, Cornett's attorney failed to appear for the pretrial conference and the action was dismissed. On May 1, 2008, a journal entry memorializing the dismissal was filed in Oklahoma County, Case No. CJ-2006-642. 2 Although the trial court's August 4, 2009 Order of Dismissal purported to be without prejudice, the effect of the dismissal could result in the bar of at least some of Cornett's claims. See, e.g., Hull v. Rich, 1993 OK 81, ¶ 6, 854 P.2d 903, 904 (recognizing 12 O.S. § 100 authorizes only one refiling of a case previously dismissed after the running of the statute of limitations). 3 Section 2004(I) was amended in 2009 to provide that failure to accomplish service upon a defendant within 180 days shall result in the action being "deemed dismissed," absent a showing of good cause. The amendment has no bearing on our decision in this case. 4 Title 12 O.S.Supp. 2002 § 2004(A) provides that summons be issued "forthwith." However like FRCP Rule 4, which included the forthwith language until its removal by amendment, this condition places the burden on the court clerk to promptly issue summons; it does not impose a requirement on the litigants. See 4A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Richard L. Marcus, Federal Practice and Procedure § 1084 (3d ed. 2012); See also Dear v. Rathje, 485 F.2d 558, 560 (7th Cir. 1973) (construing the "forthwith" requirement in FRCP Rule 4 to impose a duty on the clerk). 5 Laws 1984, c. 164, (enacting the Oklahoma Pleading Code, repealing prior provisions relating to service of process, parties and pleading). The Code was modeled after the Federal Rules of Civil Procedure. Gay v. Akin, 1988 OK 150, ¶ 8, 766 P.2d 985, 990. 6 Prior to passage of the Oklahoma Pleading Code in 1984, an action was deemed "commenced" for purposes of the statute of limitations upon service of summons on the defendant. 12 O.S. 1981 § 97 (repealed 1984). Thus, the law implicitly required litigants to issue and serve summons to satisfy the relevant limitation period. Nevertheless, without a finite rule, a plaintiff could conceivably file a lawsuit and wait months or years to issue summons. With the adoption of 12 O.S. Supp. 1984 § 2003, an action is now commenced with the filing of a petition with the court. 7 See 4A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Richard L. Marcus, Federal Practice and Procedure § 1086 (3d ed. 2012) (explaining that "the 120-day period prescribed by Rule 4(m) provides an easily understood and administered guideline and also ensures notice to the defendant within a specified time.") 8 There is no valid reason to duplicate statutory requirements by amending Rule 9. Restrictions and deadlines relating to service of summons or diligence in prosecution are covered by statute as set forth in 12 O.S.Supp. 2002 § 2004(I) and 12 O.S.Supp. 2007 § 1083. 9 See Depuy v. Hoeme, 1989 OK 42, ¶ 10, 775 P.2d 1339, 1343-1344 (explaining that a judgment stands as final when the time to appeal has expired, is impervious to reconsideration, and is binding on the parties).\ COMBS, J., with whom KAUGER, WINCHESTER and TAYLOR, JJ., join, dissenting: ¶1 The majority opinion conclusion to strike Rule 9 from the Rules of the District Courts of Oklahoma is a position I cannot support. The majority finds Rule 9(a) directly conflicts with 12 O.S.Supp. 2002 § 2004(I) "to the extent it shortens a plaintiff's allocated time for service of summons". Rule 9(a) concerns the issuance of summons not service of summons and therefor does not shorten the time for service of summons, but rather allows for the trial court to manage the docket. ¶2 Robert Cornett, appeals the district court's sua sponte order dismissing this case without prejudice on the basis that Cornett failed to issue summons or file a waiver pursuant to Rule 9(a) of the Rules for District Courts of Oklahoma, 12 O.S.2001, Ch. 2 App. Cornett asserts the district court erred in dismissing this case pursuant to Rule 9(a) because this rule conflicts with 12 O.S.Supp. 2002 § 2004(I). Cornett further asserts his actions were not dilatory and he should have been given the opportunity to show good cause for the delay in issuing summons. ¶3 Rule 9(a) provides an established, long recognized method for the District Court to manage its docket. This section reads: Rule 9 Diligence in Prosecution a. In a case in which summons is not issued or waiver filed within ninety (90) days after the filing of the petition, or alias summons is not issued within (30) days after the return of the summons not served, the action may be dismissed by the court without notice to the plaintiff. (Emphasis added) Title 12 O.S. Supp. 2002 § 2004 (I) provides : SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within (180) days after the filing of a petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. The action shall not be dismissed where a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition. ¶4 Rule 9(a) does not conflict with 12 O.S.Supp. 2002 § 2004(I). Rule 9(a) pertains to the issuance or waiver of summons. Section 2004(I) specifies the time limit within which service of process shall be made. Section 2004(I) clearly presupposes that summons has been issued in the case. There is no indication in the limited record that summons was ever issued in this case; therefore the 180 day time allowance for serving such summons under 12 O.S.Supp. 2002 § 2004(I) was never invoked. The present proceeding was first filed in January 2006, and was initially dismissed in March of 2008, without prejudice, for failure to appear at the pretrial conference. The journal entry reflecting this dismissal was filed on May 1, 2008. It was subsequently refilled in April of 2009, no summons was issued and the trial court dismissed the second suit on August 4, 2009 pursuant to Rule 9(a). There is no indication in the record that Cornett ever attempted to remedy the deficiency which caused the district court's invocation of Rule 9(a) or that he presented any facts supporting the reasons for delay in issuing summons1. See, Willis v. Sequoyah House, Inc., 2008 OK 87, ¶¶ 13-15; 194 P.3d 1285. Cornett never sought a show cause order to explain his failure to issue summons. ¶5 Now in 2013, Cornett is allowed an additional 84 days to complete service of summons on a lawsuit first filed over 7 years ago. Rule 9(a) allows the trial court to manage its docket. The consideration of Rule 9(a) and 12 O.S. 2004.1 are not inconsistent but provide for a stair stepped approach allowing a trial court the opportunity to dispose of litigation as rapidly as possible for all parties. A plaintiff's access to the courts must be balanced with the defendant's opportunity to respond to frivolous filings meant to cloud dockets and inflict unnecessary strife.2 ¶6 The issuance of summons within 90 days of the filing of the petition is not an unreasonable requirement. A defendant should be able to rely upon the court's discretionary disposal of proceedings filed but not pursued within 90 days. Why require the defendant to be in limbo for 180 days? The dismissal is without prejudice to refiling and a plaintiff's access to the courts is not significantly impaired. Rule 9(a) provides a balancing of the scales of justice for all litigants. I respectfully dissent to the majority opinion rendering Rule 9 unnecessary and striking it from the Rules for the District Courts of Oklahoma. I would find the district court did not abuse its discretion in dismissing this case without first ordering Cornett to show good cause why it should not be dismissed. The district court's order of dismissal should be affirmed. FOOTNOTES 1 Rule 9(b) provides: "Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S. 1981 § 1083." 2 Consider the effects of simply filing a petition as in the present matter. 12 O.S. § 2004.2 Notice of pendency of action, provides in pertinent part: A. Upon the filing of a petition, the action is pending so as to charge third persons with notice of its pendency. While an action is pending, no third person shall acquire an interest in the subject matter of the suit as against the prevailing party's title: …. 2 Notice of the pendency of an action shall have no effect unless service of process is made upon the defendant or service by publication is commenced within one hundred twenty (120) days after the filing of the petition. Emphasis added.

77ac751a-f9f0-4926-9084-28ee26efe12e

W.R. Allison Enterprises, Inc. v. CompSource of Oklahoma

oklahoma

Oklahoma Supreme Court

W.R. ALLISON ENTERPRISES, INC. v. COMPSOURCE OKLAHOMA2013 OK 24Case Number: 111118Decided: 04/09/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. W.R. ALLISON ENTERPRISES, INC., a corporation, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs/Respondents, v. COMPSOURCE OKLAHOMA, Defendant/Petitioner. CERTIORARI REVIEW OF CERTIFIED INTERLOCUTORY ORDER ¶0 The trial court granted partial summary judgment in favor of plaintiff and certified the interlocutory order for immediate review. The certified interlocutory order decided that, when an insured employer requests that a workers' compensation insurance policy be canceled, the insurer must refund the prepaid premium on a pro rata basis pursuant to 85 O.S.2001, § 67.1. The insurer filed a petition for certiorari review arguing that the pro rata refund provisions in the statute apply only when the insurer initiates the cancellation. We granted the petition for certiorari review. We find 1) the statute is ambiguous as to insured-initiated cancellations of workers' compensation insurance policies; 2) the state insurance department has, for many years, applied the statute only to insurer-initiated cancellations; and 3) the plaintiff/respondent did not establish any cogent reason why this Court should not defer to the department's longstanding application. We reverse the trial court. CERTIFIED INTERLOCUTORY ORDER REVERSED; CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. George W. Dahnke, Patricia L. Franz, Oklahoma City, Oklahoma, for defendant/petitioner. Duke Halley, John Walkup, Oklahoma City, Oklahoma, for plaintiffs/respondents. TAYLOR, J. ¶1 We previously granted the defendant/petitioner's, CompSource Oklahoma's (CompSource), petition for certiorari review of a first impression question of law: Whether 85 O.S.2001, § 67.11 applied to all cancellations of workers' compensation insurance, both insured-initiated and insurer-initiated. We conclude the longstanding construction and application of § 67.1 of Title 85 of the Oklahoma Statutes by the Oklahoma Insurance Department required CompSource to make a pro rata refund of unearned premium only if CompSource initiated the cancellation of a workers' compensation insurance policy, and we find the appellate record does not establish any cogent reason why this Court should not defer to that longstanding application. We hold that § 67.1 of Title 85 of the Oklahoma Statutes did not require CompSource to make a pro rata refund of unearned prepaid premium to W.R. Allison Enterprises, Inc. (Allison). I. Facts and Procedural Background ¶2 The material facts are not disputed. Allison is a small business Oklahoma corporation operated by its sole owner. Allison hired an employee in early 2009 and secured workers' compensation and employers' liability insurance from CompSource. The policy provided workers' compensation and employers' liability coverage for Allison's employee for a period from February 3, 2009, to February 1, 2010. Allison prepaid the estimated annual premium in the amount of $801.00. ¶3 The employee worked for Allison until March 19, 2009. Allison asked its insurance agent to cancel the workers' compensation insurance policy. By letter dated April 8, 2009, CompSource acknowledged the cancellation request and advised that it would issue a ten-day notice of cancellation2 on a short rate basis3 in conformance with the insurance policy. CompSource prepared a final audit report for the pay period from February 3, 2009 to April 22, 2009, calculating the gross premium to be $491.00, the short rate cancellation penalty to be $244.00, and a catastrophe premium to be $45.00 for a total of $780.00. CompSource subtracted the $780.00 from the estimated prepaid $801.00 annual premium and refunded the remainder as the unearned premium calculated on a short rate basis. ¶4 The insurance policy, at Part 6(D)(1), expressly permitted Allison's cancellation: "You may cancel this policy. You must mail or deliver advance written notice to us stating when the cancellation is to take effect." At Part 5(F)(2), it provided for a short rate penalty charge if Allison cancels the policy: If you cancel, final premium will be more than pro rata: it will be based on the time this policy was in force, and increased by our short rate cancellation table and procedure. Final premium will not be less than the minimum premium. At Part 5(F)(1), the insurance policy provided for a pro rata refund of the prepaid premium if Compsource cancelled the policy,4 and at Part 6(D)(4), it provided that "any conflict with a law that controls the cancellation of the insurance in this policy is changed by this statement to comply with that law." ¶5 Allison took the position that the short rate penalty charge conflicted with 85 O.S.2001, § 67.1 which expressly required the insurance company to refund a pro rata share of the prepaid premium if it canceled a policy and that the policy's short rate penalty provision was changed, by operation of law, to comply with § 67.1. Allison filed suit against CompSource on behalf of itself and other similarly situated employers to recover the short rate penalties charged by CompSource. In its third amended petition, Allison alleged CompSource's refusal to return the $244.00 short rate penalty charge constituted a breach of the insurance policy as impliedly amended by § 67.1. Allison also alleged that when § 67.1 was enacted in 1949, insurance companies routinely charged the short rate penalty upon an insured-initiated cancellation but not upon an insurer-initiated cancellation in violation of the mutuality of obligation between insured and insurer; that the purpose of § 67.1 was to forbid the short rate penalty charge; and that § 67.1 accomplished nothing if the short rate penalty continued. Allison further alleged that the class of insured employers which have been charged the short rate penalty is so numerous that joinder of all class members is impracticable and asked that the class be certified. ¶6 Allison asserted that insurance policies are canceled by CompSource whether the cancellations were insured-initiated or insurer-initiated, and that § 67.1 applied to all cancellations by CompSource. Allison moved for summary judgment on the issue of whether the short rate penalty charged by Compsource when it canceled policies was unlawful under § 67.1. ¶7 CompSource filed a response to Allison's motion for summary judgment and a counter-motion for summary judgment. CompSource took the position that the short rate penalty calculation of the amount of prepaid premium to be refunded when an insured requested cancellation of an insurance policy is a longstanding industry practice historically approved by the State Insurance Commissioner, and that the courts should defer to the longstanding application of a statute by the state agency vested with its enforcement. In support of its position, CompSource alleged that it is a member of the National Council on Compensation Insurance (NCCI), a licensed advisory and rating organization in the State of Oklahoma; that it utilizes the Basic Manual for Workers' Compensation and Employers' Liability Insurance published by NCCI; that NCCI submits its short rate cancellation computation tables and procedure to the Oklahoma Insurance Department for approval; and that, for at least the past thirty years, CompSource has utilized a standard insurance policy form developed by NCCI which contains a provision for prepaid premium refunds calculated on a short rate basis upon insured-initiated cancellations. CompSource submitted documentary evidence to show the truth of these allegations, and Allison did not dispute the allegations. CompSource also argued that, on its face, § 67.1 applied only to insurer-initiated cancellations. ¶8 The trial court granted partial summary judgment in favor of Allison, ruling: that 85 O.S. § 67.1 applies to all cancellations, whether instituted by the insured or the insurer and, therefore, that CompSource Oklahoma was required to make a pro rata refund of unearned premium in connection with all cancellations while the statute was in effect, including the cancellation requested by Plaintiff W.R. Allison. The trial court overruled CompSource's counter motion for summary judgment. The trial court certified the interlocutory partial summary judgment for appeal, finding there is no existing Oklahoma authority resolving this question of law and concluding an immediate appeal will best serve the goal of efficient administration of justice and materially advance the ultimate determination of the litigation. 12 O.S.2011, § 952(B)(3). Allison filed a motion for class action certification, and the trial court stayed ruling on the motion pending disposition of this appeal. ¶9 CompSource timely petitioned this Court for review of the interlocutory partial summary judgment order,5 arguing that for more than a century, contracts of insurance have drawn a distinction between cancellations by insurers and cancellations by insureds, citing Taylor v. Insurance Co. of North America, 1909 OK 298, 105 P. 354, 138 Am.St.Rep. 906; that the plain language in 85 O.S.2001, § 67.1 extends that section to cancellations initiated by insurers only, citing Matter of Protest Against Tax Levy of Ardmore Ind. School No. 19, 1998 OK 43, ¶14, 959 P.2d 580, 584; and that the courts must give deference to the Insurance Commissioner's approval of use of the short rate calculations, citing United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, 789 P.2d 1305, 1311. Allison responded to the petition for certiorari, urging that it be denied until the trial court rules on the class certification. We granted the petition for certiorari review. II. Standard of Review ¶10 At issue here is the meaning of language in 85 O.S.2001, § 67.1. The meaning of statutory language presents a pure question of law that stands before us for de novo review without deference to the lower court. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶6, 16 P.3d 1120, 1122-1123. III. 85 O.S.2001, § 67.1 ¶11 Section 67.1 of Title 85 of the 2001 Oklahoma Statutes was enacted in 1949.6 The 1949 enactment7 consisted of four sections - the first section provided for a payroll audit and the return of unearned premium if an insurance company canceled a policy, the second made violation of the first section a misdemeanor and provided for punishment by a fine, the third provided for severability, and the fourth repealed any law that conflicted with the first section. When it was repealed, effective August 26, 2011,8 the language in the first section of the 1949 enactment, § 67.1, remained the same as originally enacted. Section 67.1 read: If any insurance company shall cancel any policy of Workmen's Compensation insurance issued by it upon risks within this state, the premium or consideration therefor, or any part therefor having been actually paid, it shall, within one hundred eighty (180) days after the effective date of said cancellation, make an audit of the payroll of such risk to determine the portion of said premium or consideration which has been earned and the portion thereof which has not been earned, respectively, and furnish a copy of said audit to the policyholder and return, within a reasonable time after the effective date of such cancellation, the unearned portion of the premium or consideration actually paid, said company retaining only the pro rata part thereof. ¶12 On certiorari, Allison argues that with the words "insurance company shall cancel" and "retaining only the pro rata part" in § 67.1, the 1949 Legislature intended to mandate an insurance company to refund the prepaid premium on a pro rata basis when the insured requested the policy be cancelled. Allison's legislative intent argument is grounded in the 1949 insurance industry custom of calculating prepaid premium refunds on a short rate penalty basis for insured-initiated cancellations and calculating the refund on a pro rata basis for insurer-initiated cancellations. Allison asserts that if the 1949 Legislature did not intend to change the industry custom and mandate refund of the prepaid premium on a pro rata basis for both insured-initiated and insurer-initiated cancellations, then the statute did nothing. ¶13 On certiorari, CompSource argues that the trial court ruling is contrary to the plain meaning of the statutory language, or alternatively, it is contrary to the legislative intent gleaned from the face of the statute. CompSource urges that we need not speculate about legislative intent in § 67.1 because it unambiguously applied only to insurer-initiated policy cancellations in its opening words - "If any insurance company shall cancel any policy of Workmen's Compensation insurance issued by it upon risks within this state . . . ." CompSource argues that the word "shall" in this phrase is not a mandatory word, rather it concerns future cancellations by insurance companies. CompSource further argues that if we must speculate about legislative intent, then the purpose to be gleaned from the face of the statute is the imposition of the 180-day deadline for the insurer to complete the payroll audit to determine the final earned premium amount. ¶14 In reviewing a legislative enactment, we first turn to the plain language of the statute. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶9, 130 P.3d 213, 219. The Legislature is presumed to have expressed its intent in the text of the statute. Id. Here, the plain language of the statute addresses situations where the insurance company cancels a workers' compensation insurance policy that covers risk in Oklahoma. Because § 67.1 does not mention insured-initiated or insurer-initiated cancellations, it could be read to apply to both as Allison argues. On the other hand, because it provides for the insurance company to retain only a pro rata part, it could be read to apply only to insurer-initiated cancellations which, both Allison and Compsource agree, was the custom in 1949. The parties' arguments bring into focus the ambiguity in the language and the questions of legislative intent: Whether the 1949 Legislature intended this section to apply only when the insurance company decided to cancel the insurance policy or whether the 1949 Legislature intended the statute to also apply when the employer requested the policy be canceled. ¶15 The following established rules of statutory construction are applicable. The primary goal in reviewing a statute is to ascertain legislative intent, if possible, from a reading of the statutory language in its plain and ordinary meaning. State ex rel. Oklahoma State Dept. of Health v. Robertson, 2006 OK 99, ¶6, 152 P.3d 875, 877-878. If the meaning of a provision is not clear, the ambiguous terms will be considered in the context of the statute and will be harmonized with other relevant sections. State ex rel. Oklahoma State Dept. of Health v. Robertson, 2006 OK 99, ¶7, 152 P.3d 875, 878; Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶23, 180 P.3d 1205, 1211-1212. The language in the title of a legislative enactment is a proper guide in ascertaining the intent of the statute. Naylor v. Petuskey, 1992 OK 88, 834 P.2d 439, 440-441. Deference will be afforded to the long-standing construction of a statute by an agency charged with its enforcement. United Airlines, Inc. v. State Bd. of Equalization, 789 P.2d at 311-312. ¶16 Having determined that the plain language of § 67.1 is subject to more than a single interpretation and the words are ambiguous in the context of the statute, we turn to the title of the 1949 legislative enactment. The title of the 1949 legislative enactment read: AN ACT relating to the cancellation of Workmen's Compensation policies of insurance, providing for payroll audits and return of unearned premiums, making violation of this Act a misdemeanor, providing punishment therefor, making the provisions hereof severable, repealing conflicting law; and declaring an emergency. The legislative intent of § 67.1 to provide for payroll audits and return of unearned premiums relating to cancellation of a workers' compensation insurance policies is clearly expressed in the above title. Although the statute expressly allows an insurance company canceling an insurance policy to retain "only the pro rata part" of the unearned prepaid premium, the above title does not mention pro rata refund of unearned premium nor does it mention short rate penalty charge. As expressed in the above title, the purpose of § 67.1 was to require insurance companies to timely perform payroll audits to determine the earned premium and to refund the unearned prepaid premiums. ¶17 Both the statute and the title to the legislative enactment are silent as to the insurance industry custom of calculating unearned premiums using the short rate penalty calculation for insured-initiated cancellation and the pro rata calculation for insurer-initiated cancellation. The parties agree the insurance industry custom of charging the short rate penalty when the insured requested a cancellation of the workers' compensation insurance policy was in place before the enactment of § 67.1. The custom did not change after its enactment in 1949. ¶18 The insurance industry's customary short rate calculation for insured-initiated cancellation and pro rata calculation for insurer-initiated cancellation continued for six decades after the enactment of § 67.1. The Oklahoma Insurance Department and the Oklahoma Insurance Commissioner continued to approve of the two customary methods of calculating unearned prepaid premiums, the Basic Manual for Workers' Compensation and Employers' Liability Insurance published by the National Council on Compensation Insurance continued to include the short rate cancellation computation tables, and the standard insurance policy form approved by the Oklahoma Insurance Department continued to contain a provision for prepaid premium refunds calculated on a short rate basis upon insured-initiated cancellations. ¶19 The longstanding application of § 67.1 by the Oklahoma Insurance Department is not controlling, but it must be given great weight, United Airlines, Inc. v. State Bd. of Equalization, 789 P.2d at 1311-1312, and it will not be disregarded or overturned except for a cogent reason. Oral Roberts University v. Okla. Tax Commission, 1985 OK 97, 714 P.2d 1013, 1015. We find the ambiguous language in § 67.1 permits the longstanding construction placed upon it by the Oklahoma Insurance Department, and we find no cogent reason in the appellate record to discard or overturn the agency's construction. ¶20 The Legislature convened many times since the enactment of § 67.1 and did not express its disapproval of the Oklahoma Insurance Department's continual construction of the statute. We regard the Legislature's silence as acquiescence in or approval of the Oklahoma Insurance Department's construction of the statute. United Airlines, Inc., 789 P.2d at 1311-1312. IV. Conclusion ¶21 We reject Allison's assertions that the purpose of § 67.1 was to forbid the short rate penalty charge; that the short rate penalty charge conflicted with 85 O.S.2001, § 67.1; and that the workers' compensation insurance policy's short rate penalty provision was changed, by operation of law, to comply with § 67.1. We conclude that the purpose of § 67.1 was to mandate the insurance companies to perform payroll audits and to return unearned premiums relating to cancellation of workers' compensation insurance policies.9 We defer to the longstanding construction and application of § 67.1 of Title 85 of the Oklahoma Statutes by the Oklahoma Insurance Department to require a pro rata refund of unearned premium only if the insurer initiated the cancellation of a workers' compensation insurance policy. We also conclude that § 67.1 did not operate to change the short rate penalty provisions in the workers' compensation insurance policy approved by the Oklahoma Insurance Department. We hold that § 67.1 of Title 85 of the Oklahoma Statutes did not require CompSource to make a pro rata refund of unearned prepaid premium to Allison. CERTIFIED INTERLOCUTORY ORDER REVERSED; CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL JUSTICES CONCUR. FOOTNOTES 1 The 2011 Legislature repealed § 67.1. 2011 Okla.Sess.Laws, ch. 318, § 87. 2 Pursuant to 85 O.S.2001, § 64(G), the insurer must file the notice of intent to cancel the insurance with the Administrator of the Workers' Compensation Court and serve a copy of the notice on the employer at least ten days prior to the cancellation date 3 Short rate basis for calculating the amount of the unearned premium to be refunded is a penalty method of calculation. The insurer keeps a percentage of the unearned premium determined from a short rate cancellation table when the insured initiates the cancellation. 4 Part 5(F)(1) of the policy provided: "If we cancel, final premium will be calculated pro rata based on the time this policy was in force." 5 Okla.Sup.Ct.R. 1.51, 12 O.S.2011, ch. 15, app. 1. 6 1949 Okla.Sess.Laws, ch. 3, § 1. 7 1949 Okla.Sess.Laws, ch. 3. 8 2011 Okla.Sess.Laws, ch. 318, § 87 . 9 We recently decided CompSource is not a "licensed insurer"as that term is used in § 3639(C) of the Oklahoma Insurance Code, 36 O.S.2001, §§ 101, et seq. Zaloudek Grain Company v. CompSource, 2012 OK 75, ___ P.3d ___, (rehearing denied March 25, 2013). The Zaloudek opinion observed that in canceling the workers' compensation liability insurance policy, CompSource made a credit refund pursuant to 85 O.S.2001, § 67.1. Id., 2012 OK 75, at ¶ 3 and n.3.

107bf064-5a97-45c9-aa43-06b26ebb1b64

Bosh v. Cherokee County Bldg. Authority.

oklahoma

Oklahoma Supreme Court

BOSH v. CHEROKEE COUNTY BUILDING AUTHORITY2013 OK 9Case Number: 111037Decided: 02/12/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DANIEL BOSH, Plaintiff,v.CHEROKEE COUNTY BUILDING AUTHORITY, et al., Defendant. CERTIFIED QUESTIONS OF LAW FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA Honorable James H. Payne, District Judge ¶0 The United States District Court for the Eastern District of Oklahoma certified four questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§1601-1611.1 We have reformulated2 the questions: 1. Does the Okla. Const. art. 2, §30 provide a private cause of action for excessive force, notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 §§151 et. seq.?3 2. If such a right exists, is the cause of action recognized retrospectively? 3. Are the standards of municipal liability coterminous with a Federal §1983 action or does the common law theory of respondeat superior apply to such action? We answer the questions as follows: 1. The Okla. Const. art 2, §30 provides a private cause of action for excessive force, notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 §§151 et seq. 2. The action is recognized retrospectively. 3. The common law theory of respondeat superior applies to municipal liability under such an action. QUESTIONS ANSWERED. J. Spencer Bryan, Steven J. Terrill, D. Mitchell Garrett Jr., Tulsa, Oklahoma, for Plaintiff.Stephen L. Geries, Jamison C. Whitson, Oklahoma City, Oklahoma, for Defendant. KAUGER, J.: ¶1 The United States District Court for the Eastern District of Oklahoma certified four questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§1601-1611, seeking clarification concerning the remedies available to a plaintiff who brings an excessive force lawsuit pursuant to the Okla. Const. art. 2, §30.4 We have reformulated the questions into three. FACTS ¶2 We note at the onset, that the facts presented by the parties in this Court are very limited and offer very little detail. It appears that on May 17, 2011, jailers at the Cherokee County Detention Center, a jail facility operated by the Cherokee County Governmental Building Authority (the Authority) attacked the plaintiff, Daniel Bosh (detainee), while he was standing at the booking desk of the Detention Center with his hands secured in restraints behind his back. Presumably the detainee was being booked into the jail, but no explanation is offered as to why he was standing at the booking desk, why he was restrained, with what he was restrained, or what crime he was charged with, if any, or whether he had been convicted. ¶3 Nevertheless, video surveillance of the events captured images of one of the jailers, the defendant Gordon Chronister, Jr. (Chronister), approaching the detainee and grabbing him behind his back. Chronister then proceeded to slam the detainee's head into the booking desk by holding him from the back of the neck. He then placed the detainee's head underneath his arm and deliberately fell backwards causing the detainee to strike the crown of his head on the floor. Other jailers quickly joined the assault and moved the detainee to the showers, outside of the purview of video surveillance. The assault continued in other various off camera locations for an undisclosed amount of time. Afterwards, the jailers let the detainee languish in his cell for two days before taking him to treatment at a Tulsa hospital. ¶4 As a result of the attack, the detainee suffered a fracture of his vertebrae and had to undergo surgery to fuse several of the discs along his spinal cord. On September 29, 2011, the detainee filed a lawsuit in state court against the Authority, the assistant jail administrator and the jailers who initiated the attack. He asserted 42 U.S. §1983 (Civil Rights) claims against the individuals and state law claims against the Authority. On October 24, 2011, the Authority removed the case to the United States District Court for the Eastern District of Oklahoma. On October 31, 2011, the Authority filed a motion to dismiss the state tort claims based on exemptions from liability provided by Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 §§151 et seq. (the OGTCA). ¶5 On December 6, 2011, the federal court permitted additional briefing on the motion to dismiss based upon the Oklahoma Court of Civil Appeals opinion in Bryson v. Oklahoma County ex. rel. Oklahoma County Det. Ctr., 2011 OK CIV APP 98, 261 P.3d 627 which was decided on August 30, 2011.5 On April 5, 2012, the federal court granted the Authority's motion to dismiss the detainee's state tort claims based on the Act, but the court permitted the detainee to amend his complaint to assert a claim of excessive force under art. 2, §30 of the Okla. Const.6 ¶6 On April 20, 2012, the detainee amended his complaint and the Authority filed a second motion to dismiss. On August 30, 2012, the United States District Court for the Eastern District of Oklahoma certified the questions of law to be answered to this Court. The certified questions were filed in this Court on September 5, 2012, and the next day, we ordered the parties to brief the issues. The briefing schedule was completed on October 8, 2012. I. THE OKLAHOMA CONSTITUTION, ART. 2, §30 PROVIDES A PRIVATECAUSE OF ACTION FOR EXCESSIVE FORCE NOTWITHSTANDINGTHE REQUIREMENTS/LIMITATIONS PROVIDED BY THE OKLAHOMAGOVERNMENTAL TORT CLAIMS ACT, 51 O.S. 2011 §§151 ET SEQ. ¶7 This controversy centers around the alleged conflict between the Oklahoma Constitution, which protects citizens of the State of Oklahoma from unreasonable seizures7 and the OGTCA which appears to allow the state, or, in this case the Authority, to elude tort liability when its employees beat and injure a citizen who is detained at one of its facilities.8 ¶8 The Authority acknowledges that a court may recognize private causes of action.9 Nevertheless, it argues that it cannot be held liable for its employees who exert excessive force against detainees because the OGTCA immunizes it from any liability for the operation of any prison, jail or correctional facility.10 The detainee contends that regardless of what the OGTCA immunizes, the Okla. Const. art. 2, §3011 protects citizens from being physically abused by the employees of state and local entities that operate jails and correctional facilities, and such protection includes legal liability for such conduct. ¶9 Employers being held legally liable for the acts of their employees is nothing new. Under the common law doctrine of respondeat superior a principal or employer is generally held liable for the wilful acts of an agent or employee acting within the scope of the employment in furtherance of assigned duties.12 The doctrine rests on the premise that the employer answers for an employee's conduct provided the employee was acting within the scope of employment.13 An employer is liable for an employee's torts if the conduct was committed within the scope of employment.14 ¶10 Employer liability extends when an employee's conduct is an assault of excessive force if the conduct also occurs within one's scope of employment.15 Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing what is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business.16 ¶11 For example, in Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914, we addressed the question of whether a police officer was acting within the scope of employment and thus, whether the city was liable when the officer shoved an intoxicated 15-year-old who was handcuffed and not resisting arrest.17 In Nail, the 15 year-old brought suit against city, alleging that its employee, the arresting officer, injured him either intentionally and maliciously or negligently by excessive force. ¶12 We said that: As a general rule, it is not within the scope of an employee's employment to commit an assault on a third person. However, this general rule does not apply when the act is one which is `fairly and naturally incident to the business,' and is done `while the servant was engaged upon the master's business and be done, although mistakenly or ill advised, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business.' An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer. (Citations omitted.) ¶13 This rationale has been illustrated in at least 100 years of Oklahoma's caselaw. In Baker v. Saint Francis Hospital, 2005 OK 36, ¶18, 126 P.3d 602 a jury question was presented whether a daycare caregiver was acting within the scope of employment so as to hold her employer liable for intentionally striking a child's head on corner of shelf. The Court noted at ¶12 that: Oklahoma case law provides examples of cases involving torts for which the employer was held liable and those in which the employer was not held liable. Early in statehood the Court held that a railroad company was liable for the actions of the train auditor, who falsely imprisoned a passenger arising out of a controversy over the payment of a fare. The Court stated the general rule that a corporation, like an individual, is liable for any tort committed by its agent in the course of his employment, "even though the act is done wantonly and recklessly, or was against the express orders of the company." Chicago R. I. & P. Ry. Co. v. Radford, 1913 OK 7, ¶ 4, 129 P. 834, 837. Other cases holding the employer liable for the tort of the employee include: Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1 (the servant of the toll bridge company shot an automobile driver when he drove past the toll gate and failed to pay the toll); Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 40 P.2d 1090 (the servant of a corporation selling and servicing automobile batteries injured the plaintiff in a fight after the servant tried to repossess a battery from the plaintiff's vehicle); Mistletoe Express Service v. Culp, 1959 OK 250, 353 P.2d 9 (the servant for a common carrier of freight assaulted the plaintiff when he refused to accept a television tube after the common carrier denied the plaintiff's claim for damage in transit); and Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241 (the employee of a nursing home forcefully slapped a combative male Alzheimer's patient while bathing the patient).18 ¶14 However, different rules apply when the employer is a governmental entity. In Oklahoma, governmental entities were once protected from tort liability through the judicially created doctrine of governmental immunity.19 In 1983, in Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, we abrogated the court created doctrine of governmental immunity and acknowledged the Legislature's right to enact sovereign immunity by statute.20 ¶15 The Legislature's Political Subdivision Tort Claims Act, now known as the OGTCA, came to be known as the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort.21 Subject to specific limitations and exceptions, governmental immunity was waived under the OGTCA and governmental accountability was extended to torts for which a private person would be liable, unless they were committed in bad faith or in a malicious manner.22 ¶16 Under the OGTCA, the question for governmental employer liability continued to hinge on whether one acted within the scope of employment by engaging in work assigned, or if doing what was proper, necessary and usual to accomplish the work assigned, or doing that which was customary within the particular trade or business.23 Consequently, governmental employees such as police officers, whether on duty or off duty, have been held to the possibility that conduct such as striking arrestees,24 physically and verbally attacking customers of a private business,25 causing a car accident,26 or injuring detainees/arrestees,27 may have occurred within the scope of employment subjecting their employers to liability. ¶17 However, here, the assault was committed not by a police officer, but by an employee of a detention center, and the OGCTA expressly immunizes the state and political subdivisions such as counties and municipalities from liability arising out of the operation of prison facilities.28 This does not mean that injured tort victims are at the mercy of their captors to be beaten, assaulted, and left without medical attention without any remedy to deter such conduct. ¶18 In Washington v. Barry, 2002 OK 45, 55 P.3d 1036, this Court held that a private cause of action may exist for inmates to recover for excessive force under the provisions of the Okla. Const. art. 2, §929 and the 8th Amendment of the United States Constitution30 -- despite the provisions of the OGTCA.31 ¶19 Washington, supra, involved a prisoner who alleged that he was injured when prison officials forcibly removed handcuffs and leg restraints from him. Thus the claim was for excessive force raised by a convicted prisoner in a penal institution. We addressed the existence of a cause of action for excessive force and the requirements a prisoner must meet to assert such a claim. We noted that our analysis differed significantly from prior cases involving pre-incarcerated individuals because plaintiffs who are not prisoners have significantly broader rights from the application of force by police officers making arrests than those who are incarcerated. Accordingly, a prisoner has a significantly greater burden to bear in establishing the right to a cause of action than does a person who is not incarcerated. ¶20 The Court further explained that: 1) the OGTCA barred the plaintiff's claims for assault and battery and intentional infliction of mental anguish and emotional distress; but 2) the nature of a claim made under the Oklahoma Constitution differs because a prisoner in a penal institution ordinarily has no right to recover for the use of excessive force by prison employees unless the force applied was so excessive that it violated the prisoner's right to be protected from the infliction of cruel or unusual punishment under the state and federal constitutions. ¶21 Though we held that the prisoner in Washington, supra, did not successfully state an actionable claim for excessive use of force by the defendant prison employees, we held such a potential cause of action existed in spite of the OGTCA. We also said that such a cause of action could also exist for persons who were not already incarcerated inmates, because they have significantly broader rights. ¶22 The Okla. Const. art. 2, §30 applies to citizens who are seized -- arrestees and pre-incarcerated detainees. In Washington, we declared that, not withstanding the provision of the OGTCA, a private action for excessive force exists pursuant to the Okla. Const. art 2, §9 for incarcerated persons. Having done so, and having explained that those not yet convicted are assured of even greater rights, it would defy reason to hold that pre-incarcerated detainees and arrestees are not provided at least the same protections of their rights, the same cause of action for excessive force under the Okla. Const. art. 2, §30.32 ¶23 The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity. Therefore we answer the reformulated question and hold that the Okla. Const. art 2, §30 provides a private cause of action for excessive force, notwithstanding the requirements and limitations of the OGTCA.33 II. Retrospective. ¶24 This is not new ground. We recognized a cause of action for excessive force in Washington v. Barry, 2002 OK 45, 55 P.3d 1036, for prisoners. The Court of Civil Appeals first recognized that the cause of action should extend to pre-incarcerated detainees in Bryson v. Oklahoma County, 2011 OK CIV APP 98, 261 P.3d 627. Today, we recognize that the Court of Civil Appeals' Opinion followed the legal ground which had been plowed by our precedent in Washington v. Barry, 2002 OK 45, 55 P.3d 1036. ¶24 The parties disagree whether our holding today should be applied retroactively, before the date of today's decision. This Court is neither prohibited from giving, nor compelled to give, judicial decisions retrospective operation.34 Judicial policy determines whether, and to what extent, a new rule will operate retroactively.35 We may give prospective operation to our announcements when necessary to avoid disruption and to allow a period for adjustment.36 In making such a determination, we must consider: 1) the purpose of the new rule; 2) the extent of reliance on old doctrines; and 3) the burden likely to be imposed on administering the legal process due to additional litigation or curative actions.37 ¶25 Today's holding was foreshadowed by our decision in Washington v. Barry, 2002 OK 45, 55 P.3d 1036. Recognizing today's holding retroactively will help to maintain a proper balance for law enforcement officials to constrain detainees as needed, but without using unnecessary excessive force that can cause permanent injuries to detainees. Retroactive application will only further and advance proper behavior. ¶26 No unfairness or undue hardship would be imposed upon the offending officials, but mere by prospective application would deprive detainees who have suffered injuries from recovering for those injuries. Virtually no inequity will result from retrospective application. Accordingly, we hold that today's decision shall be given retroactive application to all matters which were in the litigation pipeline, state and federal, when Bryson v. Oklahoma County, 2011 OK CIV APP 98, 261 P.3d 627 was decided as well as any claims which arose when Bryson, was decided. III. THE COMMON LAW THEORY OF RESPONDEAT SUPERIOR APPLIES TO SUCH ACTIONS. ¶27 The detainee argues that if a cause of action for excessive force is recognized under the Okla. Const., there is no reason to import federal constitutional standards that have been applied to §1983 civil rights actions to develop a body of state law. The Authority counters that although the Court does not have to so, it should adopt federal case law standards developed for §1983 actions rather than to adopt a respondeat superior standard of government liability. ¶28 Assaults of excessive force can certainly occur within one's scope of employment.38 Under 42 U.S.C. §1983, respondeat superior does not serve as a basis for government liability.39 Rather, other standards, depending on the conduct, are applied such as a governmental policy, custom, or direct participation by a governmental employer.40 However, Oklahoma is not bound by the constraints of federal law when determining whether the doctrine of respondeat superior serves as a basis for municipal liability under a cause of action for excessive force pursuant to the Okla. Const. art 2, §30.41 ¶29 Oklahoma recognizes the application of the doctrine of respondeat superior to the OGTCA.42 Indeed, in the context of law enforcement, we have taken pains to point out that a municipality is liable for the tortious acts of police officers committed within the scope of employment as defined by the OGTCA.43 ¶30 In other contexts, the scope of employment has included assaults with excessive force. For example: Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶12, 867 P.2d 1241 [Intoxicated nurse's aide slapping Alzheimer's patient was acting within the scope of employment.]; Mistletoe Express Serv. v. Culp., 1959 OK 250, ¶31, 353 P.2d 9 [Assault on customer by a truck driver within scope of employment.]; Brayton v. Carter, 1945 OK 289, ¶10, 163 P.2d 960 [Automobile accident within scope of employment even though occurred twenty-eight miles out of the way.]; Corn v. City of Sapulpa, 1941 OK 44, ¶4 , 110 P.2d 290 [Allegations withstood demurrer that employee could be acting within scope of employment even though he made an illegal u-turn while assigned to a task for employer]; Patsy Oil & Gas Co. v. Odom, 1939 OK 341, ¶28, 96 P.2d 302 [Employer held responsible for employee's taking dynamite caps to well even though employer had not authorized use of dynamite.]. ¶31 Although a claim for excessive force under the Okla. Const. art 2, §30 does not arise from the OGTCA, there is no reason why the doctrine of respondeat superior should not apply to hold employers liable for their employees violations of a plaintiff's rights under art. 2, §30 where the employees act within the scope of their employment.44 The problems of federalism which preclude the application of respondeat superior to §1983 actions are obviously not present when the action is for a violation of a state's constitution.45 Consequently, the common law doctrine of respondeat superior in tort litigation should apply under State law to municipal corporations. Accordingly, we hold that in an action pursuant to the Okla. Const. art 2, §30, respondeat superior applies to hold municipal corporations liable for the actions of their employees where those employees are acting within the scope of their employment. QUESTIONS ANSWERED. ¶32 The Okla. Const. art 2, §30 provides a private cause of action for excessive force, notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 §§151 et seq. This action is recognized retrospectively. The common law theory of respondeat superior applies to municipal liability under such an action to determine when an employee of a municipality uses excessive force within the scope of employment. COLBERT, C.J., REIF, V.C.J, KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur. WINCHESTER, TAYLOR, JJ., dissent. FOOTNOTES 1 The questions certified were as follows: 1. Does Oklahoma law recognize a private right of action for excessive force under Oklahoma Constitution art. 2, §30, as discussed by the Oklahoma Court of Civil Appeals in Bryson v. Oklahoma County ex rel. Oklahoma County Det. Ctr., 2011 OK CIV APP 98, ¶¶28-31, 261 P.3d 627, 638-40? 2. If Oklahoma recognizes such an action, is a right of action available for deprivations occurring before the Court of Civil Appeals' decision in Bryson? 3. If Oklahoma recognizes such a cause of action, are its standards of municipal liability coterminous with a federal cause of action pursuant to 28 U.S.C. §1983, or does Oklahoma law provide wider protections? 4. Specifically, does any actionable right under the Oklahoma Constitution art. 2, §30 impose municipal or entity liability under a theory of respondeat superior? 2 Title 20 O.S. 2011 §1602 provides: Power to Answer. The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state. Title 20 O.S. 2011 §1602.1 provides: The Supreme Court of this state may reformulate a question of law certified to it. 3 The Okla. Const. art. 2, §30 provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized. 4 The Okla. Const. art 2, §30, see note 3, supra. 5 In Bryson v. Oklahoma County ex rel. Oklahoma County Det. Ctr., 2011 OK CIV APP 98, 261 P.3d 627, the Court of Civil Appeals in a similar cause in which a jail detainee was attacked by a detention officer held that the trial court had improperly granted summary judgment based upon the detainee's assertion of his federal civil rights 42 U.S.C. §1983 claim based upon the alleged violation of the 4th Amendment to the United States Constitution and his claim based upon a violation of the Okla. Const. art. 2, §30. The 4th Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Okla. Const. art. 2, §30, see note 3, supra. 6 Okla. Const. art. 2, §30, see note 3, supra. 7 Okla. Const. art. 2, §30, see note 3, supra. 8 Title 51 O.S. Supp. 2012 §155 provides in pertinent part: The state or a political subdivision shall not be liable if a loss or claim results from:... 24. Provision, equipping, operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner or injuries by a prisoner to any other prisoner; provided, however, this provision shall not apply to claims from individuals not in the custody of the Department of Corrections based on accidents involving motor vehicles owned or operated by the Department of Corrections;... The relevant portions of the statute remain unchanged from the version in effect when the detainee's injuries occurred. 9 See, Ohio Casualty Ins. Co. v. Todd, 1991 OK 54, 813 P.2d 508. 10 Title 51 O.S. Supp. 2012 §155, see note 8, supra. 11 Okla. Const. art. 2, §30, see note 3, supra. 12 Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶5, 188 P.3d 158; N.H. v. Presbyterian Church, 1999 OK 88, ¶14, 998 P.2d 592. 13 Bierman v. Aramark Refreshment Services, Inc., 2008 OK 29, ¶3, fn. 3, 198 P.3d 877. Respondeat superior is a Latin phrase that translates to "let the superior answer." Sisk v. J.B. Hunt Transport, Inc., 2003 OK 69, ¶7, fn.15, 81 P.3d 55. Under the doctrine, an employer is liable to the general public for acts of its employee, provided the employee was acting within the scope of employment. State ex rel. Okla. Bar Ass'n v. Taylor, 2000 OK 35, ¶19, fn. 31, 4 P.3d 1242. 14 Baker v. Saint Francis Hospital, 2005 OK 36, ¶10, 126 P.3d 602 [Employer may be liable where the act is incidental to and done in the furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs.]; Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, ¶31, 21 P.2d 1. An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer. Rodebush By & Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶12, 867 P.2d 1241. 15 In N.H. v. Presbyterian Church, see note 12, supra, where we held that even a wilful assault can be within the scope of employment if: 1) the act is fairly and naturally incident to the employer's business; 2) the act occurs while the employee is engaged in an act for the employer; or 3) the assault arises from a natural impulse growing out of or incident to the attempt to complete the master's business. See also, Bierman v. Aramark Refreshment Services, Inc., see note 13, supra, which, although not an assault, the Court of Appeals decision that a negligent and drunk driver's determination that the accident occurred within the scope of employment was upheld on basis of res judicata. 16 Tuffy's Inc. v. City of Oklahoma City, 2009 OK 4, ¶7, 212 P.3d 1158; DeCorte v. Robinson, 1998 OK 87, ¶12, 969 P.2d 358; Nail v. City of Henryetta; 1996 OK 12, ¶11, 911 P.2d 914. 17 The predecessors to Nail v. City of Henryetta, see note 16, supra, were Parker v. City of Midwest City, 1993 OK 29, 850 P.2d 1065 and Holman By and Through Holman v. Wheeler, 1983 OK 72, 677 P.2d 645. Neither of these cases were dispositive of Nail's claim. In Parker, supra, this Court addressed the question of whether a municipality may be immunized from liability for a malicious prosecution action under the OGTCA. We recognized that generally: 1) individual employees are immunized from tort liability when they act within the scope of employment; 2) a municipality is not liable for any act or omission of an employee acting outside the scope of employment; and 3) the scope of employment is defined as the performance of an employee acting in good faith within the duties of office or employment or of tasks lawfully assigned. We noted that an employee could not be acting within the scope of employment if the employee acted maliciously, or in bad faith. Because a claim for malicious prosecution included elements of bad faith, we held that the municipality was immunized from liability under the OGTCA, and that only the individual police officer could be held liable in tort. In Holman, supra, a ten-year-old brought a tort action against a school superintendent, alleging that the superintendent violently and in a fit of intoxicated rage, spanked and beat the child with excessive force. The superintendent countered that: 1) his acts and conduct while he was punishing the child were within the scope of his employment; and 2) because he was acting within the scope of employment, he was immune from individual liability under the Act. The Holman Court found that the governmental immunity afforded by the OGTCA does not extend to employees who act in a wilful or wanton manner while performing functions within the scope of employment. Accordingly, because the superintendent acted in a wilful and wanton manner, we held that he was not protected by the Act, and that he could be held individually liable in tort. 18 Other cases exist in which the employer was not held liable including: Hill v. McQueen, 1951 OK 47, 230 P.2d 483 (the manager of a seed company assaulted a former independent sales contractor after the two got into an argument over a disputed debt); Oklahoma Ry. Co. v. Sandford, 1953 OK 394, 258 P.2d 604 (bus driver for bus company left his bus parked and assaulted the driver of an automobile and held him for arrest after the bus driver concluded he was drunk); Tulsa General Drivers, Warehousemen, and Helpers Union, Local No. 523 v. Conley, 1955 OK 277, 288 P.2d 750 (the agent of the union was picketing a business but left to follow the plaintiff four and one-half blocks to beat him with a board studded with nails, because he had crossed the picket line); Allison v. Gilmore, Gardner & Kirk, Inc., 1960 OK 48, 350 P.2d 287 (a gasoline truck driver was employed by the defendant to drive a truck and deliver gasoline, and while fulfilling those duties, assaulted the plaintiff who was climbing on the gasoline truck); and N. H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592 (A Presbyterian minister molested minors, including the plaintiff, during recreational activities aimed at recruiting new members and their families). 19 Fuller v. Odom, 1987 OK 64, ¶3, 741 P.2d 449; Vanderpool v. State, 1983 OK 82, ¶¶7-9, 672 P.2d 1153. 20 Fuller v. Odom, see note 19, supra. 21 Tuffy's, Inc.v. City of Oklahoma City, see note 16, supra; Teeter v. City of Edmond, 2004 OK 5, ¶21, 85 P.3d 817; Nail v. City of Henryetta, see note 16, supra; Fuller v. Odom, see note 9, supra at ¶4. 22 Tuffy's, Inc.v. City of Oklahoma City, see note 16, supra; Nail v. City of Henryetta, see note 17, supra; 23 Tuffy's Inc. v. City of Oklahoma City, see note 16, supra; DeCorte v. Robinson, see note 16, supra; Nail v. City of Henryetta; see note 17, supra. 24 DeCorte v. Robinson, see note 16, supra at ¶13, involved the misconduct of an off duty police officer who helped arrest a civilian driver and struck the driver and grabbed him by the throat while he was handcuffed resulting in a herniated disk in his neck which required surgery. The jury's determination that these actions were withing the scope of employment were affirmed on appeal. 25 Tuffy's, Inc. v. City of Oklahoma City, see note 16, supra, held that a municipality is not immunized from a negligence claim based on its officers actions in the midst of law enforcement if the tortious acts were committed within the scope of employment. The officers in question allegedly attacked, harassed and assaulted customers at a nightclub. 26 Fuller v. Odom, see note 19, supra. 27 In Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 2010 OK 9, ¶29, 230 P.3d 869, we held a fact question existed for a broken wrist and elbow allegedly sustained when the officer arrested a girl after a fight broke out in a school cafeteria. We noted that once an officer makes the decision to enforce a law by making an arrest, he or she must do so in a lawful manner. 28 Title 51 O.S. Supp. 2012 §155, see note 8, supra. 29 The Okla. Const. art. 2, §9 provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. 30 The 8th Amendment to the United States Constitution provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 31 Title 51 O.S. Supp. 2012 §155, see note 8, supra. 32 See, Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) (The applicable standards for federal claims of excessive force apply the same, whether the victim was a pretrial detainee or a convicted prisoner. The standard is whether or not a prison guard's application of force is actionable turns on whether that force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.). 33 In Binette v. Sabo, 244 Conn. 23, 45-46, 710 A.2d 688, 699 (Conn. 1998) the Connecticut Supreme Court addressed a private, Constitutional right of action for money damages against officials stemming form alleged violations of search and seizure and arrest. Following the analysis of the United States Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 20 L. Ed. 2d 619 (1971) the Court recognized that compelling policy considerations favored the creation of a constitutional tort to ensure the citizens a remedy when their constitutional rights were violated by a police officer or similar actor. The availability of other remedies did not defeat such a claim. In contrast, the Supreme Court of Alaska in State Dep't of Corr. v. Heisey, 271 P.3d 1082, 1093-94 (Ala. 2012) refused to recognize a state constitutional claim for excessive force by an inmate because such a claim was barred by the state's sovereign immunity and an alternative remedy of a §1983 claim was available. 34 Kruchowski v. Weyerhaeuser Co., 2008 OK 105, ¶26, 202 P.3d 144; Resolution Trust Corp. v. Grant, 1995 OK 68, ¶22, 901 P.2d 807; Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53 S. Ct. 145, 77 L. Ed. 360 (1932). Neither the United States Constitution nor the Constitution of the State of Oklahoma delineate the effective date of judicial opinions. 35 Kruchowski v. Weyerhaeuser Co., see note 34, supra; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, ¶16, 732 P.2d 438, cert. denied 483 U.S. 1007, 107 S. Ct. 3232, 97 L. Ed. 2d 738 and 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764 (1987). 36 Kruchowski v. Weyerhaeuser Co., see note 34, supra; Aple Auto Cash Express, Inc. v. State ex rel. Oklahoma Dept. of Consumer Credit, 2003 OK 89, ¶20, fn. 27, 78 P.3d 1231; Campbell v. White, 1993 OK 89, ¶18, 856 P.2d 255. In Great Northern Railway v. Sunburst Oil & Refining Co., see note 21, supra, a noncriminal cases involving no question of constitutional law, the Court developed the Sunburst Doctrine, holding that a state may choose for itself between the principle of relation back and forward operation of its precedents. Globe Life and Acc. Ins. Co. v. Oklahoma Tax Com'n, 1996 OK 39, ¶20, fn. 41, 913 P.2d 1322. 37 Kruchowski v. Weyerhaeuser Co., see note 34, supra; Resolution Trust Corp. v. Grant, see note 34, supra; Short v. Kiamichi Area Vo-Tech School, 1988 OK 89, ¶19, 761 P.2d 472, cert. denied 489 U.S. 1066, 109 S. Ct. 1341, 103 L. Ed. 2d 811 (1989); Henry R. Carlile Trust v. Cotton Petroleum Corp., see note 34, supra; Thompson v. Presbyterian Hosp. Inc., 1982 OK 87, ¶33, 652 P.2d 260. 38 In N.H. v. Presbyterian Church, see note 25, supra where we held that even a wilful assault can be within the scope of employment if: 1) the act is fairly and naturally incident to the employer's business; 2) the act occurs while the employee is engaged in an act for the employer; or 3) the assault arises from a natural impulse growing out of or incident to the attempt to complete the master's business. See also, Bierman v. Aramark Refreshment Services, Inc., see note 26, supra, which, although not an assault, the Court of Appeals decision that a negligent and drunk driver's determination that the accident occurred within the scope of employment was upheld on basis of res judicata. 39 Barnthouse v. City of Edmond, 2003 OK 42, ¶30, 73 P.3d 840 cert. denied Cochran v. Barnthouse, 540 U.S. 981, 124 S. Ct. 464, 157 L. Ed. 2d 371 (2003); Brander's Club, Inc. v. City of Lawton, 1996 OK 66, 918 P.2d 69, ¶11, 918 P.2d 69; Jett v. Dallas Indep. School Dist., 491 U.S. 701, 731, 109 S. Ct. 2702, 2721, 105 L. Ed. 2d 598 (1989); Monell v. City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 576 L. Ed. 2d 611 (1978). 40 See also, Estate of Crowell v. Board of County Commissioners of County of Cleveland, 2010 OK 5, 237 P.3d 134 (Recognizing that a §1983 action for the failure of prison officials to respond to an inmates medical attention requires the establishment of a deliberate indifference on the part of the employer.); Seiler v. City of Bethany, 1987 OK CIV APP 77, 746 P.2d 699 (Civil rights action required plaintiff to establish municipality had a policy of deliberate indifference before recovery could be had concerning alleged negligence in detainee's suicide.); Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (Deliberate indifference to prisoner's serious illness or injury constitutes cruel and unusual punishment.). 41 The Okla. Const. art 2 §30, see note 3, supra. Our holding is based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 1042, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201, 1214 (1983). State statutes or state constitutions which afford greater rights than the federal constitution must be determined by following state law. The state of Oklahoma in the exercise of its sovereign power may provide more expansive individual liberties than those conferred by the United States Constitution - it is only when state law provides less protection that the question must be determined by federal law. The Constitution of the State of Oklahoma contains independent sources of rights and liberties, which may, under some circumstances, offer more protection than the federal constitution. The Oklahoma Constitution does not merely project a mirror image of the federal constitution. The people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it speaks for every person as the supreme law and final authority for everything which is done in pursuance of its provisions. Turner v. City of Lawton, 1986 OK 51, ¶10, 733 P.2d 375. 42 Tuffy's, Inc.v. City of Oklahoma City, see note 16, supra; Speight v. Presley, see note 16, supra; DeCorte v. Robinson, see note 16, supra; Nail v. City of Henryetta see note 16, supra. 43 Morales v. City of Oklahoma City, see note 27, supra [If a tort is committed in the process of making an arrest, §155(4) does not provide immunity from suit to the officer's government employer for the resulting damages.]; Tuffy's Inc. v. City of Oklahoma City, see note 16, supra at ¶20 [To construe §155(4) as providing blanket immunity to political subdivisions for any claim arising from law enforcement would not conform to established precedent. We have consistently held that a municipality is liable for the tortious acts of police officers committed within the scope of employment as defined by the OGTCA.]. 44 Although the term respondeat superior is not expressly used, Illinois, another state which has also abrogated sovereign immunity for tort actions against municipalities, determined in Newell v. City of Elgin, 34 Ill. ApP.3d 719, 723, 340 N.E.2d 344, 348 (Ill. 1976), that a motorist injured during a high speed chase stated an action against the municipality noting that the officers were obviously acting in the execution or enforcement of law and that they were the agents and employees of the municipality. 45 Monell v. City of New York, see note 39, supra at 691-694 for a discussion of the problems of federalism and the interpretation of the express language of §1983 which preclude a federal recognition of the application of respondeat superior to §1983 actions.

0bd0a6bc-feae-400f-931a-447861784e7d

City of Choctaw v. Oklahoma Municipal Assurance Group

oklahoma

Oklahoma Supreme Court

CITY OF CHOCTAW v. OKLAHOMA MUNICIPAL ASSURANCE GROUP2013 OK 6Case Number: 109288Decided: 01/22/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CITY OF CHOCTAW, Plaintiff/Appellee, v. OKLAHOMA MUNICIPAL ASSURANCE GROUP, Defendant/Appellant. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE BARBARA G. SWINTON, DISTRICT JUDGE ¶0 The Oklahoma Municipal Assurance Group, defendant/appellant, appeals summary judgment granted in favor of the City of Choctaw, plaintiff/appellee, on an insurance claim to cover a judgment against the City of Choctaw, which claim had been denied by the defendant. JUDGMENT REVERSED AND REMANDED WITH DIRECTIONS. Rex Travis, Paul Kouri, Oklahoma City, Oklahoma, for plaintiff/appellee. Andrew W. Lester, Carrie L. Williams, LESTER, LOVING & DAVIES, P.C., Edmond, Oklahoma, and David W. Kirk, LYTLE SOULE & CURLEE, P.C., Oklahoma City, Oklahoma, for defendant/appellant. WINCHESTER, J. ¶1 In a dispute over insurance coverage between the plaintiff/appellee, City of Choctaw, and its insurer, Oklahoma Municipal Assurance Group (OMAG), defendant/appellant, the trial court granted a motion for summary judgment for Choctaw. Both in the trial court and on appeal, the city argued that OMAG should cover an inverse condemnation judgment entered against the city in a suit brought by a landowner, even though the city admits it obtained coverage from OMAG for liability imposed under the Governmental Tort Claims Act, 51 O.S.2011, §§ 151-172 (GTCA). ¶2 The court also found that OMAG was estopped to assert Choctaw was not covered by its policy with OMAG, and that the policy was unambiguous as to the amount of coverage, which was $1,000,000. The court entered judgment in favor of Choctaw for that amount plus costs and attorney fees, and pre-judgment interest at fifteen percent per annum pursuant to 36 O.S.2011, § 3629(B) from August 15, 2008, the date the claim should have been paid, until it is paid. We hold the trial court erred in granting summary judgment to Choctaw. ¶3 Two cities, Choctaw and The Village, formed OMAG in 1977, pursuant to the Interlocal Cooperation Act, now codified at 74 O.S.2011, §§ 1001-1008. That act allows municipalities to insure against tort liability by entering into cooperative agreements. OMAG reports it currently has over 450 municipalities that have pooled their risks. Its governing board consists of OMAG members, which determine the terms of the Plan. ¶4 On November 28, 2005, JORCO II, L.L.C. sued Choctaw and several Choctaw officials over JORCO's plan to build housing in that city, and its failure to approve the zoning of the property. OMAG assumed the defense, issuing letters to Choctaw reserving its rights. The Original Record indicates the case was removed to federal court on December 28, 2005, and remanded by the United States Court for the Western District on May 3, 2006. ¶5 OMAG's letter of January 6, 2006, informs Choctaw that the declarations page of the Plan provides a $1,000,000 liability limit for all covered losses to any person. The letter also provides: "No action by the Group, our claims adjusters or attorneys retained by the Group, should be construed by the Municipality or the individual defendants as a waiver of the rights of the Group to deny coverage or withdraw from the case." After the federal case had been remanded, OMAG sent another letter on July 28, 2006, entitled SUPPLEMENTAL RESERVATION OF RIGHTS. It informs Choctaw that the plaintiff (JORCO) had filed an amended petition that did not contain any federal civil rights law causes of action and brings all the previous causes of action under state law. The letter continues, "Now that there are no federal civil rights law causes of action, the Plan provides coverage to the extent that a municipality may be liable under the Governmental Tort Claims Act." ¶6 The amended petition to which the OMAG reservation letter refers was filed on July 7, 2006. After a motion by Choctaw to dismiss was denied on August 18, 2006, the city filed an answer to the amended petition on September 5, 2006. A motion for summary judgment by the city was denied on May 11, 2007, a pre-trial conference was held on May 30, 2007, and a motion to settle the pre-trial conference order was filed on October 10, 2007, with a hearing set for November 9, 2007. That hearing was struck as moot on that date. ¶7 On October 24, 2007, OMAG sent a certified letter to Choctaw. The letter, also entitled SUPPLEMENTAL RESERVATION OF RIGHTS, references OMAG's previous reservation of rights letters to Choctaw and the previous notice that the plaintiff had filed an amended petition. The letter additionally informs the city that the fifth cause of action of the amended petition comprises an allegation from JORCO that it had its property taken by inverse condemnation as a result of a conspiracy among the defendants. The letter then refers the city to an exclusion in the General Provisions of the Plan and that OMAG had no obligation to pay, nor did it have any obligation to defend any suit against a plan member alleging damages on account of "Loss arising out of or in any way in connection with the operation of the principles of eminent domain, condemnation proceeding, reverse or inverse condemnation, by whatever name called, . . . as a result of a cause of action filed pursuant to state or federal law."1 OMAG then informed Choctaw that based on the exclusion, "the Group contends it is not obligated to pay any claim or judgment that might be rendered against the City for inverse condemnation." The letter explains OMAG is giving this notice to the city in the event it desired to retain separate counsel. On November 20, 2007, Choctaw filed a motion to stay, which the court heard the next day. On that day two attorneys entered their appearances as counsel for the City of Choctaw. The court denied the stay. ¶8 The trial commenced on November 26, 2007, and after several days the jury ultimately found in favor of JORCO against Choctaw on an inverse condemnation claim, and awarded $1,700,000. A Journal Entry of Judgment was finally signed and filed on February 5, 2008, and Choctaw appealed. It subsequently moved to dismiss the appeal, which was granted, and a release and satisfaction was filed on June 30, 2009. The City of Choctaw's appellate brief informs this Court that the case was settled at an Appellate Settlement Conference for $1,700,000, even though costs and interest increased the judgment to more than $2,000,000. OMAG agreed to pay $250,000 of that agreed settlement. ¶9 On March 25, 2008, Choctaw filed a petition seeking a declaration that it had coverage under the insurance policies issued by OMAG, pursuant to 12 O.S.2011, § 1651.2 ¶10 The city asserts OMAG is subject to the general rules of liability imposed on all insurers. In OMAG's answers to interrogatories it concedes that it is considered an "insurer"3 due to the application of 36 O.S.2011, § 607.1.4 More particularly, the city argues that OMAG is estopped to deny coverage of the inverse condemnation claim, and therefore should pay the inverse condemnation judgment because OMAG undertook defense of the landowner's suit, which involved both GTCA claims and the inverse condemnation claim. ¶11 The chief problem with the city's attempt to use § 607.1 and OMAG's admission as a basis for coverage by estoppel lies in the fact that the provision does not make OMAG an "insurer" for all purposes. The statute makes OMAG an "insurer" only for the "kinds of insurance that the entity transacts." ¶12 The cities that formed OMAG created it to operate pursuant to 51 O.S.2011, § 167, most specifically, subsection C. That statute provides in pertinent part: "C. Notwithstanding any other provision of law, two or more municipalities or public agencies who are affiliated in an insurance program which was originated prior to January 1, 2006, by interlocal agreement made pursuant to Section 1001 et seq. of Title 74 of the Oklahoma Statutes, may provide insurance for any purpose by any one or more of the methods specified in this section. The pooling of self-insured reserves, claims or losses among governments as authorized in this act shall not be construed to be transacting insurance nor otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies." This section applies to "pooling of self-insured reserves, claims or losses among governments as authorized in this act," and the qualifying language "as authorized in this act" refers to "self-insured reserves, claims or losses" under the Governmental Tort Claims Act. "[A] cause of action grounded on inverse condemnation is not governed by the Governmental Tort Claims Act." It is "a special statutory proceeding for the purpose of ascertaining the compensation to be paid for appropriated or damaged property." Barton v. City of Midwest City, 2011 OK CIV APP 71, ¶ 24, 257 P.3d 422, 426. Coverage of inverse condemnation is not one of the "kinds of insurance that the entity [OMAG] transacts." 36 O.S.2011, § 607.1. ¶13 As we previously observed, OMAG gave the city notice prior to the trial of the landowner's suit that OMAG did not cover inverse condemnation and that it would not defend the city on this claim. The GTCA expressly provides, in pertinent part, that "If a policy or contract of liability insurance covering the state or political subdivision or its employees is applicable, the terms of the policy govern the rights and obligations of the state or political subdivision and the insurer with respect to the investigation, settlement, payment and defense of claims or suits against the state or political subdivision or its employees covered by the policy." 51 O.S.2011, § 158(C). An examination of the record reveals that OMAG properly limited its defense of the landowner's suit to claims that implicated the city's liability under the GTCA, notified the city of this fact, and did not mislead the city concerning the scope of OMAG's coverage or defense. ¶13 The summary judgment record filed with this Court discloses neither a legal nor factual basis for applying any theory of estoppel to make OMAG liable for the inverse condemnation judgment. Accordingly, we reverse the summary judgment in favor of the city, and remand with directions to enter summary judgment in favor of OMAG. JUDGMENT REVERSED AND REMANDED WITH DIRECTIONS. CONCUR: REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ. CONCUR IN PART, DISSENT IN PART: COLBERT, C.J., WATT, J. FOOTNOTES 1 Record on Accelerated Appeal, Tab 3, Exhibit 4, ¶11. 2 Title 12 O.S.2011, § 1651 provides: "District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. " 3 Record on Accelerated Appeal, Tab 5, Exhibit 2, Answer to Interrogatory No. 1. 4 Title 36 O.S.2011, § 607.1 provides: "An entity organized pursuant to the Interlocal Cooperation Act, Section 1001 et seq. of Title 74 of the Oklahoma Statutes, for the purpose of transacting insurance shall be considered an insurer at such time that the entity has within a twelve-month period received aggregate premiums of One Million Dollars ($1,000,000.00) for all kinds of insurance that the entity transacts. Such an entity shall be eligible to qualify for and hold a certificate of authority to transact insurance in this state." WATT, J., with whom COLBERT, C.J. joins, concurring in part and dissenting in part: ¶1 I concur in the majority opinion only to the extent that it determines the trial court erred in granting summary judgment to the plaintiff/appellee, City of Choctaw (Choctaw). Nevertheless, I dissent to its reversal of course and remand of the cause for the sole purpose of entering judgment in favor of the defendant/appellant, Oklahoma Municipal Assurance Group (OMAG), on an issue of fact where there are conflicting material facts which must be addressed by the trier of fact on a level playing field. ¶2 The majority orders entrance of summary judgment in favor of OMAG based on OMAG's having limited its defense to the landowner's suit and its failure to have "misled" Choctaw concerning the scope of its coverage or defense. In so doing, it ignores other, competing facts which weigh in favor of Choctaw, i.e. OMAG's: having undertaken defense of the cause; its indication that the elimination of federal civil rights causes of action would allow coverage to the municipality at least to some extent; participation in the settlement conference in which it agreed to pay $250,000.00; and it's concession that it should be considered an insurer. ¶3 Questions of waiver and estoppel are ordinarily ones of fact.1 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions, or other evidentiary material establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.2 Undoubtedly, there are disputed material facts in this cause. It is inappropriate for this Court to usurp the duty of the trier of fact to consider those facts and determine whether OMAG may be estopped to deny coverage. ¶4 The trial court erred when it entered judgment in favor of Choctaw in the face of disputed material facts. The majority does so here as it places itself in the shoes of the fact finders. I will do neither and so concur in part and dissent in part to the majority opinion. FOOTNOTES 1 Robinson v. Texhoma Limestone, Inc., 2004 OK 50, ¶10, 100 P.3d 673. See also, Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 209, 26, 22 P.3d 695. 2 Sullivan v. Buckhorn, 2005 OK 41, ¶36, 119 P.3d 192; Bogart v. Caprock Communications Corp., 2003 OK 38, ¶20, 69 P.d 266; Prichard v. City of Oklahoma City, 1999 OK 5, ¶19, 975 P.2d 914.

d35885ca-87d2-4b47-add1-068622bb3814

Wall v. Marouk

oklahoma

Oklahoma Supreme Court

WALL v. MAROUK2013 OK 36Case Number: 109005Decided: 06/04/2013IN THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Timothy Wall, Appellant,v.John S. Marouk, D.O., Appellee. CERTIORARI TO THE DISTRICT COURT OF TULSA COUNTY Honorable Dana Kuehn, Trial Judge ¶0 Appellant challenges the constitutionality of 12 O.S. 2011 §19, which requires filing of an affidavit of merit in actions for professional negligence. We granted certiorari to address the constitutionality of this statute. We hold that it is a special law which violates the Okla. Const. art. 5, §46, and that it also creates an unconstitutional financial burden on access to the courts in violation of the Okla. Const. art. 2, §6. CERTIORARI PREVIOUSLY GRANTED;ORDER OF THE DISTRICT COURT OVERRULED;REMANDED FOR FURTHER PROCEEDINGS. Glenn R. Beustring, Tulsa, Oklahoma, for Appellant.S. Lance Freije, Brian Jack Goree, Bob Latham, Ambar Iqbal Malik, Tulsa, Oklahoma, for Appellee. KAUGER, J.: ¶1 The dispositive issue presented is whether, in the aftermath of Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, the legislative amendment to 12 O.S. 2011§191 , removed the unconstitutional infirmity from the requirement of an affidavit of merit in any civil action for professional negligence. An examination of the Okla. Const. art. 5, §462, art. 2, §63, 63 O.S. 2011 §1-1708.1C, as well as prior case law, leads to the inevitable conclusion that it did not. We hold that it is a special law regulating the practice of law and that it places an impermissible financial burden on access to the courts. FACTS ¶2 Appellant Timothy Wall (Patient) filed a petition for medical negligence against Dr. John S. Marouk, D.O. (Physician) on August 11, 2010. The patient alleged that the physician negligently cut the median nerve in his right arm during a carpal tunnel surgery, resulting in loss of feeling in his right fingers. The patient did not attach an affidavit of merit as required by 12 O.S. 2011 §19. The physician filed a motion to dismiss on September 8, 2010, on the grounds that the patient failed to include the affidavit of merit. ¶3 In response to the physician's motion to dismiss, the patient argued that 12 O.S 2011 §19 was unconstitutional based on this court's holding in Zeier v. Zimmer. On December 9, 2010, the trial court entered a certified interlocutory order denying the physician's motion to dismiss, and giving the patient twenty days from the date of the order to file an affidavit of merit pursuant to 12 O.S 2011 §19 or face dismissal of the cause. On January 3, 2011, the trial court entered an amended certified interlocutory order stating that 12 O.S. 2011 §19 required an affidavit of merit finding the patient's arguments unpersuasive.4 On February 14, 2011, we granted the patient's Petition for Certiorari to Review a Certified Interlocutory Order and stayed proceedings in the trial court pending review on certiorari to consider the constitutionality of 12 O.S. 2011 §19. The cause was assigned to this office on February 28, 2013. I.TITLE 12 O.S. 2011 §19 IS A SPECIAL LAW WHICH VIOLATESTHE OKLA. CONST., ART. 5, §46. ¶4 Title 12 O.S. 2011 §19 essentially provides that in civil actions for professional negligence, the plaintiff must attach an expert's affidavit. It creates two classes, those who file a cause of action for negligence generally, and those who file a cause of action for professional negligence. The patient argues that §19 is unconstitutional because it violates the Okla. Const. art. 5, §46 prohibition on special laws. We agree. The Oklahoma Constitution is a unique document. Some of its provisions are unlike those in the constitutions of any other state, and some are more detailed and restrictive than those of other states. Section 46 is one of these provisions and it specifically prohibits the Legislature from enacting special laws dealing with twenty-eight subject areas.5 ¶5 A special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject of the law.6 A law is special if it confers particular privileges or imposes peculiar disabilities or burdensome conditions in the exercise of a common right on a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law.7 Special laws apply to less than the whole of a class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances, and thus do not have a uniform operation.8 The shortcoming of a special law is that it does not embrace all the classes that it should naturally embrace, and that it creates preference and establishes inequality. It applies to persons, things, and places possessed of certain qualities or situations and excludes from its effect other not dissimilar persons, things, or places.9 ¶6 Here, the distillate of art. 5, §46 is that the Legislature shall not pass a special law regulating the practice of judicial proceedings before the courts or any other tribunal.10 This is precisely the situation we face. Title 12 O.S. 2011 §19 creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors. In doing so, it places an out of the ordinary enhanced burden on these subgroups to access the courts by requiring victims of professional misconduct to obtain expert review in the form of an affidavit of merit prior to proceeding, and it requires the victims of professional misconduct to pay the cost of expert review.11 It does establish an impermissible special law regulating the practice of judicial proceedings before the courts. ¶7 The prohibition against special laws is not new. Even before statehood and the adoption of the Oklahoma Constitution, special laws were not permissible. In Guthrie Daily Leader v. Cameron, 1895 OK 71, 42 P. 635, the Supreme Court of the Territory of Oklahoma held that: A statute relating to persons or things as a class is a general law. One relating to particular persons or things of a class is special. The number of persons upon whom the law shall have any direct effect may be very few, by reason of the subject to which it relates, but it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides. Shortly after statehood, we held in Chickasha Cotton Oil Co. v. Lamb & Tyner, 1911 OK 68, 114 P. 333, 333, that the Okla. Const. art. 5, §46 prohibited the enactment of special or local laws upon any of the subjects named within it, except such local or special legislation upon subjects authorized by other provisions of the Okla. Constitution. ¶8 It is undisputed that during the course of litigation the plaintiffs will be required to prove their case, as any other cause requires. They just do not have to provide expert testimony before it can be filed. After the Field Code was replaced by the Oklahoma Pleading Code of 1984, access to the district court was simplified and streamlined.12 It recognized that there was one form of action - a civil action which was applicable to all suits of a civil nature. 13 Further, it specified that a short and plain statement of the claim showing that the pleader was entitled to relief was sufficient to constitute a pending claim.14 This form of notice pleading recognized that discovery, pretrial conferences, and summary judgments are more effective methods of performing the functions of disclosing the factual and legal issues in dispute, pretrial planning, and disposing of frivolous or unfounded claims and defenses which historically were performed by the pleadings.15 The requirement of an affidavit of merit before an action can proceed represents a step back from this more open pleading standard, and moreover, does not apply equally to all civil actions but only to a subset of the class--actions for professional negligence. A.Title 12 O.S. 2011 §19 is functionally identical to the affidavitrequirement found unconstitutional in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861. ¶9 In Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, we held that a previous incarnation of the affidavit of merit requirement, found at 63 O.S. Supp. 2003 §1-1708.1E was an unconstitutional special law.16 That law required an affidavit in any action for medical liability, whereas the current version of the requirement in §19 requires the affidavit in actions for professional negligence.17 ¶10 Interestingly, 12 O.S. 2011 §19 does not define professional negligence in the context of the affidavit requirement, nor does any other section of Title 12, the code of civil procedure.18 Professional negligence is defined only one place in the Oklahoma statutes. The definition is found in the Affordable Access to Health Care Act, the same Act that contained the original affidavit of merit provision we previously held unconstitutional in Zeier. Title 63 O.S. 2011 §1-1708.1C, the Definitions section of the Affordable Access to Health Care Act, defines professional negligence as: 5. "Professional negligence" means a negligent act or omission to act by a health care provider in the rendering of health care services, provided that such services are within the scope of services for which the health care provider is licensed, certified, or otherwise authorized to render by the laws of this state, and which are not within any restriction imposed by a hospital or the licensing agency of the health care provider… The same section defines medical liability action as: 3. "Medical liability action" means any civil action involving, or contingent upon, personal injury or wrongful death brought against a health care provider based on professional negligence… The medical affidavit requirement we previously found unconstitutional in Zeier was codified at §1-1708.1E, part of the very same Affordable Access to Health Care Act that contains these two definitions. It appears the Legislature re-enacted the affidavit requirement in a different title using the words professional negligence rather than medical liability but otherwise left the language essentially the same. But, the Legislature did not remove the two definitions from the Affordable Access to Health Care Act. ¶11 Codified at 63 O.S. Supp. 2003 §1-1708.1E, the original affidavit requirement provided in pertinent part: A. 1. In any medical liability action, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit… The language of the new affidavit requirement, codified at 12 O.S. 2011 §19 and which we examine today, provides in pertinent part: A. 1. In any civil action for professional negligence, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit Both the phrases medical liability action and professional negligence are defined at 63 O.S. 2011 §1-1708.1C, as discussed above, but not in §19. ¶12 It is within the province of the legislative body to define words appearing in legislative acts, and where an act passed by the legislature embodies a definition, it is binding on the courts.19 Title 25 O.S. 2011 §2 provides: Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where contrary intention plainly appears. When the provisions of a statute assign one meaning to a word or phrase, its definition will apply in every other instance in which the same word is found anywhere else in the statutory compilation.20 Section 19 does not contain a definition for professional negligence, but because professional negligence is defined in the Affordable Access to Health Care Act at 63 O.S. 2011 §1-1708.1C, the definition that professional negligence means an act or omission by a health care provider rendering health care services is applicable to §19. ¶13 It has long been settled in this state that one cannot do indirectly what cannot be done directly.21 An examination of the definitions for medical liability action and professional negligence illustrates that they are intrinsically tied together. An action for professional negligence is a medical liability action insofar as 63 O.S. 2011 §1-1708.1C is concerned. ¶14 Even without the definition of professional negligence found at 63 O.S. 2011 §1-1708.1C there are problems with vagueness. If the Legislature did not intend professional negligence to mean "a negligent act or omission to act by a health care provider in the rendering of health care services,"22 then what did they mean? Black's Law Dictionary defines professional as "[a] person who belongs to a learned profession or whose occupation requires of a high level of training and proficiency."23 Profession is further defined as: A vocation requiring advanced education and training; esp., one of the three traditional learned professions-- law, medicine, and the ministry.24 Does this mean that one is required to obtain an affidavit of merit pursuant to §19 before filing suit against any doctor, lawyer or clergyman for negligence in performing their duties? Is professional in this context intended to be broader still? Title 59 of the Oklahoma Statutes, entitled "Professions and Occupations," contains multiple subchapters that control the licensing and practice of what could be considered various professions in the State of Oklahoma. ¶15 For example, 59 O.S. 2011 §15.1A, which provides definitions under the Oklahoma Accountancy Act, defines accountancy as "the profession or practice of accounting."25 Title 59 O.S. 2011§396.2, concerning funeral services, defines a funeral establishment partly as "any place where any person or persons shall hold forth and be engaged in the profession of undertaking or funeral directing."26 Title 59 also contains other chapters for: barbers, cosmetology, plumbers and plumbing contractors, foresters, sanitarians and environmental specialists, bail bondsmen, pawnbrokers, and many more. Title 18 O.S. 2011 §803 provides definitions for the Professional Entity Act which governs the creation of professional corporations in Oklahoma. It includes a broad definition for professional service.27 ¶16 If the Legislature intended to apply the definition of professional negligence found in 63 O.S. 2011 §1-1708.1C, then the affidavit requirement applies to the same subclass and set of actions as the provision we found unconstitutional as a special law in Zeier. If the Legislature intended to avoid the prohibition on special laws by leaving professional negligence undefined, they have caused more problems than they solved. The provision would, taken to the ultimate logical conclusion, require an affidavit for almost every cause of action. B. Because the current incarnation of the affidavit of merit provisioncodified at 12 O.S. 2011 §19 is functionally the same as the previousunconstitutional provision analyzed in Zeier, it is also unconstitutional. ¶17 The affidavit of merit requirement contained within §19 still divides tort victims alleging negligence into two classes: those who pursue a cause of action for negligence generally and those who name professionals as defendants. It fails the test set forth in Zeier because an additional requirement is added to actions for professional negligence. Not only have we defined what a special law is since before statehood, we have reiterated repeatedly in Reynolds v. Porter, 1988 OK 88, §17, 760 P.2d 816, and a long line of other cases, that the Okla. Const. art. 5, §46 is an absolute and unequivocal prohibition against special legislation in the listed subject areas, in this instance the regulation of judicial proceedings.28 ¶18 We held in City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶8,133 P.3d 281, that general laws must apply equally to all classes similarly situated, and apply to like conditions and subjects. We also noted, citing Reynolds, that civil actions may be classified into specific categories of tort actions of a similar nature for statute of limitation purposes, and that doing so would not, for similar and more commanding reasons, constitute a special or local law that would violate the strictures contained in §46.29 However, we recognized that Reynolds held that a statute carving out a special class of tort victims, those who suffered medical malpractice, for purposes of applying a special three year statute of limitations was a special law.30 Because this Court held in Zeier that the first incarnation of the medical affidavit requirement found at 63 O.S. Supp. 2003 §1-1708.1E was an unconstitutional special law pursuant to the Okla. Const. art. 5, §46, it would be inconsistent to hold that the current iteration at §19, incorporating the same class of tort victims, definitions and requirements, is not. II.TITLE 12 O.S. 2011 §19 IS AN UNCONSTITUTIONALECONOMIC BURDEN ON ACCESS TO THE COURTSPURSUANT TO THE OKLA. CONST. ART. 2, §6. ¶19 The patient also alleges that 12 O.S. 2011 §19 creates an unconstitutional burden on access to the courts by requiring an affidavit of merit for any civil action for professional negligence.31 The Okla. Const. art. 2, §6 provides that: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. ¶20 In Barzellone v. Presley, 2005 OK 86, 126 P.3d 588, we examined the constitutionality of a $349 jury fee imposed by statute. We held that such fees are permissible, as long as they are reasonable, because the right of litigants to access the courts does not mean that they are entitled to do so at no cost.32 However, we were careful to qualify our decision, noting that: This opinion should not be read as a rubber stamp for any decision the Legislature might make on the amount of fees levied in association with jury trials. The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶20, 90 P.3d 546… The constitutional right to a jury trial is a personal right, Massey v. Farmers Ins. Group, 1992 OK 80, ¶16, 837 P.2d 880; Jenkins v. State, 1912 OK CR 8, 120 P. 298, which the Legislature cannot waive, Massey v. Farmers Ins. Group, 1992 OK 80, ¶16, 837 P.2d 880, through creating a fiscal barrier so unreasonable as to eliminate the right itself. When comparing the jury fee charge with a jury proceeding utilizing 6 jurors, it would appear that the $349.00 fee charge approaches the barrier beyond which the charge could not survive constitutional scrutiny.33 ¶21 A year later, we revisited the issue in Zeier v. Zimmer, Inc., 2006 OK 98, ¶19, 152 P.3d 861. There, we agreed with a patient that a statutorily created requirement for the payment of professional services as a prerequisite to filing a petition alleging medical negligence violated the guarantee of access to the courts.34 In Zeier, we calculated that the cost of obtaining a professional's opinion to support the affidavit of merit could range from $500.00 to $5,000.00. This was well above the $349.00 jury fee we examined and found valid in Barzellone.35 In Barzellone, we noted that the $349.00 jury fee was very close to crossing the line of being an unconstitutional burden on accessing the courts,36 and we held in Zeier that at a cost of $500.00 to $5,000.00, an affidavit of merit would clearly cross beyond that line.37 ¶22 Barzellone and Zeier illustrate that while reasonable fees to defray the cost of litigation are not a violation of the right of citizens to access the courts, the costs associated with obtaining affidavits of merit go beyond the bounds of reasonableness we set in Barzellone. As such, they create an impermissible hurdle unconstitutionally restricting the right of citizens to access the courts in violation of art. 2, §6 of the Oklahoma Constitution. ¶23 We are not persuaded that, in and of itself, the Comprehensive Lawsuit Reform Act of 2009 indigency provision enacted in 12 O.S. 2011 §19(D) serves to fully remedy these ills.38 The requirements for an indigency exception are set out in 12 O.S. 2011 §192.39 It requires a nonrefundable application fee of $40.00. Although it is considerably less than the cost of complying with the affidavit of merit provisions, $40.00 is still a hurdle to the indigent. The fact that the court may defer the fee if it determines that the person does not have the financial resources to pay at the time does not go far enough. Even so, the fee cannot be waived, only deferred to a later date.40 Access to the courts must be available to all comers through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities.41 Claimants may not have their fundamental right of court access withheld merely for nonpayment of some liability or conditioned coercive collection devices.42 ¶24 The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system.43 The Oklahoma courts were never intended to be self-funded, and the increasing degree to which they have become so is disturbing. Despite our holding in Fent v. State ex. rel. Dep't of Human Services, 2010 OK 2, 236 P.3d 61, the judicial department of government is burdened with collecting fees for thirty seven entities--only seven of which have a relationship to the third branch of government. The Okla. Const. art. 2, §6, guarantees the right of individuals to access the courts, and while litigation does not have to be free and entirely at the public expense, at the very least the provision means that justice cannot be for sale. The idea that money cannot be used as a bar to deny justice long predates the Oklahoma Constitution, and is one of the fundamental values of our legal system.44 ¶25 The Magna Carta, one of the oldest progenitors of American legal principles, states: "We will sell to no man, we will not deny or defer to any man, either justice or right."45 When the cost of obtaining an affidavit of merit in professional negligence actions is added to the already high and increasingly rising cost of using the court system to resolve disputes, the result is that a line is crossed, and litigation costs go from being merely a hurdle to being an unconstitutional burden on accessing the courts.46 CONCLUSION ¶26 Pursuant to art. 2, §6 of the Oklahoma Constitution, access to the court system is a fundamental right. Likewise, the Okla. Const. art. 5, §46 prohibition against special laws and the Okla. Const. art. 2, §6 are intertwined and serve the same ends. This is not new. It has been decided. This is the same issue we addressed in Zeier. Unless we ignore the Okla. Const. art. 2, §6 and art. 5, §46, the Oklahoma statute defining professional negligence found at 63 O.S. 2011 §1-1708.1C, and overrule Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, there is but one result we can reach. ¶27 Title 12 O.S. 2011 §19 creates a monetary barrier to access the court system, and then applies that barrier only to a specific subclass of potential tort victims, those who are the victims of professional negligence. The result is a law that is unconstitutional both as a special law, and as an undue financial barrier on access to the courts. Although we express no opinion on the viability of the patient's claim, because we hold 12 O.S. 2011 §19 to be unconstitutional, an affidavit of merit is not required. Therefore, we need not address the patient's claim that his res ipsa loquitur argument would circumvent the requirements of 12 O.S. 2011 §19. The district court's order requiring submission of an affidavit of merit is overruled, and this cause is remanded for further proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED;ORDER OF THE DISTRICT COURT OVERRULED;REMANDED FOR FURTHER PROCEEDINGS. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur. WINCHESTER and TAYLOR, JJ., dissent. FOOTNOTES 1 At the time this cause was commenced, the 2011 code volumes had not yet been published. However, as there has been no change in §19 since its codification, this opinion refers to the 2011 statutes rather than the 2009 Supplement. Title 12 O.S. 2011 §19 provides: A. 1. In any civil action for professional negligence, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that: a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert, b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable medical records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted professional negligence, and c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause. 2. If the civil action for professional negligence is filed: a. without an affidavit being attached to the petition, as required in paragraph 1 of this subsection, and b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling. 3. The written opinion from the qualified expert shall state the acts or omissions of the defendant or defendants that the expert then believes constituted professional negligence and shall include reasons explaining why the acts or omissions constituted professional negligence. The written opinion from the qualified expert shall not be admissible at trial for any purpose nor shall any inquiry be permitted with regard to the written opinion for any purpose either in discovery or at trial. B. 1. The court may, upon application of the plaintiff for good cause shown, grant the plaintiff an extension of time, not exceeding ninety (90) days after the date the petition is filed, except for good cause shown, to file in the action an affidavit attesting that the plaintiff has obtained a written opinion from a qualified expert as described in paragraph 1 of subsection A of this section. 2. If on the expiration of an extension period described in paragraph 1 of this subsection, the plaintiff has failed to file in the action an affidavit as described above, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to its refiling. If good cause is shown, the resulting extension shall in no event exceed sixty (60) days. C. 1. Upon written request of any defendant in a civil action for professional negligence, the plaintiff shall, within ten (10) business days after receipt of such request, provide the defendant with: a. a copy of the written opinion of a qualified expert mentioned in an affidavit filed pursuant to subsection A or B of this section, and b. an authorization from the plaintiff in a form that complies with applicable state and federal laws, including the Health Insurance Portability and Accountability Act of 1996, for the release of any and all medical records related to the plaintiff for a period commencing five (5) years prior to the incident that is at issue in the civil action for professional negligence. 2. If the plaintiff fails to comply with paragraph 1 of this subsection, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to its refiling. D. A plaintiff in a civil action for professional negligence may claim an exemption to the provisions of this section based on indigency pursuant to the qualification rules established as set forth in Section 4 of this act. (Internal citations omitted). 2 Okla. Const. art. 5, §46 provides: § 46. Local and special laws on certain subjects prohibited The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: The creation, extension, or impairing of liens; Regulating the affairs of counties, cities, towns, wards, or school districts; Changing the names of persons or places; Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys; Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state; Vacating roads, town plats, streets, or alleys; Relating to cemeteries, graveyards, or public grounds not owned by the State; Authorizing the adoption or legitimation of children; Locating or changing county seats; Incorporating cities, towns, or villages, or changing their charters; For the opening and conducting of elections, or fixing or changing the places of voting; Granting divorces; Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts; Changing the law of descent or succession; Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables; Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes; Fixing the rate of interest; Affecting the estates of minors, or persons under disability; Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury; Exempting property from taxation; Declaring any named person of age; Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability; Giving effect to informal or invalid wills or deeds; Summoning or impaneling grand or petit juries; For limitation of civil or criminal actions; For incorporating railroads or other works of internal improvements; Providing for change of venue in civil and criminal cases. (Emphasis added). 3 The Okla. Const. art 2, §6 provides: § 6. Courts of justice open--Remedies for wrongs--Sale, denial or delay The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. 4 The patient filed a Petition in Error on Certified Interlocutory order with this Court on December 14, 2010, in response to three minute orders issued by the trial court on December 7, 2010. On December 16, 2010, this Court ordered the patient to show cause why his appeal should not be dismissed for lack of an appealable order. On December 17, 2010, the physician filed a motion to dismiss arguing lack of an appealable order, and the patient responded on December 30, 2010. On January 4, 2011, this Court entered an order acknowledging the filing of the district court's Amended Certified Interlocutory Order on January 3, 2011. We directed the patient to file a supplemental petition for certiorari - certified interlocutory order no later than January 18, 2011. The patient filed his Amended Petition for Certiorari Certified Interlocutory Order, as well as a Motion to Retain, on January 11, 2011. This Court's grant of certiorari has rendered moot the patient's pending motion to retain. 5 Reynolds v. Porter, 1988 OK 88, §17, 760 P.2d 816. 6 Oklahoma City v. Griffin, 1965 OK 76, ¶8, 403 P.2d 463. 7 Oklahoma City v. Griffin, see note 6, supra at ¶3 (quoting Serve Yourself Gas, etc., Ass'n v. Brock, 39 Cal. 2d 813, 820, 249 P.2d 545). 8 Fenimore v. State ex rel. Com'rs of Land Office, 200 Okla. 400, 402, 194 P.2d 852, 854 (Okla. 1948). 9 Barrett v. Bd. of Com'rs of Tulsa County, 185 Okla. 111, 90 P.2d 442, 446 (Okla. 1939). 10 Okla. Const. art. 5, §46 provides in pertinent part: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: …. Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; … 11 Title 12 O.S. 2011 §19, see note 1, supra. 12 Title 12 O.S. 2011 §2001. 13 Title 12 O.S. 2011 §2002 provides: There shall be one form of action to be known as "civil action". 14 Title 12 O.S. 2011 §2008 provides in pertinent part: A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain: 1. A short and plain statement of the claim showing that the pleader is entitled to relief; and 2. A demand for judgment for the relief to which he deems himself entitled. Every pleading demanding relief for damages in money in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code shall, without demanding any specific amount of money, set forth only that the amount sought as damages is in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, except in actions sounding in contract. Every pleading demanding relief for damages in money in an amount that is required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code or less shall specify the amount of such damages sought to be recovered. Relief in the alternative or of several different types may be demanded. 15 Title 12 O.S. 2011 §2008, Committee Comment to Section 2008. 16 Zeier v. Zimmer was decided by this Court 8 to 1, with all members of the current Court who were on the Court when Zeier was decided concurring or concurring in result. Title 63 O.S. Supp. 2003 §1-1708.1E (repealed by Okla. Sess. Laws 2009, c. 228, §87) provided: A. 1. In any medical liability action, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that: a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert, b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the expert's determination that, based upon a review of the available medical records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the health care provider against whom the action is brought constituted professional negligence, and c. on the basis of the qualified expert's review and consideration, the plaintiff has concluded that the claim is meritorious and based on good cause. 2. If a medical liability action is filed: a. without an affidavit being attached to the petition, as required in paragraph 1 of the subsection, and b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling. 3. The written opinion from the qualified expert shall state the acts or omissions of the defendant(s) that the expert then believes constituted professional negligence and shall include reasons explaining why the acts or omissions constituted professional negligence. The written opinion from the qualified expert shall not be admissible at trial for any purpose nor shall any inquiry be permitted with regard to the written opinion for any purpose either in discovery or at trial. B. 1. The court may, upon application of the plaintiff for good cause shown, grant the plaintiff an extension of time, not exceeding ninety (90) days after the date the petition is filed, except for good cause shown, to file in the action an affidavit attesting that the plaintiff has obtained a written opinion from a qualified expert as described in paragraph 1 of subsection A of this section. 2. If on the expiration of an extension period described in paragraph 1 of this subsection, the plaintiff has failed to file in the action an affidavit as described above, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to its refiling. C. 1. Upon written request of any defendant in a medical liability action, the plaintiff shall, within ten (10) business days after receipt of such request, provide the defendant with: a. a copy of the written opinion of a qualified expert mentioned in an affidavit filed pursuant to subsection A or B of this section, and b. an authorization from the plaintiff in a form that complies with applicable state and federal laws, including the Health Insurance Portability and Accountability Act of 1996, for the release of any and all medical records related to the plaintiff for a period commencing five (5) years prior to the incident that is at issue in the medical liability action. 2. If the plaintiff fails to comply with paragraph 1 of this subsection, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to the refilling. 17 Title 12 O.S. 2011 §19 provides in pertinent part: A. 1. In any civil action for professional negligence, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit… 18Title 12 O.S. 2011 §19. 19 Oliver v. City of Tulsa, 1982 OK 121, ¶19, 654 P.2d 607; 654 P.2d 607; Traxler v. State, 98 Okla. Cr. 231, 251 P.2d 815. 20 McClure v. ConocoPhillips Co., 2006 OK 42, ¶13, 142 P.3d 390; Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, ¶14, 44 P.3d 569; Stone v. Hodges, 1967 OK 214, ¶6, 435 P.2d 165. 21 Perry Water, Light & Ice Co. v. City of Perry, 29 Okla. 593, 120 P. 582, 588 (Okla. 1911); Superior Mfg. Co. v. School Dist. No. 63, Kiowa County, 28 Okla. 293, 114 P. 328, 330 (Okla. 1910). 22 Title 63 O.S. 2011 §1-1708.1C.3. 23 Black's Law Dictionary (9th ed. 2009), professional. 24 Black's Law Dictionary (9th ed. 2009), profession. 25 Title 59 O.S. 15.1A(1) provides: 1. "Accountancy" means the profession or practice of accounting. 26 Title 59 O.S. 2011 §396.2(3) provides: 3. "Funeral establishment" means a place of business used in the care and preparation for burial, commercial embalming, or transportation of dead human remains, or any place where any person or persons shall hold forth and be engaged in the profession of undertaking or funeral directing. 27 Title 18 O.S. 2011 §803(6) provides: 6. "Professional service" means the personal service rendered by: a. a physician, surgeon or doctor of medicine pursuant to a license under Sections 481 through 524 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of medicine, b. an osteopathic physician or surgeon pursuant to a license under Sections 620 through 645 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of osteopathy, c. a chiropractic physician pursuant to a license under Sections 161.1 through 161.20 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of chiropractic, d. a podiatric physician pursuant to a license under Sections 135.1 through 160.2 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of podiatric medicine, e. an optometrist pursuant to a license under Sections 581 through 606 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of optometry, f. a veterinarian pursuant to a license under Sections 698.1 through 698.30b of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of veterinary medicine, g. an architect pursuant to a license under Sections 46.1 through 46.41 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of architecture, h. an attorney pursuant to his authority to practice law granted by the Supreme Court of the State of Oklahoma, i. a dentist pursuant to a license under Sections 328.1 through 328.53 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of dentistry, j. a certified public accountant or a public accountant pursuant to his or her authority to practice accounting underSections 15.1 through 15.38 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of public accountancy, k. a psychologist pursuant to a license under Sections 1351 through 1376 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of psychology, l. a physical therapist pursuant to a license under Sections 887.1 through 887.18 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of physical therapy, m. a registered nurse pursuant to a license under Sections 567.1 through 567.19 of Title 59 of the Oklahoma Statutes, and any other subsequent laws regulating the practice of nursing, n. a professional engineer pursuant to a license under Sections 475.1 through 475.22a of Title 59 of the Oklahoma Statutes, and any subsequent laws relating to the practice of engineering, o. a land surveyor pursuant to a license under Sections 475.1 through 475. 22a of Title 59 of the Oklahoma Statutes, and any subsequent laws relating to the practice of land surveying, p. an occupational therapist pursuant to Sections 888.1 through 888.15 of Title 59 of the Oklahoma Statutes and any subsequent law regulating the practice of occupational therapy, q. a speech pathologist or speech therapist pursuant to Sections 1601 through 1622 of Title 59 of the Oklahoma Statutes, and any subsequent law regulating the practice of speech pathology, r. an audiologist pursuant to Sections 1601 through 1622 of Title 59 of the Oklahoma Statutes, and any subsequent law regulating the practice of audiology, s. a registered pharmacist pursuant to Sections 353 through 366 of Title 59 of the Oklahoma Statutes, and any subsequent law regulating the practice of pharmacy, t. a licensed perfusionist pursuant to Sections 2051 through 2071 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of perfusionists, u. a licensed professional counselor pursuant to Sections 1901 through 1920 of Title 59 of the Oklahoma Statutes, and any subsequent law regulating the practice of professional counseling, v. a licensed marital and family therapist pursuant to Sections 1925.1 through 1925.18 of Title 59 of the Oklahoma Statutes, and any subsequent law regulating the practice of marital and family therapy, w. a dietitian licensed pursuant to Sections 1721 through 1739 of Title 59 of the Oklahoma Statutes and any subsequent laws regulating the practice of dietitians, x. a social worker licensed pursuant to Sections 1250 through 1273 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of social work, y. a licensed alcohol and drug counselor pursuant to Sections 1870 through 1885 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of alcohol and drug counseling, or z. a licensed behavioral practitioner pursuant to Sections 1930 through 1949.1 of Title 59 of the Oklahoma Statutes, and any subsequent laws regulating the practice of behavioral health services… 28 Reynolds, see note 5, supra at ¶21; Maule v. Indep. School Dist. No. 9, 1985 OK 110, ¶12, 714 P.2d 199; City of Tulsa v. McIntosh, 1930 OK 71, ¶11-12, 284 P. 875; Union School Dist. No. 1 v. Foster Lumber Co., 1930 OK 50, ¶7, 286 P. 774; Bradford v. Cole, 1923 OK 571, ¶4, 217 P. 470. 29 City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶9,133 P.3d 281 (citing Reynolds, see note 5, supra at ¶18. 30 Reynolds, see note 5, supra at ¶¶18-21. 31 Title 12 O.S. 2011 §19, see note 1, supra. 32 Barzellone v. Presley, 2005 OK 86, ¶24, 126 P.3d 588. 33 Barzellone v. Presley, see note 32, supra at ¶39. 34 Zeier v. Zimmer, Inc., 2006 OK 98, ¶32, 152 P.3d 861. The affidavit of merit provision in Zeier, was found at 63 O.S. Supp. 2003 §1-1708.1E (repealed by Okla. Sess. Laws 2009, c. 228, §87) , see note 16, supra. 35 Zeier v. Zimmer, Inc., see note 34, supra at ¶28. 36 Barzellone v. Presley, see note 32, supra at ¶39. 37 Zeier v. Zimmer, Inc., see note 34, supra at ¶32. In Zeier we also outlined several of the ills that are a direct result of a statutorily-mandated affidavit of merit provision of the kind at issue here. We held: Although statutory schemes similar to Oklahoma's Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery. Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs' claims based solely on procedural, rather than substantive, grounds. (Internal citations omitted.) 38 Title 12 O.S. 2011 §19(D) provides: D. A plaintiff in a civil action for professional negligence may claim an exemption to the provisions of this section based on indigency pursuant to the qualification rules established as set forth in Section 4 of this act. The statute found unconstitutional in Zeier contained no such exemption provision. 39 Title 12 O.S. 2011 §192 provides: A. When a plaintiff requests an indigency exemption from providing an affidavit of merit in a civil action for professional negligence pursuant to Section 2 of this act, such person shall submit an appropriate application to the court clerk, on a form created by the Administrative Director of the Courts, which shall state that the application is signed under oath and under the penalty of perjury and that a false statement may be prosecuted as such. A nonrefundable application fee of Forty Dollars ($40.00) shall be paid to the court clerk at the time the application is submitted, and no application shall be accepted without payment of the fee; except that the court may, based upon the financial information submitted, defer all or part of the fee if the court determines that the person does not have the financial resources to pay the fee at time of application. Any fees collected pursuant to this subsection shall be retained by the court clerk, deposited in the Court Clerk's Revolving Fund, and reported quarterly to the Administrative Office of the Courts. B. 1. The Supreme Court shall promulgate rules governing the determination of indigency pursuant to the provisions of Section 22 of this act. The initial determination of indigency shall be made by the Chief Judge of the Judicial District or a designee thereof, based on the plaintiff's application and the rules provided herein. 2. Upon promulgation of the rules required by law, the determination of indigency shall be subject to review by the Presiding Judge of the Judicial Administrative District. (Internal citations omitted). 40 Title 12 O.S. 2011 §192(A), see note 39, supra. 41 Zeier v. Zimmer, Inc., see note 34, supra at ¶26; Woody v. State ex. rel. Dept. of Corrections, 1992 OK 45, ¶10, 833 P.2d 257. 42 Zeier v. Zimmer, Inc., see note 34, supra at ¶26. 43 Barzellone v. Presley, see note 32, supra at ¶39; Mehdipour v. State ex rel. Dep't of Corrections, 2004 OK 19, ¶20, 90 P.3d 546. 44 See In Re Lee, 1917 OK 458, 168 P. 53. 45 In Re Lee, see note 44, supra at 9 (quoting The Magna Carta, Ch. 39, 1215). 46 We are not alone in finding the requirement of an affidavit of merit unconstitutional. In Putman v. Wenatchee Valley Medical Center, P.S., 216 P.3d 374, 376-77 (Wash. 2009), the Washington Supreme Court found that Washington's certificate of merit requirement unduly burdened the rights of the State's citizens to access the courts, and was therefore unconstitutional. In Putman, the court noted that the right to access the courts included the right of discovery authorized by the civil rules, a right interfered with by requiring a certificate of merit prior to discovery. However, other states such as Georgia have found affidavit of merit requirements constitutional. In Walker v. Cromartie, 696 S.E.2d 654 (Ga. 2010), the Supreme Court of Georgia upheld an affidavit of merit requirement that applied generally to actions for professional negligence, not just those involving medical professionals. The court found that the requirement was not a special law merely because indigent defendants may not be able to afford the fees associated with obtaining an expert affidavit, holding that it applied uniformly to any person or entity bringing a lawsuit for professional negligence. However, the court did not address whether the requirement was a special law because it created subclasses of tort claims and victims. Further, Georgia's constitutional prohibition on special laws is not as extensive as Oklahoma's. Its uniformity clause provides: Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws. Ga. Const. of 1983, Art. III, Sec. VI, Par. IV(a). WINCHESTER, J., dissenting: ¶1 I respectfully dissent. I cannot agree that 12 O.S.2011, § 19 is unconstitutional as a special law. The majority opinion asserts that this statute "creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors." Oklahoma's case law already recognizes such a "subclass" of tort law, and that is "malpractice." The rule where medical malpractice against a physician is alleged, whether it is for failure to properly diagnose or treat a patient, is that the physician's negligence must ordinarily be established by expert testimony. Smith v. Hines, 2011 OK 51, ¶ 14, 261 P.3d 1129, 1133; Harder v. F.C. Clinton, Inc., 1997 OK 137, ¶ 14, n. 30, 948 P.2d 298, 305, n. 30; Benson v. Tkach, 2001 OK CIV APP 100, ¶ 10, 30 P.3d 402, 404. The statute merely requires an affidavit at the time of filing. Is it reasonable to require expert testimony in a malpractice case, but forbid the legislature from requiring that an expert submit an affidavit at the front end of a lawsuit? I do not believe it is. ¶2 The difference between a standard negligence case and professional malpractice is recognized even in the business law books studied by undergraduates and MBA students. "If an individual has knowledge or skill superior to that of an ordinary person, the individual's conduct must be consistent with that status. Professionals--including physicians, dentists, architects, engineers, accountants, and lawyers, among others--are required to have a standard minimum level of special knowledge and ability. Therefore, in determining what constitutes reasonable care in the case of professionals, the law takes their training and expertise into account. Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard." Kenneth W. Clarkson, Roger LeRoy Miller & Frank B. Cross, Business Law Text and Cases 139 (12th ed. 2012). ¶3 Georgia's statute requiring an affidavit is not identical to Oklahoma's statute. However, the reasoning of the Supreme Court of Georgia is pertinent to the construction of Oklahoma's statute. Georgia's statute also requires an affidavit from an expert to be filed with the complaint for professional negligence. Its supreme court recognized that the statute itself did not impose a cost or fee for filing an expert affidavit. Neither does § 19. In addressing a due process argument, Georgia's court observed: "The 'costs' appellants object to are created by private actors, not any state actor. Since no state actor has exacted the harm of which appellants complain, the statute does not violate the right to due process." Walker v. Cromartie, 287 Ga. 511, 512, 696 S.E.2d 654, 656 (2010). If this Court reasons that the legislature's requirement of an expert affidavit is financially burdensome, is it somehow less burdensome to require an expert to testify to the negligence of the defendant during the trial stage? Case law requires such expert testimony. Surely it is clear that the cost of an expert affidavit is less than the cost of actual expert testimony, both of which are presently required, one by the legislature and the other by this Court. ¶4 The majority protests that court costs have reached the tipping point and can go no higher. The legislature has provided, through the statute, for a simple exemption that may be signed by plaintiffs to express to the court their inability to pay for the § 19 affidavit. The Supreme Court is very liberal and experienced in allowing indigent petitions. I see no reason for this Court to fail to recognize an indigent affidavit for professional negligence cases. ¶5 Accordingly, I dissent. TAYLOR, J., dissenting: ¶1 Even though I concurred in result in Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, I must respectfully dissent from today's pronouncement. There are two major differences in the statute which this Court found unconstitutional in Zeier and in title 12, section 19 of the 2011 Oklahoma Statutes which is before us today. First, section 19 is not limited to medical negligence as was the provision in Zeier but includes all professional negligence. 12 O.S.2011, § 19(A)(1). Second, it provides for an indigency exemption to the certificate of merit requirement. Id. § 19(D). ¶2 In Zeier, this Court struck down section 1-1708.1E of the Affordable Access to Health Care Act, 63 O.S.Supp. 2003, § 1-1708.1E, which required a certificate of merit only in medical malpractice actions. The Legislature responded to Zeier by enacting title 12, section 19 of the Oklahoma Statutes, which expanded the certificate of merit requirement to all professional negligence. Now section 19 is under attack in this appeal as a special law in violation of article 5, section 46 of the Oklahoma Constitution. ¶3 In construing section 19, this Court is guided by the overarching principle that every statute is presumed constitutional and will be upheld until its constitutional invalidity is clearly shown. Wilson v. Fallin, 2011 OK 76, ¶ 21, 262 P.3d 741, 748. Further, this Court is to presume that the Legislature has not done a vain and useless act. Surety Bail Bondsmen of Okla., Inc. v. Insurance Comm'r, 2010 OK 73, ¶ 26, 243 P.3d 1177, 1185. Following these principles leads to the conclusion that the Legislature did not intend the term "professional negligence" to have the identical meaning as "medical liability." Rather, consistent with these principles, section 19 must be construed as expanding the class to which the certificate of merit requirement applies to include all negligence actions against any professional. Further, this Court itself has taken a more expansive approach by using the term "professional negligence" in reference to actions against lawyers, Leak-Gilbert v. Fahle, 2002 OK 66, 55 P.3d 1054; realtors, Rice v. Patterson, 1993 OK 103, 857 P.2d 71; and engineers, Samuel Robert Noble Foundation, Inc. v. Vick, 1992 OK 140, 840 P.2d 619. ¶4 It would certainly have been a vain and useless act for the Legislature to enact a statutory provision that this Court had determined to be unconstitutional only three years earlier. By expanding the class of torts requiring a certificate of merit to professional negligence, the Legislature remedies the concerns this Court expressed in Zeier regarding section 1-1708.1E of the Affordable Access to Health Care Act. I would find that title 12, section 19 of the Oklahoma Statutes does not offend article 5, section 46 of the Oklahoma Constitution. ¶5 I would likewise find that section 19 does not offend article 2, section 6 of the Oklahoma Constitution. The impediment that this Court found to the cost of procuring an expert's opinion before trial, the Legislature addressed in title 12, section 19(D) by providing for an indigency exemption and leaving the Judicial Branch with authority to define indigency. See 20 O.S.2011, § 56. Title 12, section 192 imposes a nonrefundable application fee of $40.00 on a plaintiff seeking an indigency exemption but this fee can be deferred. If the $40 fee is a constitutional impediment, then striking only the $40.00 fee for the indigency exemption as violative of article 2, section 6, rather than striking down the certificate of merit requirement, gives the appropriate measure of deference to the Legislature. There are other procedures in place to address any impediment of access to the courts: this Court could define indigency in such a manner as to alleviate any monetary obstruction that the certificate of merit requirement creates. ¶6 In deference to the Legislature and the rules of statutory construction, I would construe title 12, section 19 in a way to find that it does not violate article 5, section 46 of the Oklahoma Constitution. I would also exercise this Court's power in as narrow a swath as possible rather than the most extensive.

8d08d8e0-57cb-4de1-98a5-c39aefca5ab6

Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma v. Lucas

oklahoma

Oklahoma Supreme Court

STATE ex rel. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA v. LUCAS2013 OK 14Case Number: 110283Decided: 03/05/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STATE OF OKLAHOMA, ex rel., BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, ex rel., CAMPUS DISCIPLINARY COUNCIL OF THE UNIVERSITY OF OKLAHOMA, Petitioner,v.THE HONORABLE TOM A. LUCAS, DISTRICT JUDGE OF THE DISTRICT COURT OF CLEVELAND COUNTY, Respondent,andFRANK GEORGE, Real Party In Interest. APPLICATION TO ASSUME ORIGINAL JURISDICTIONAND PETITION FOR EXTRAORDINARY RELIEF ¶0 A student at the University of Oklahoma filed a petition in the District Court of Cleveland County to obtain judicial review of a decision made by the University of Oklahoma Campus Disciplinary Council. The University filed a motion to dismiss the petition and argued that the Oklahoma Administrative Procedures Act did not authorize appellate jurisdiction in the District Court. The Honorable Tom A. Lucas, District Judge, District Court of Cleveland County, denied the motion to dismiss, stayed proceedings, and certified the court's order for interlocutory certiorari review on the issue of the appellate jurisdiction of a District Court exercised pursuant to the Oklahoma Administrative Procedures Act. The Court granted the petition for interlocutory certiorari. We recast the petition to review a certified interlocutory order to an application to assume original jurisdiction and petition for a writ of prohibition. We hold that: (1) 75 O.S. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student is subject to discipline less than expulsion for an institutional rule infraction; (2) the remedy of an independent District Court civil action is an adequate remedy for an alleged violation by the University of a student's rights to due process in a University disciplinary proceeding; (3) the possibility of a subsequent institutional offense that is subject to Article II of the Administrative Procedures Act having an enhanced punishment because of former offenses does not require the former offenses to be also subject to Article II of the Administrative Procedures Act; and (4) absent unusual circumstances not present here, we decline in a supervisory writ proceeding to adjudicate constitutional arguments that were not adjudicated in the District Court. PETITION TO REVIEW A CERTIFIED INTERLOCUTORY ORDER RECAST TOAPPLICATION TO ASSUME ORIGINAL JURISDICTION; ORIGINAL JURISDICTION ASSUMED; AND PETITION FOR WRIT OF PROHIBITION GRANTED Samuel L. Talley, Douglas S. Crowder, Talley, Crowder & Talley, Norman, Oklahoma, for Plaintiff/Respondent.Shawnae E. Robey, Julia H. Messitte. Office of Legal Counsel, University of Oklahoma, Norman, Oklahoma, for Defendant/Petitioner. EDMONDSON, J. ¶1 This proceeding was commenced in the District Court as an administrative appeal from student disciplinary proceedings at the University of Oklahoma. We conclude that the District Court lacked administrative appellate jurisdiction and direct the District Court to dismiss the administrative appeal. We do not resolve the claims by the student that the University failed to use the constitutionally proper procedures for imposing discipline on him. These claims were not adjudicated by the District Court, and we conclude that students have available District Court remedies for constitutionally improper student discipline when the Oklahoma Administrative Procedures Act does not provide them with an administrative appeal. Because the controversy is improperly before us on a discretionary petition for certiorari, we recast that petition to an application to assume original jurisdiction and a discretionary petition for a writ of prohibition, and we direct the Clerk of this Court to correct the style of the proceeding on the docket of this Court.1 ¶2 Frank George, a student at the University of Oklahoma (University), was charged by the University with violating five provisions of the University's student code. The Campus Disciplinary Board (CDB) found that he was guilty of violating three provisions of the Code: 16.4 (Failing to Comply with Directions of Institutional Officials), 16.65 (Public Drunkenness), and 16.25 (Violating Applicable Local, State, or Federal Laws). He appealed to the University's Campus Disciplinary Council (CDC) and alleged that the evidence was insufficient for the administrative decisions that the student code had been violated. The CDC "invited Mr. George to provide a written submission regarding the insufficiency of the evidence, and invited the University to respond." Petition for Review, Plaintiff's Exhibit 2, pp. 1, 10. The CDC reviewed the statements of the witnesses and the student, and in its written decision concluded that the student had failed to meet his burden to show that the evidence against him was insufficient. The decision of the CDB was sustained by the CDC. ¶3 George filed a petition for review in the District Court of Cleveland County seeking administrative appellate review of a final agency decision. The University filed a motion to dismiss with two attached exhibits and raised insufficiency of service of process and lack of jurisdiction pursuant 75 O.S. 2011 § 250.4 (B)(12), a provision of the Oklahoma Administrative Procedures Act. ¶4 George responded to the motion to dismiss. He argued that: (1) Prior to the CDB hearing the written notice of the University stating George's code violations did not explain to him with sufficient specificity why he was charged with the code violations; (2) The notice did not give notice to him that he was being prosecuted for possession of a false identification card or possessing alcohol under the legal age for possession; (3) He was not given notice of rights to review and appeal; (4) The only testimony against him at the CDB hearing was from a University of Oklahoma Police Officer; (5) Written statements of officers not present at the hearing were considered by the CDB; (6) George informed the University that he expected all witnesses to be used against him to be present at his hearing; and (7) University counsel advised the CDB and another lawyer employed by University prosecuted George. George appealed the adverse decision of the CDB to the CDC, and then the adverse decision of the CDC to the District Court. George then argued that his allegations of violations of due process demonstrated that the District Court had appellate jurisdiction of the decision made by the University's Campus Disciplinary Council. ¶5 The University filed a reply with three additional attached exhibits and argued that the appellate jurisdiction of the District Court was not based upon whether George had alleged due process violations, but whether the Administrative Procedures Act provided for appellate jurisdiction. The District Court denied the motion to dismiss. The University sought review in this Court by a petition for certiorari and the request for review was granted. I. Petition for Certiorari to Review of Certified Interlocutory Order Recast to Petition to Assume Original Jurisdiction and Issue Prohibition ¶6 The order in the District Court before us on review is titled "Final Judgment." However, it is an interlocutory order anterior to judgment and the order is neither final nor a judgment.2 The trial judge certified his nonfinal ruling for discretionary appellate review under the provisions of 12 O.S.2011 § 952(b)(3) and Supreme Court Rule 1.50.3 The provisions of § 952(b)(3) "plainly require that the interlocutory order certified for our review affect a substantial part of the merits of the controversy." City of Lawton v. Intern. Union of Police, 2002 OK 1, n. 27, 41 P.3d 371, 376 (emphasis added). The requirement that the order affect a substantial part of the merits of the controversy is a statutory limitation on our certiorari power to review pursuant to § 952(b)(3). In Ward Petroleum Corp. v. Stewart, 2003 OK 11, 64 P.3d 1113, we stated that "Our power to review certified orders is limited to those involving issues which affect a substantial part of the merits of a controversy." Id. at ¶ 1, 64 P.3d at 1114. ¶7 The claim made by the University was that the District Court was without subject matter appellate jurisdiction. This Court has examined jurisdictional claims within certiorari review of a certified interlocutory order without commenting on whether the jurisdictional claims involved the merits of the controversies.4 However, a claim based upon a lack of jurisdiction is usually considered to be a claim not affecting the merits of the controversy.5 If we consider George's claims as solely jurisdictional, then the issue to be reviewed is not on the merits of the controversy and certiorari review is improper. ¶8 Our opinions have indicated that it is possible for a jurisdictional issue to be intertwined with an issue on the merits of a controversy,6 and for a challenge to subject matter jurisdiction to include a challenge on the merits of a controversy.7 Federal courts have explained that a jurisdictional issue is intertwined with the merits when the subject matter jurisdiction is dependent upon a issue that is also an element to the merits of the cause of action, and the adjudication of the jurisdictional issue necessarily adjudicates a cause of action or defense thereto.8 A similar circumstance occurred in Flick v. Crouch, 1967 OK 131, 434 P.2d 256, where we explained that an adjudication by a District Court of a party's status as an employee would determine whether a District Court or the State Industrial Court had jurisdiction, and a defendant's plea raising that status "goes to the merits." Id. 434 P.2d at 261. ¶9 The method of review herein is by certiorari to review a certified interlocutory order. In federal courts, when a motion to dismiss for lack of jurisdiction is intertwined with the merits of the controversy the court is required to convert the motion to dismiss into either (1) a motion to dismiss for failure to state a claim upon which relief may be granted [Federal Rule 12(b)(6) motion], or (2) a motion for summary judgment [Federal Rule 56 motion].9 The University attached a total of five exhibits to its motion to dismiss and subsequent reply filed in the District Court. One of the exhibits was an "Acknowledgment of Rights" allegedly provided to George by the University, and it was cited by the University for the purpose of showing that George was notified of his right to appeal, and was arguably provided with an element of due process. George's claim in the District Court was based upon allegations of denial of due process, and the University's exhibit addressed that claim. The University's jurisdictional argument was intertwined with an argument on the merits of George's claims that due process required administrative appellate jurisdiction of the District Court. ¶10 When the University's motion raising a jurisdictional issue is construed to be intertwined on the merits of George's claims, then the University's motion to dismiss (with reply) should be deemed to be a motion for summary judgment.10 The University's motion for summary judgment was denied. A trial court's order that denies a motion for summary judgment is not subject to certiorari review pursuant to § 952(b)(3) because "No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment." Okla.Sup.Ct.R. 1.50. Although the parties and the trial court did not treat University's motion as one for summary judgment presenting both jurisdictional and merits-based claims arguments, we treat the order as one denying summary judgment. ¶11 In summary, if the University's claim is jurisdictional then the order adjudicating that claim is not on the merits, and the order is thus not a certified interlocutory order that qualifies for a § 952(b)(3) review. On the other hand, when the University's jurisdictional claim involves the merits of the controversy and it was denied by the trial court, then such denial does not create a certified interlocutory order subject to § 952(b)(3) review. Statutory certiorari review is thus improper in this case. ¶12 The University makes a claim challenging the District Court's jurisdiction. The remedies provided by this Court's constitutional supervisory writs may be used to challenge the exercise of jurisdiction by a District Court. The constitutional supervisory writ of prohibition is often used for a jurisdictional challenge.11 In Ward Petroleum Corp. v. Stewart, supra, we explained that "Because the issue as certified cannot be considered to be 'on the merits of the controversy', we hereby recast the petition for certiorari into a proceeding for a writ of prohibition." Ward, 2003 OK 11, at ¶ 1, 64 P.3d at 1114. We similarly recast George's petition for certiorari to an application to assume original jurisdiction and petition to issue prohibition. We assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4 to address an issue of first impression, the question of how a public University's disciplinary proceedings relate to Oklahoma's Administrative Procedures Act and the nature of judicial review available for a student challenging his or her disciplinary proceeding. ¶13 We treat the University's motion for summary judgment as raising both jurisdictional and non-jurisdictional claims. We grant prohibition to prevent enforcement of the District Court's order that denied the University's motion for summary judgment on the jurisdictional issue that the trial court lacked Administrative Procedures Act appellate jurisdiction. We make no adjudication on other claims intertwined with this jurisdictional issue, including any claim on the merits or defense raised by the parties. Our opinion herein addresses the parties' issues necessary to adjudicate whether the District Court possesses appellate jurisdiction. Pursuant to issuance of the writ, we further direct the District Court to dismiss George's Administrative Procedures Act appeal in that court, but we make no adjudication on the jurisdiction of the District Court relating to George or the University which may arise from any source other than Oklahoma's Administrative Procedures Act. II. Administrative Appellate Jurisdiction of the District Courtand the Remedy of an Independent Civil Action ¶14 The Administrative Procedures Act is composed of two Articles. Article I of the Act relates to state agency filing and publication requirements for rules, and Article II relates to agency notice and hearing requirements for individual proceedings.12 Any party aggrieved by a final agency order in an Article II individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to 75 O.S.2011 §§ 318, 319, 320, 321, 322 and 323.13 George's petition in the District Court alleged that he sought review of a final agency order pursuant to 75 O.S. § 318(B)(2). ¶15 University argued that George's discipline was not subject to Article II, his hearing was not a § 310 hearing,14 the ultimate decision was not a § 312 final agency order,15 and no judicial review pursuant to the Administrative Procedures Act was available to George. In the present proceeding, both parties rely upon the same statute, 75 O.S. 2011 § 250.4 (B)(12), for their respective claims concerning the nature of the University's proceedings involving George and the jurisdiction of the District Court: B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: . . . 12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, and the following grounds of misconduct, if properly alleged in disciplinary proceedings against a student, shall be cause to be barred from the campus and be removed from any college or university-owned housing, upon conviction in a court of law: a. participation in a riot as defined by the penal code,b. possession or sale of any drugs or narcotics prohibited by the penal code, Section 1 et seq. of Title 21 of the Oklahoma Statutes, orc. willful destruction of or willful damage to state property; 75 O.S. 2011 § 250.4 (B)(12). We first examine the plain language of the statute. If wording in a statute is plain, clear and unambiguous then the plain meaning of the words used must be judicially accepted as expressing the intent of the Legislature, and there exists no reason or justification to use interpretive devices or rules of construction to determine meaning. Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, n.6, 270 P.3d 113, 119. ¶16 Paragraph 12 begins with stating that The Board of Regents or employees of any university, college, or other institution of higher learning need not comply with the provisions of Article II of the Administrative Procedures Act. This language is then limited by the exception for an expulsion of any student for disciplinary reasons. The plain language of § 250.4(B)(12) states that Article II applies when the penalty of expulsion exists for charges brought against a student in a university disciplinary proceeding. ¶17 University argued that George was subject to censure (or reprimand), parental notification, a $150.00 administrative fee, community service, a period of probation, and a "second strike" on the University's "alcohol policy," and that these were "all off the record at graduation." University argued that the charges against George did not have an expulsion as a penalty. ¶18 George's brief challenged the University's statement that he was not subject to expulsion. He stated that a "third strike" on the University's Alcohol Policy results in a suspension which is an expulsion. He also argued, "If a semester suspension is tantamount to an expulsion within the law of this state, which it is, then of course this is an expulsion system and expulsion case where Article II applies." Respondent's Answer Brief, p.5. ¶19 Historically, the terms "suspended" and "expelled" have referred to a person's status with respect to an organization where "suspended" and "expelled" have had different meanings. One difference between a suspension and an expulsion is that the former involves a temporary privation of rights and privileges where the one suspended maintains the status of a student (or continues as a member of an organization from which the person is suspended), and the latter involves a permanent privation of rights and privileges where the one expelled no longer has the status of a student (or no longer has membership in an organization from which the person is expelled).16 ¶20 The University's Student Code makes a distinction between (1) a suspension, which is student's exclusion from classes and activities "for a definite period of time not to exceed two years or until the conditions which may be set forth [in the order of suspension] are met," and (2) an expulsion, which is termination of student status for an indefinite time, and the order of expulsion may, or may not, include conditions for readmission. University's Mtn. To Dismiss, Ex. 2, O.R. at p. 29.17 The language in the Student Code describing a suspension has a meaning that the student will be reinstated to full student privileges upon the happening of event, either expiration of time or fulfillment of conditions by the student. On the other hand, the language describing an expulsion has a meaning that the student has no expectation that student privileges will be restored, unless his or her particular order of expulsion expressly states conditions for reinstatement. The definitions provided for suspension and expulsion that are used in the Student Code are consistent with the historic distinction between a suspension and an expulsion. George's argument that conflates suspension and expulsion into one meaning is without merit. ¶21 George received discipline. He received a censure for failure to comply with the directions of an institution official. For public intoxication his deferred First Strike was revoked.18 This meant that his new public intoxication offense was considered to be a Second Strike against the Alcohol Policy. He received the minimum penalties for a Second Strike against the Alcohol Policy. Those minimum penalties were listed in the Student Code as follows. 1. Parent/Guardian notification via return receipt certified mail with a follow-up telephone call.2. A $150.00 administrative fee.3. Satisfactorily complete an approved alcohol counseling program.4. Satisfactorily complete 20 hours of approved community service.5. Disciplinary Probation. The Notation of Disciplinary probation shall be removed upon graduation from the University of Oklahoma subject to completion of disciplinary sanction. University's Mtn. To Dismiss, Ex. 2, University of Oklahoma Student Code, 2010 - 2011, Title 17 Sanctions, 17.4, Individual Sanctions, 2nd Offense. O.R. at p. 30. George was also found guilty under the Student Code because he had violated a local, state, or federal law, leading to his plea of "no contest" to a charge of public intoxication that was made in the City of Norman municipal court. For this violation the Campus Disciplinary Board stated that the minimum sanctions for a Second Strike against the Alcohol Policy that George received were an adequate discipline. ¶22 George's probation did not expressly include a suspension from academic activities.19 The minimum mandatory sanction imposed on George did not include a suspension. University of Oklahoma Student Code, 2010 - 2011, Title 17 Sanctions, 17.4. However, the University did prevent George from enrolling for the semester which followed the final decision on George's discipline. The day after he was prevented from enrolling, the District Court heard argument from George's counsel on a motion to stay enforcement of the University's sanctions. University's counsel argued that the prevention from enrollment "is standard practice" because "[i]f there are outstanding fees or unresolved business the University won't allow you to enroll." Trans. of Proceedings, Jan. 4, 2012, at p. 25. Counsel did not explain whether the bar of enrollment was due to George (1) failing to pay the administrative fee prior to enrollment, or (2) failing to pay some other type of fee, or (3) failing to complete [or enroll in ] an approved alcohol counseling program, or (4) failing to complete [or enroll in] approved community service prior to enrollment, or (5) failing to perform a combination of one or more of the previous four reasons, or (6) George's noncompliance with some other requirement of the University. Counsel did not explain the exact nature of "unresolved business" that warranted barring a student from enrollment. ¶23 The record supplied to us contains no information on circumstances that bar a student from enrollment or how such circumstances apply in this case. This Court does not base its decision upon either unsupported statements in a brief filed in this Court or unsupported statements made in argument of counsel to the trial court.20 Further, although George's application for a stay relied upon 75 O.S. § 319 (1) & (2), no discussion occurred at the hearing on topics such as (1) the terms or conditions of a stay, if any, that would be proper for staying the University's sanctions as such related to enrollment or (2) the lack of verified statements of material fact in support of George's request for a stay as such related to enrollment.21 This may be due to the fact that while the University initially resisted the request for a stay in its motion to dismiss, at the hearing it stated that "we would not object to staying the impositions of . . ." the discipline to be imposed on George. Trans. Jan. 4, 2011, at p. 25. George's petition was verified and included attached exhibits, and the University attached exhibits to its motion to dismiss (for summary judgment) and reply. But no exhibits related to George's enrollment. Thus, there is no record before us that the University's non-suspension sanctions that were imposed on George were nevertheless imposed by the University in such a way as to necessarily cause an individual's expulsion. Clearly, from the record before us, George has not been expressly expelled from the University. ¶24 George also maintained that the express language of § 250.4 required the proceeding to be subject to Article II of the Administrative Procedures Act because § 250.4 requires "due process." We again look to the language of the statute. B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: . . . 12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, . . . . 75 O.S.2011 § 250.4 (B)(12), in part, emphasis added. George argued that if his penalty was considered to be less than expulsion then the disciplinary proceeding was required to comply with due process, and that such compliance required both the application of Article II to the University proceedings and the availability of a judicial remedy by appeal to a District Court. ¶25 University agreed that disciplinary proceedings less than expulsion must comply with due process. However, University argued that due process did not require application of Article II to the disciplinary hearings. University also argued that alleged due process violations in non-expulsion student disciplinary proceedings were subject to review by a civil action in a District Court but not by an Administrative Procedures Act appeal: "To the extent George believes he can articulate a cognizable claim for procedural and/or substantive due process violations, Oklahoma's civil procedure code, 12 Okla. Stat. §§ 1, et seq., would dictate that he 'fil[e] a petition with the court' in order to commence a civil action." Petnr's Reply Brief at p. 3. ¶26 We first note that the statute does not state that upon any alleged infraction by a student of rules of an institution, with a lesser penalty than expulsion, such student shall be entitled to the procedures provided by Article II. The statute states that the student shall be given "due process, including notice and hearing, as may be otherwise required by law." 75 O.S. § 250.4 (B)(12), emphasis added. The phrase "including notice and hearing" refers to the phrase "due process," and the phrase "as may be otherwise required by law" refers to law other than Article II of the Administrative Procedures Act that requires procedures such as notice and hearing.22 The language "as may be otherwise required by law" recognizes that procedures may arise from not only various statutory codes of procedure, but from the Due Process Clause itself.23 ¶27 Section § 250.4 identifies two classes of students: first, students subject to discipline of expulsion where Article II applies; and second, students subject to discipline less than expulsion where Article II does not apply. The University argued that although Article II did not apply to students subject to discipline less than expulsion, § 250.4(B)(12) recognized that they were entitled to whatever due process was required in such cases. George argued that the language recognizing an entitlement to due process was the Legislature requiring Article II to be applied to all student disciplinary proceedings, both expulsion and non-expulsion proceedings. George's argument destroys the statutory distinction made between student discipline with expulsion and student discipline with non-expulsion. The plain words of a statute are deemed to express legislative authorial intent in the absence of any ambiguity in language. Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, ¶ 11, 270 P.3d 113, 118. Section 250.4(B)(12) is clear and a plain reading of § 250.4(B)(12) is contrary to George's argument.24 ¶28 George argued that judicial review in the form of an appeal is constitutionally required to preserve a person's rights protected by the Due Process Clauses of the State and Federal Constitutions.25 He argued that construing § 250.4 in a manner which denied application of Article II (with an administrative appeal) to George and leaving him with the remedy of a civil action violated the Due Process Clauses. Assuming for the purpose of our analysis that the Due Process Clauses apply to rights possessed by George that were affected by his disciplinary proceeding, we make the following observations. George's argument raised at least two distinct issues. The first is whether the exclusion in Article II of University disciplinary proceedings is constitutionally permissible in disciplinary proceedings where expulsion is not a penalty; second, whether a civil action is a constitutionally deficient form of judicial review of an action taken by an administrative agency, and whether judicial review by an administrative appeal is constitutionally necessary. ¶29 Generally, the Due Process Clause does not by itself mandate any particular form of procedure. Powers v. District Court of Tulsa County, 2009 OK 91, n. 42, 227 P.3d 1060, 1074. We explained in Wood v. Independent Sch. Dist. No. 141 of Pottawatomie County, 1983 OK 30, 661 P.2d 892, 896, and more recently in Daffin v. State ex rel. Dept. of Mines, 2011 OK 22, ¶ 21, 251 P.3d 741, 748, that the United States Supreme Court, in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), established a balancing test to determine the constitutional sufficiency of the administrative procedures involved. The U. S. Supreme Court explained: More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See e.g., Goldberg v. Kelly, supra, 397 U.S. [254] at 263-271, 90 S.Ct. [1011] at 1018-1022 [25 L. Ed. 2d 287 (1970) ]. Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S. Ct. 893, 903. This balancing test requires consideration of the interests of George affected by the actions of the University, the risk of erroneous deprivation through the procedures used, the probable value of additional or substitute procedures, and the University's interests. George argued that application of Article II is the essential element or condition to satisfy due process. This argument that Article II is the constitutional sine qua non of due process is simply incorrect. George does not present any argument based upon a Matthews balancing analysis that District Court appellate review is constitutionally required. ¶30 George claimed that the University hearing procedure was constitutionally flawed and Article II procedures must therefore apply to correct the flaws in the procedure of the disciplinary hearing at the University. When due process is invoked, it usually is invoked to require a particular procedure and not a collection of procedures unless each and every procedure in the collection is individually required to satisfy due process. One reason for this is that the necessity for one procedure to satisfy due process does not logically show that all procedures are necessary to satisfy due process.26 The Due Process Clause cases show this principle when they explain that a Due Process analysis is a particularized inquiry of facts and circumstances.27 ¶31 George argued that Article II procedures must apply to correct the flaws in the procedure of the disciplinary hearing at the University. He argued that 75 O.S. § 250.4 may not be construed in a manner that denies application of Article II, because such a construction necessarily violates Due Process. George claimed that Article II of the Administrative Procedures Act must apply to him as a member of a class where membership in the class is defined according to status as a student at a public university. George cited several opinions relating to procedural due process being required in various circumstances; but his Due Process contention that Article II must apply to him suggests an equal protection claim for uniform application of law based upon the Oklahoma Due Process Clause.28 This Court has recognized the power of the Legislature to classify people for disparate substantive-law treatment, and "A classification is not to be measured by whether it discriminates, but rather by whether it discriminates impermissibly or invidiously." Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1117 (emphasis in original). George has not made any argument with authority on the issue of impermissible or invidious discrimination. ¶32 The language of 75 O.S.2011 § 250.4 (B) lists several agencies that are not required to comply with Article II.29 We recently said that: "Judicial review of agency/board orders is commenced in two ways: 1) pursuant to the Administrative Procedures Act (Act) which provides for review of final agency orders; or 2) circumvention of the statutory procedures only when there is a constitutional question, inadequate administrative relief, and threatened or impending irreparable injury." Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, ¶ 12, 270 P.3d 133, 136-137 (notes omitted). This analysis is a usual expression for describing how judicial review of an administrative act is commenced; it recognizes that statutory procedures for review may be inadequate, and that judicial relief from an administrative act is not always based upon a plaintiff's fulfillment of an administrative procedure. ¶33 As a general rule and subject to some exceptions, decisions of administrative bodies, especially on questions of law, are subject to some form of judicial review.30 In some circumstances, an administrative act is not subject to review by right, but the challenged administrative action receives other types of judicial review depending upon the nature of the claim, the litigant's interest, and the remedy sought by the litigant.31 In some cases, legal claims against an administrative agency involve issues not cognizable by the agency, and application of the Administrative Procedures Act will not bar relief sought by a litigant in a District Court.32 We have observed that a "serious constitutional question" would arise if a court were to construe a statute in a manner that would deny a litigant any judicial forum to litigate a colorable constitutional claim.33 ¶34 A constitutional question would arise if the University made the argument that no judicial review of any nature was available to review the denial of due process rights possessed by a student in a student disciplinary hearing. But the University is not making the argument that judicial review of its actions is unavailable. The University's argument is that if a student is subject to discipline less than expulsion and that student's due process rights are violated, then that student may bring a civil action in a District Court alleging that the University violated the student's rights. George did not specify any property or liberty interest that he possesses that would be judicially unprotected if he is required to champion that interest in a District Court independent legal action instead of a District Court administrative appeal. He did not explain with legal authority how a statutory classification of those possessing due process rights in proceedings less than expulsion were constitutionally disadvantaged by bringing their due process claims in a District Court independent action as opposed to bringing them in a District Court administrative appeal. ¶35 This Court has long recognized that "the courts of equity are always open to afford a remedy where there is an attempt, under the guise of legal proceedings, to deprive a person of his life, liberty, or property without due process of law."34 While equity will not be used to supplant an available, adequate, and required legal remedy for a particular circumstance,35 in the absence of such a remedy both equitable and declaratory relief are available to prevent or remedy an unconstitutional administrative act by one aggrieved thereby. It is not a novel concept in the law to state that a remedy in the form of a civil action for a legally cognizable controversy is available when no specific administrative procedure or specific statutory procedure is provided for the circumstance.36 For example, we recently affirmed a District Court's order issuing a temporary injunction as necessary to preserve the status quo while the plaintiff sought declaratory and injunctive relief when the injunction was based upon plaintiff's due process rights to participate in administrative proceedings with a "meaningful opportunity to be heard." Daffin v. State ex rel. Dept. of Mines, 2011 OK 22, ¶ 6, 251 P.3d 741, 745. ¶36 Our construction of § 250.4 does not deprive a litigant of a judicial forum to hear a constitutional claim challenging an administrative action. We hold that 75 O.S. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student, like George, is subject to discipline less than expulsion for an institutional rule infraction; and that George's remedy of an independent civil action is adequate to redress any alleged violation by the University of his claimed rights to due process in the University's administrative proceedings. III. Due Process and Multiple Strikes Against the Alcohol Policy ¶37 George maintained that the automatic suspension as a penalty on a "Third Strike" was equivalent to an expulsion and Article II applied on a Third Strike. He also argued that the two proceedings culminating in the First and Second Strikes would be used as a partial basis for a Third Strike, and thus the first two administrative proceedings must be subject to Article II of the Administrative Procedure Act. The express language of § 250.4 does not make non-expulsion disciplinary proceedings subject to Article II when they are considered in a subsequent expulsion proceeding. Thus, George's argument was that constitutional necessity made the First and Second Strike proceedings subject to Article II. ¶38 In 1975 the U. S. Supreme Court determined that in the State of Ohio, on the basis of state law, primary and secondary students "had legitimate claims of entitlement to a public education . . . [and because statutes] direct local authorities to provide a free education to all residents between five and 21 years of age," the students thus possessed a property interest in public education; and "[h]aving chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent, fundamentally fair procedures to determine whether the misconduct has occurred." Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The Tenth Circuit Court of Appeals relied upon Goss v. Lopez when it concluded that a student at Oklahoma's Gordon-Cooper area Vocational-Technical School who was pursuing courses, studies and practical training in the Division of Practical Nursing at Shawnee, Oklahoma, possessed a property right protected by the Due Process Clause because of her payment of fees. Gaspar v. Bruton, 513 F.2d 843, 850 (10th Cir. 1975). ¶39 Then, in Harris v. Blake, 798 F.2d 419 (10th Cir. 1986), the Tenth Circuit Court of Appeals used the analysis applied to primary and secondary students in Goss v. Lopez and applied it to students of the University of Northern Colorado. In Goss, the State of Ohio had entitled its residents to a primary and secondary education. See id. 419 U.S. at 573, 95 S. Ct. at 735. Colorado has created the basis for a similar claim of entitlement to an education in its state college system, which includes the University of Northern Colorado. The legislature has directed that these colleges "shall be open ... to all persons resident in this state" upon payment of a reasonable tuition fee. Colo.Rev.Stat. § 23-50-109 (1973). The actual payment of tuition secures an individual's claim of entitlement. See Gaspar, 513 F.2d at 850. Accordingly, Harris had a property interest in his CSAP enrollment which entitled him to procedural due process. 798 F.2d at 422, note omitted. In Goss, Gaspar, and Harris, the courts first determined whether a property right was present based upon either state statutes or the payment of fees or tuition. This burden and a party's failure to satisfy it was noted in Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 80, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978), where the Court said "Because property interests are creatures of state law, . . . respondent would have been required to show at trial that her seat at the Medical School was a 'property' interest recognized by Missouri state law," and that no showing was made by the litigant on this point. Id. 435 U.S. at 82. ¶40 George relied in his brief on Goss, Harris, and Gaspar for the proposition that he possessed a property right subject to Due Process protection when he was disciplined. George's District Court filings and brief in this Court do not refer to any state statute, such as those cited in both Goss and Harris, for showing that he has a property right created by Oklahoma law. There is no allegation in George's District Court verified petition that he paid fees. George does state in his brief in this Court that he paid fees. However, a litigant may not supplement an appellate record to show a fact that is a necessary element to that party's claim or cause of action in the trial court by merely asserting that fact in his or her brief in this Court.37 George is a student at the University of Oklahoma, and this Court may take judicial notice of state statutes relating to tuition at public universities such as 70 O.S. 2011 § 3218.8. Keota Mills & Elevator v. Gamble, 2010 OK 12, n. 10, 243 P.3d 1156, 1158. However, taking such judicial notice does not supply the missing fact whether George actually paid such tuition or fee, or is a student in good standing on the basis of such payment. In Board of Curators of the University of Missouri v. Horowitz, supra, the Court assumed that the respondent possessed both a property and liberty interest. Id. 435 U.S. at 84-85. Regardless of George's procedural deficiencies, like the court in Horowitz we will assume for the purpose of George's Third-Strike argument in the matter before us that he possessed a property right created by state law.38 We also assume for the purpose of this argument that the Third Strike suspension is an expulsion for the purpose of § 250.4. We now turn to George's multiple-strike argument ¶41 George's brief in this Court argued that "the 'strike two' nature of the proceedings against him is a precursor event that would result in expulsion in a 'strike three' hearing" and that "by itself" makes the strike-two hearing an expulsion proceeding. Brief at p.8. He also characterized the first two strikes as "merely steps leading to potential expulsion." Brief at n. 4. We disagree with this characterization. The first two strikes are not elements of a Third Strike offense. The Third Strike institutional rule is a method of enhancing punishment similar to a recidivist statute. ¶42 George's characterization that a no-expulsion Second Strike proceeding is constitutionally deemed, or turned into, an expulsion proceeding due to the possibility of a subsequent Third Strike expulsion proceeding is simply an incorrect concept. For example, "Enhancement statutes, . . . that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction." Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). In Nichols the Court also explained that consistent with the Sixth and Fourteenth Amendments an uncounseled misdemeanor conviction, valid due to absence of imposition of prison term, could be used for enhancement of punishment for a subsequent conviction where a prison term was imposed. Id. at 511 U.S. 746-749. In Nichols the former proceeding was not required to possess all of the procedures constitutionally required for the subsequent proceeding although the punishment in the subsequent proceeding was enhanced by the conviction in the former. George's brief in this Court cites no authority in support of his argument that a prior non-expulsion offence must constitutionally be deemed to be an expulsion proceeding due to the possible threat of an enhanced-punishment subsequent offense. In the absence of any authority cited by George on this point other than the trial judge's opinion, we thus reject George's claim that the possibility of the Third Strike with an enhanced punishment constitutionally requires a Second Strike proceeding to be subject to Article II with appellate review in a District Court. IV. Additional Due Process Arguments ¶43 George argued that when the University employed one attorney to counsel the Campus Disciplinary Board and another lawyer to prosecute George for institution infractions, this conduct was an egregious violation of due process that "is inherently unfair and unconstitutional and smacks of impropriety." However, the fact that an agency participates in the investigation, prosecution and adjudication of matters before it has been held not to violate the due process clause. State ex rel. Oklahoma Dept. of Mines v. Jackson, 1997 OK 149, ¶ 11, 950 P.2d 306, 310. An administrative deprivation of a constitutionally protected property or liberty interest must be accomplished by an impartial and disinterested tribunal in an adjudicative process where the procedures employed are appropriate for the constitutional interest at stake. Bowen v. State ex rel. Oklahoma Real Estate Appraiser Board, 2011 OK 86, ¶ 12, 270 P.3d 133, 136-137. George's argument addresses whether a due process violation occurred during the University proceedings and what process George was due. It does not address whether George was entitled to an administrative appeal to the District Court. His other due process arguments also address the nature of the proceedings before the University and not a right to an administrative appeal. ¶44 Absent exigent and unusual circumstances not present here, in the context of original supervisory writ this Court does not make first-instance assessments of applying legal principles to facts, but allows the parties to develop issues of fact and law in the trial court.39 The record before us affirmatively shows that the trial court adjudicated a motion involving its appellate jurisdiction. George's additional due process arguments were not adjudicated by the District Court, and we decline to adjudicate them in the first instance. V. Conclusion ¶45 We hold that: (1) 75 O.S. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student is subject to discipline less than expulsion for an institutional rule infraction; (2) the remedy of an independent District Court civil action is an adequate remedy for an alleged violation by the University of a student's rights to due process in a University disciplinary proceeding; (3) the possibility of a subsequent institutional offense that is subject to Article II of the Administrative Procedures Act having an enhanced punishment because of former offenses does not require the former offenses to be also subject to Article II of the Administrative Procedures Act; and (4) absent unusual circumstances not present here, we decline in a supervisory writ proceeding to adjudicate constitutional arguments that were not adjudicated in the District Court. ¶46 We assume original jurisdiction, issue prohibition to prevent enforcement of the order denying summary judgment on the sole ground that the District Court lacks appellate administrative jurisdiction, and direct the District Court to dismiss George's administrative appeal. We decline to address the merits of George's due process claims relating to the procedures of the University. ¶47 WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, and GURICH, JJ., concur. ¶48 COLBERT, C. J., REIF, V. C. J., and KAUGER, J., dissent. FOOTNOTES 1 We direct the Clerk of this Court to correct the style of this proceeding on the docket of this Court from the style used in the certiorari proceeding: Frank George, Plaintiff/Respondent v. State of Oklahoma, ex rel., Board of Regents of the University of Oklahoma, ex rel., Campus Disciplinary Council of the University of Oklahoma, Defendant/Petitioner, to the correct style for an original jurisdiction supervisory writ proceeding: State of Oklahoma, ex rel., Board of Regents of the University of Oklahoma, ex rel., Campus Disciplinary Council of the University of Oklahoma, Petitioner v. The Honorable Tom A. Lucas, District Judge, Respondent, and Frank George, Real Party In Interest. 2 First, the order does not finally adjudicate the merits the action presented by the parties and is thus not a judgment. 12 O.S.2011 § 681; Clay v. Independent School Dist. No. 1 of Tulsa Cnty, 1997 OK 13, 935 P.2d 294, 298 (A judgment is the final determination of the rights of the parties in an action.); State ex rel. Oklahoma Bd. of Medical Licensure and Supervision v. Pinaroc, 2002 OK 20, n. 5, 46 P.3d 114, 118 ("An interlocutory order is an order which is not 'final', does not culminate in a judgment, leaves the parties before the tribunal to try the issues on the merits, and may not be appealed unless authorized by statute."). Second, the order fails to satisfy 12 O.S. § 953 finality in that the order does not determine an action and prevent a judgment, and it is not an order affecting a substantial right made in a special proceeding or upon summary application after judgment. Title 12 O.S.2011 § 953 provides:An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article. 3 12 O.S.2011 § 952(b)(3): (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: . . . 3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. . . Oklahoma Supreme Court Rule 1.50 provides:"Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge's successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order. 12 O.S. 2011 § 952, Subdiv. (b)(3). No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment. See Rule 1.40 for the application of other rules to review of a certified interlocutory order." 4 In the context of this Court's review of certified interlocutory orders, this Court has addressed questions relating to jurisdiction. See, e.g.,Rogers v. Quicktrip Corp., 2010 OK 3, ¶ 3, 230 P.3d 853, (The issue presented by the parties was whether a District Court or the Corporation Commission had jurisdiction over the dispute.); Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, ¶ 38, 212 P.3d 447, 460 (Court held that an Oklahoma District Court was a "court of competent jurisdiction" to hear the controversy.); State ex rel. Oklahoma Tax Commission v. Texaco, 2005 OK 52, n. 5, 131 P.3d 705, 709 ("In this opinion, we only determine that the OTC plead allegations sufficient to invoke the jurisdiction of the district court based on false or fraudulent tax reports."). 5 Ricks Exploration Co. v. Oklahoma Water Resources Bd., 1984 OK 73, 695 P.2d 498, 502 (In Ricks we stated that a District Court's dismissal of a controversy for lack of jurisdiction "will stand terminated by a decision dehors the merits of the case."); Swan v. Sargent Industries, 1980 OK CIV APP 49, 620 P.2d 473 (approved for publication by Supreme Court), (earlier dismissal for want of personal jurisdiction over a defendant does not preclude a subsequent litigation on the merits before a court of competent jurisdiction, although it does bar a retender upon the same issue of personal jurisdiction). Cf. Samson Resources Co. v. Newfield Exploration Mid-Continent, Inc., 2012 OK 68, ¶ 15, 281 P.3d 1278, 1283 ("While we express no view on the merits of Samson's claims, the district court erred by dismissing the case for lack of subject matter jurisdiction."). This view is also consistent with our opinions explaining that an adjudication on a jurisdictional claim is not usually considered as an adjudication on the merits of the controversy when the plea of res judicata (claim preclusion) is made. Dearing v. State ex rel. Comr's of the Land Office, 1991 OK 6, n. 5, 808 P.2d 661, 665 (A plea of res judicata is based upon a judgment that was rendered on the merits of the case and not upon purely technical grounds.) citing, Powell v. Chastain, 1961 OK 28, 359 P.2d 336, 340 ("A judgment upon a demurrer which is based upon formal or technical defects of pleadings, a lack of jurisdiction, a mis-joinder of parties, or the like, as it does not involve the merits of the controversy, cannot be made available as res judicata."). Cf. Read v. Read, 2001 OK 87, n. 18 57 P.3d 561, 567 (Court explained res judicata as claim preclusion based upon a final judgment on the merits.). 6 Powers v. District Court of Tulsa County, 2009 OK 91, ¶ 6, 227 P.3d 1060, 1067. 7 Colton v. Huntleigh USA Corp., 2005 OK 46, ¶¶ 9-11, 121 P.3d 1070, 1073. 8 Holt v. U. S., 46 F.3d 1000, 1003 (10th Cir. 1995) (The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.); Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98 L. Ed. 2d 501 (1987) ("When subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined."). One of the examples cited in Wheeler, supra, is Clark v. Tarrant County, Texas, 798 F.2d 736 (5th Cir. 1986), where Title VII [42 U.S.C. § 2000e] provided subject matter jurisdiction in a District Court as well as defining such claims, and the issues involved whether the plaintiffs were "employees" for a Title VII cause of action and if the District Court possessed Title VII jurisdiction. 9 Powers v. District Court of Tulsa County, 2009 OK 91, ¶ 6, 227 P.3d 1060, 1067 ("When facts outside of the pleadings are submitted on the issue of in personam jurisdiction, a motion to dismiss is not converted to a motion for summary judgment unless resolution of the jurisdictional question is intertwined with the merits of the cause of action.). See also Holt v. U. S., 46 F.3d 1000, 1003 (10th Cir. 1995); Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir.1991); Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98 L. Ed. 2d 501 (1987). 10 In State ex rel. Wright v. Corporation Commission, 2007 OK 73, ¶ 48, 170 P.3d 1024, 1039, this Court stated that it "has consistently stated that a motion to dismiss for failure to state a claim upon which relief may be granted, as provided by 12 O.S.2001 § 2012(B)(6), is to be treated as a motion for summary judgment when matters outside of the pleadings are presented in support of the motion and those extra-pled matters are not excluded by the trial court when the motion is considered." Conversion of a motion to dismiss with a jurisdictional claim intertwined with a claim on the merits of the controversy would appear to require conversion of such a motion to one for summary judgment for two related reasons. First, an adjudication in the form of summary judgment is on the merits of a controversy. See City of Broken Arrow v. Bass Pro Outdoor World, L.L.C., 2011 OK 1, n. 2, 250 P.3d 305, 310, citing, Union Oil Company v. Board of Equalization, 1996 OK 40, 913 P.2d 1330, 1334, for the proposition that granting a summary judgment motion is an adjudication on the merits of a cause of action. Second, a moving party's burden changes when a motion to dismiss that addresses the merits of a claim (or cause of action) is converted to a motion for summary judgment, State ex rel. Wright, supra, at ¶ 48. Thus, if a motion raises both jurisdiction and a § 2012(B)(6) failure to state a claim, and motion relies upon extra-pleading facts, then the jurisdiction/merits motion is converted to one for summary judgment with the respective procedural and substantive burdens placed upon the parties for such a motion. 11 S. W. v. Duncan, 2001 OK 39, ¶ 13, 24 P.3d 846, 850 ("We also recognize that prohibition is a proper remedy to prevent an inferior court from proceeding in a cause without authority or in excess of its jurisdiction."); State v. Dixon, 1996 OK 15, 912 P.2d 842, 843 ("Petition for writ of prohibition or mandamus is appropriate to challenge the subject matter jurisdiction of the district court."); Crescent Corp. v. Martin, 1968 OK 95, 443 P.2d 111, 114 (assuming original jurisdiction and issuing prohibition is an available discretionary remedy when a respondent court does not have in personam jurisdiction); Pine v. Superior Court of Seminole County, 1934 OK 655, 39 P.2d 530, 532 ("Prohibition will only lie where the lower tribunal is without jurisdiction or is about to make an unauthorized use of judicial force or power."). Although a constitutional writ of certiorari may be used to bring up a record of an inferior court to a superior court for review of jurisdictional error, Parmenter v. Ray, 1916 OK 600, 158 P. 1183, 1184-1185, and the Court has Constitutional authority for issuing this discretionary writ in various circumstances; the Court's rules require the parties to prepare a record to be used for a supervisory writ proceeding, Okla.Sup.Ct.R. 1.191, and a jurisdictional challenge is more frequently sought by a request for a writ of prohibition. 12 75 O.S. 2011 § 250.1: A. The Administrative Procedures Act shall be composed of two Articles. Sections 250, 250.1, 250.3, 250.4, 250.5 and 250.8 of this title are applicable to both Articles I and II. Article I relating to agency filing and publication requirements for rules shall consist of Sections 250.2, 250.6, 250.7 and 250.9 through 308.2 of this title and Section 5 of this act. Article II relating to agency notice and hearing requirements for individual proceedings shall consist of Sections 308a through 323 of this title. B. Except as otherwise specifically provided in Section 250.4 of this title, all agencies shall comply with the provisions of Article I and Article II of the Administrative Procedures Act. 13 75 O.S. 2011 § 318: A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. 2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions. 3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review. B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court. 2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, naming as respondents only the agency, such other party or parties in the administrative proceeding as may be named by the petitioner or as otherwise may be allowed by law, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title. C. Copies of the petition shall be delivered in person or mailed, postage prepaid, to the agency and all other parties of record, and proof of such delivery or mailing shall be filed in the court within ten (10) days after the filing of the petition. Any party not named as a respondent in the petition is entitled to respond within ten (10) days of receipt of service. The court, in its discretion, may permit other interested persons to intervene. D. In any proceedings for review brought by a party aggrieved by a final agency order: 1. The agency whose final agency order was made subject to review may be entitled to recover against such aggrieved party any court costs, witness fees and reasonable attorney fees if the court determines that the proceeding brought by the party is frivolous or was brought to delay the effect of said final agency order. 2. The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous. 14 75 O.S. 2011 § 310: In individual proceedings:1. Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law in respect to: self-incrimination; confidential communications between husband and wife during the subsistence of the marriage relation; communication between attorney and client, made in that relation; confessions made to a clergyman or priest in his or her professional capacity in the course of discipline enjoined by the church to which he or she belongs; communications made by a patient to a licensed practitioner of one of the healing arts with reference to any physical or supposed physical disease or of knowledge gained by a practitioner through a physical examination of a patient made in a professional capacity; records and files of any official or agency of any state or of the United States which, by any statute of a state or of the United States are made confidential and privileged. No greater exclusionary effect shall be given any such rule or privilege than would obtain in an action in court. Agencies may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form; 2. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original; 3. A party may conduct cross-examinations required for a full and true disclosure of the facts; 4. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. 5. Any party shall at all times have the right to counsel, provided that such counsel must be duly licensed to practice law by the Supreme Court of Oklahoma, and provided further that counsel shall have the right to appear and act for and on behalf of the party represented. 6. A party may request the exclusion of witnesses to the extent and for the purposes stated in Section 2615 of Title 12 of the Oklahoma Statutes. Exclusion of a witness shall not be a violation of the Oklahoma Open Meeting Act. 15 75 O.S. 2011 § 312: A. A final agency order adverse to a party shall: 1. Be in writing; and 2. Include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the final agency order shall include a ruling upon each proposed finding. B. Parties shall be notified either personally or by certified mail, return receipt requested, of any final agency order. Upon request, a copy of the order shall be delivered or mailed forthwith to each party and to his attorney of record. 16 See, for example, Annandale Golf Club v. Smith, 110 Cal. App. Supp. 765, 289 P. 806 (Cal. Super. 1930), where the Court quoted 25 Ruling Case Law, 56, for the concept that the distinction between suspension and expulsion is frequently recognized in the bylaws of societies and clubs, where during a suspension the person remains a member, but upon expulsion the person loses membership status. 289 P. at 808. Cf. Black's Law Dictionary, 522, 1297 (5th ed. 1979) (expulsion is a permanent deprivation of membership in an organization; suspension of right is a partial extinguishment of a right for a time and the right is susceptible of being revived). This distinction appears to have been used by our Court of Civil Appeals in Mason v. State ex rel. Board of Regents of the Univ. of Okla., 2001 OK CIV APP 33, ¶ 16, 23 P.3d 964, 970 (released for publication by order of the Court of Civil Appeals). In Mason, the court assumed for the purpose of argument that a student code could create a contract between a student and the university while the person was student, but after the student was expelled he was no longer a party to the contract and no new contract-based obligations from the student code could be created because such obligations required a person's status as a student. 17 University of Oklahoma Student Code, 2010 - 2011, Title 17 Sanctions, 1.2.1 & 1.2.2 state: The following sanctions may be imposed on students by the appropriate Campus Disciplinary Council or the proper administrative officials: .1 Suspension: Exclusion from classes and other privileges or activities as set forth in the notice for a definite period of time not to exceed two years or until the conditions which may be set forth are met. .2 Expulsion: Termination of student status for an indefinite period. The conditions of readmission, if any, shall be stated in the order of expulsion. When an offense is so severe that the University will not allow the student to re-enroll, the student will be expelled. Expulsion is not a permanent separation, but neither is a definite time set when return is expected. If a student is reinstated after an expulsion, it is only after a complete consideration of his or her case. 18 A Strike "is the University's official recognition of a student's or organization's violation of the University's alcohol policy. . . A strike is a final University disciplinary action which finds the accused guilty of an alcohol related offense." University of Oklahoma Student Code, 2010 - 2011, Three Strikes Policy. O.R. at p. 31 A student may request that a First Strike be removed from his or her record, and some alcohol-related offenses: "shall be entitled to an automatic deferred first strike: minor in possession and/or public intoxication." University of Oklahoma Student Code, 2010 - 2011, Student Alcohol Policy O.R. at 32. The Student Alcohol Policy also states that: "To qualify for a deferral and ultimate removal of the first strike, a student must not receive any other alcohol offense for a period of twelve months . . . However, if the student receives another alcohol offense of any nature, within the 12-month period, the deferral of the first strike shall be revoked and the second alcohol offense shall be considered a second strike." Id. 19 Disciplinary Probation is: "Exclusion from participation in privileged or extracurricular institution activities set forth in the notice for a period of time specified. Other conditions of the probation may apply to any other activities of the student in the University Community, except those which would affect his or her academic pursuits." University's Mtn. To Dismiss, Ex. 2, University of Oklahoma Student Code, 2010 - 2011, Title 17 Sanctions, 1.4. O.R. at p. 29. 20 BNSF Ry. Co. v.Bd. of Cnty. Comr's of Tulsa Cnty, 2011 OK CIV APP 32, ¶ 11, 250 P.3d 906, 909-910 (Approved for Publication by Supreme Court). See also Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶ 10, 174 P.3d 996, 1002 (Unsworn statements of counsel in a motion do not constitute evidence.). 21 75 O.S.2011 § 319 (1) & (2) states in part the following: "(1) The filing of a proceeding for review shall not stay enforcement of the agency decision; but the agency may do so, or the reviewing court may order a stay upon such terms as it deems proper, and shall do so whenever required by subsection (2) of this section. (2) In every proceeding in any court for the review of an order of an agency, upon the filing of an application, supported by verified statements of material fact establishing that the enforcement of the order pending final decision would result in present, continuous and irreparable impairment of the constitutional rights of the applicant, a stay of the enforcement of such order and of the accrual of penalties thereunder shall be entered upon the condition that: . . . ." 22 Rules of grammar are presumed to have been known to the Legislature, and a proviso in a statute is presumed to refer only to the provision to which it is attached, and is generally deemed to apply only to the clause or provision immediately preceding it. Goodin v. Brown, 1956 OK 242, 301 P.2d 652, 654. 23 See, e.g., State ex rel. Oklahoma Bar Association v. Mothershed, 2011 OK 84, ¶ 61, 264 P.3d 1197, 1220-1221, (first, rights such as notice and opportunity to be heard originated from the Due Process Clauses as applied to the lawyer's right in his or her license to practice law, and not the mere codification of those procedures in the Rules Governing Disciplinary Proceedings for lawyers; and second, while certain procedures in the "code" for disciplinary proceedings contained procedures required by due process, it was not a code which showed compliance with due process but particular provisions contained therein). 24 We note that George's construction of § 250.4(B)(12) would fail even if that language was ambiguous as his argument implies. This is so because George's construction takes the statutory distinction between expulsion and non-expulsion proceedings in one portion of the paragraph and negates it with language in another portion of the same paragraph when such negation is not required by the language used therein. One rule of statutory construction used with ambiguous statutory provisions is that the provisions are construed in such a manner as to render all of the language consistent and harmonious with intelligent effect given to all of language. South Tulsa Citizens Coalition v. Arkansas River Bridge Authority, 2008 OK 4, ¶ 15, 176 P.3d 1217, 1221. See also Upton v. State ex rel. Depart. of Corrections, 2000 OK 46, ¶ 6, 9. P.3d 84, 86-87 (when possible the Court is required to construe statutory provisions together in order to give force and effect to each); Sharp v. Tulsa County Election Board, 1994 OK 104, ¶ 11, 890 P.2d 836, 840 (the Court construes different provisions of statutes to make them consistent and harmonious). Application of this rule of construction would leave intact the same meaning provided by the plain meaning of the statutory language, i.e., § 250.4(B)(12) distinguishes between expulsion and non-expulsion student discipline for the purpose of applying Article II. 25 Oklahoma's Due Process Clause, Okla. Const. Art. 2 § 7, is coextensive with its federal counterpart, although there may be situations in which the Oklahoma provision affords greater due process protections than its federal counterpart. Oklahoma Corrections Professional Ass'n, Inc. v. Jackson, 2012 OK 53, n. 13, 280 P.3d 959, 963. Okla. Const. Art. 2 § 7 provides that: "No person shall be deprived of life, liberty, or property, without due process of law." The United States Const., Amend. 14, provides in pertinent part:"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...." 26 The fallacy of division occurs when one infers that an attribute of a "part" of a "whole" must necessarily exist because the "whole" has that same attribute, and fallacy of composition is that an attribute of a "whole" must exist because the attribute appears in a "part" of that whole. See State ex rel. Oklahoma Bar Association v. Mothershed, 2011 OK 84, n. 91, 264 P.3d 1197, 1220, citing Irving M. Copi & Carl Cohen, Introduction to Logic, 168-170 (11th ed. 2001) and Harry J. Gensler, Logic: Analyzing and Appraising Arguments, 337(1989). 27 County of Sacramento v. Lewis, 523 U.S. 833, 850, 118 S. Ct. 1708, 140 L. Ed. 2d 1043, 1056 (1998) ("... [O]ur concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.... Asserted denial is to be tested by an appraisal of the totality of facts in a given case."); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) ("It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands."); Rogers v. Bailey, 2011 OK 69, ¶ 19, 261 P.3d 1150, 1158 (" The Due Process Clause does not, by itself, mandate any particular form of procedure. . . Due process 'is not a technical conception with a fixed content unrelated to time, place and circumstances.' . . '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.); Flandermeyer v. Bonner, 2006 OK 87, ¶ 10, 152 P.3d 195, 199 ("Due process is flexible and calls for such procedural protections as the particular situation demands. Before a party's due process rights are violated, it must be shown that the action or error was arbitrary, oppressive and shocking to the conscience of the court."); See also Reid v. Covert, 354 U.S. 1, 75, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957) (Harlan, J., concurring in result) ("[T]he question of which specific safeguards of the Constitution are appropriately to be applied in a particular context ... can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case"). 28 Although the Oklahoma Constitution does not contain an equal protection provision like or similar to that found in its federal counterpart, this Court has explained that a functional equivalent of the equal protection guarantee of the 14th Amendment of the U. S. Constitution is part of the State's Due Process provision, Okla. Const. Art. 2 § 7. Eastern Oklahoma Bldg. & Constr. Trades Council v. Pitts, 2003 OK 113, ¶ 8, n. 2, 82 P.3d 1008, 1012; Gladstone v. Bartlesville Indep. School Dist. No. 30, 2003 OK 30, n. 15, 66 P.3d 442, 446; Oklahoma Association for Equitable Taxation v. Oklahoma City, 1995 OK 62, ¶ 12, 901 P.2d 800, 805. 29 For example, § 250.4 states that Article II does not apply to The Oklahoma Tax Commission, The Commission for Human Services, The Oklahoma Ordnance Works Authority, The Corporation Commission, Pardon and Parole Board, the Midwestern Oklahoma Development Authority, Grand River Dam Authority, Northeast Oklahoma Public Facilities Authority, Council on Judicial Complaints, Board of Trustees of the Oklahoma College Savings Plan, etc. 75 O.S.2011 § 250.4 (B) (1-10). 30 Union Indemnity Co. v. Saling, 1933 OK 481, 26 P.2d 217, 221-222 ("It may be safely stated as a general rule that the provisions of our Constitution require that the decisions of administrative boards especially on questions of law be subject to judicial review . . . This rule, however, is subject to exceptions and qualifications . . . ."). Cf. Associated Industries of Oklahoma v. Industrial Welfare Commission, 1939 OK 155, 90 P.2d 899, 901, (Syllabus by the Court), ("Due process of law requires an opportunity for judicial review of administrative orders establishing minimum wages and maximum hours of employment for the purpose of determining whether such orders are within the reasonable limits of administrative discretion and are confiscatory in their application."). In State ex rel. Westbrook v. Oklahoma Public Welfare Commission, 1946 OK 95, 167 P.2d 71, 72-73, we relied upon a right-privilege dichotomy for the principle that an administrative agency may possess final authority to decide an issue without judicial review. But in Westbrook the Court examined the litigant's claim of arbitrary and capricious administrative conduct, and nothing in Westbrook precludes the idea that an opportunity for judicial review of administrative actions must be available for constitutional claims. 31 See, e.g., Bird v. Willis, 1996 OK 116, ¶ 21, 927 P.2d 547, 552 (when the Administrative Procedures Act did not provide a procedure for litigant challenging an administrative act as contrary to law, mandamus was an available remedy to (1) compel the performance of an act by a state board or agency which the law specially enjoins as a duty, and (2) for correction of an administrative official's abuse of discretion where the action is arbitrary.); State ex rel. Tulsa Classroom Teacher's Ass'n, Inc. v. Board of Equalization, 1979 OK 129, ¶¶ 7-8, 600 P.2d 861, 863 (Court noted that particular litigant's available remedy was mandamus and exhaustion of administrative remedy was not required); Bare v. Patterson, 1948 OK 148, 195 P.2d 281, 283, (although mandamus would not ordinarily lie to correct errors of judgment by a board in matters within the board's jurisdiction, the Court would review a record of a board to determine is it acted beyond its jurisdiction or in excess of authority and then correct the board's decision by mandamus); Oklahoma City Zoological Trust v. State ex rel. Public Employees Relations Bd., 2007 OK 21, ¶ 7, 158 P.3d 461, 464-465 ("But one need not exhaust administrative remedies where, as here, 'the power of the agency to act at all under the statutory scheme it is charged with administering' is being challenged."); Lone Star Helicopters, Inc. v. State, 1990 OK 111, 800 P.2d 235, 238 (the exhaustion-of-remedies doctrine was not invocable as a bar to the action for recovery of damages from breach of contract). 32 State ex rel. Okla. Dept. of Mines v. Jackson, 1997 OK 149, ¶ 12, 950 P.2d 306, 310 ("Because the sureties actions tender issues that are not cognizable by ODM the exhaustion-of-remedies doctrine is not invocable as a bar to their quests for declaratory relief."). 33 Elgin v. Department of Treasury, ___U.S. ___ , 132 S. Ct. 2126, 2132, 183 L. Ed. 2d 1 (2012), quoting Webster v. Doe, 486 U.S. 592, 603, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988). See also our discussion in Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶¶ 8-9, 90 P.3d 546, 550, citing Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271, and explaining that we have consistently declined to interpret our statutory provisions in a manner which would deprive prisoners access to civil judicial process. 34 Kerker v. Bocher, 1908 OK 52, 95 P. 981, 994 quoting with approval French v. Barber Asphalt Pav. Co., 181 U.S. 324, 345, 21 S. Ct. 625, 45 L. Ed. 879 (1901). 35 Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, n. 43, 270 P.3d 113, 125. 36 See, e.g., Adair v. Clay, 1988 OK 77, 780 P.2d 650, 654, cert. denied, 493 U.S. 1076, 110 S. Ct. 1125, 107 L. Ed. 2d 1032 (1990) (Title 68 O.S.1981 § 2469 [now codified at 68 O.S. 2011§ 2886] provided for a direct suit for refund "[i]n all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal."); Macy v. Oklahoma City School District No. 89, 1998 OK 58, ¶ 17, 961 P.2d 804, 808 (The Court noted that equity had been used in Walker v. Oak Cliff Volunteer Fire Protection Dist., 1990 OK 31, ¶ 14, 807 P.2d 762, to provide a remedy for the purpose of challenging an invalid election if there was no statutory provision allowing an election contest, and if the challenge involved civil or property rights, rather than political rights.). 37 An admission against a party's interest made in an appellate brief may be used to supplement an appellate record. Jernigan v. Jernigan, 2006 OK 22, n. 14, 138 P.3d 539, 545. This concept applies to briefs in extraordinary writ proceedings. Powers v. District Court of Tulsa County, 2009 OK 91, n. 20, 227 P.3d 1060, 1069. George's assertion of payment of a fee is not an admission against interest, and there is no discussion of George's payment of fees in University's briefs filed in this Court. 38 While George made claims to a property interest protected by constitutional due process, he made no claim that he was deprived of a liberty interest by the actions of the University. 39 Crest Infiniti, II, LP v. Swinton, 2007 OK 77, n. 8 , 174 P.3d 996, 1001, Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232, 1240; Christian v. Gray, 2003 OK 10, ¶ 26, 65 P.3d 591, 604. KAUGER, J., with whom COLBERT C.J., and REIF, J., join dissenting: ¶1 The district court seeks an answer to the following question: Does it have jurisdiction to review a University Disciplinary Council proceeding brought against a student? The answer is: Yes, but not under the review proceeding provided for in the Administrative Procedure Act (APA), 75 O.S. 2011 §§250 et seq. ¶2 Article II of the APA concerns individual proceedings.1 The APA defines individual proceedings as: "the formal process employed by an agency having jurisdiction by law to resolve issues of law or fact between parties and which results in the exercise of discretion of a judicial nature."2 Even though the individual proceedings are expressly made judicial in nature by the APA, such proceedings are generally not governed by the Rules for the District Courts.3 ¶3 Rather, the APA provides detailed procedures to ensure that the same rights which are provided in district court actions are also preserved in administrative proceedings.4 The underlying purpose of the statutory requirements regarding rulings for individual proceedings is to enable a reviewing court to intelligently examine the order of an administrative agency and ascertain if the facts and law upon which the order is based afford a reasonable basis.5 ¶4 At issue here is 75 O.S. 2011 §250.4(B)(12) which provides in pertinent part: B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: ... 12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, and the following grounds of misconduct, if properly alleged in disciplinary proceedings against a student, shall be cause to be barred from the campus and be removed from any college or university-owned housing, upon conviction in a court of law: a. participation in a riot as defined by the penal code, b. possession or sale of any drugs or narcotics prohibited by the penal code, Section 1 et seq. of Title 21 of the Oklahoma Statutes, or c. willful destruction of or willful damage to state property. The plain language of this statute states that the University, when holding disciplinary proceedings in which expulsion is concerned, must comply with the individual proceeding requirements of the APA. However, if something less than expulsion is sought, the strict procedural strictures of individual proceedings do not apply, but due process rights such as notice and a hearing and any other rights required by law are preserved and expressly required. ¶5 Here, because expulsion was not sought, under the plain language of §250.4(B)(12), the formalities of an individual proceeding were not required. Had they been, 75 O.S. 2011 §318 provides for court review of the individual proceeding.6 However, students' due process rights are expressly preserved by the APA,7 and even if they were not, minimal due process standards are constitutionally guaranteed.8 Section 318 also expressly provides that: "this section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions."9 ¶6 Title 12 O.S. 2011 §951 fills in where the APA ends. It states: a) A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law. (b) Unless otherwise provided by law, proceedings for review of a judgment or final order shall be commenced by filing a petition in the district court of the county where the inferior tribunal, board or officer rendered the order within thirty (30) days of the date that a copy of the judgment or final order is mailed to the appellant, as shown by the certificate of mailing attached to the judgment or final order. Here, the University's Disciplinary Council was acting as the functional equivalent of a judge in a judicial proceeding.10 This is so because the APA expressly provides for notice, hearing, and other required due process considerations to be accommodated even when a discipline less than expulsion was sought.11 Even if it didn't, university proceedings such as this are recognized to be quasi-judicial proceedings.12 ¶7 Both the APA and §951 apply to this cause. The district court clearly had jurisdiction to review this disciplinary proceeding. Rather than force this student to start all over, the matter should be remanded for a continuation of that review. FOOTNOTES 1 Title 75 O.S. 2011 §250.1 provides: A. The Administrative Procedures Act shall be composed of two Articles. Sections 250, 250.1, 250.3, 250.4, 250.5, and 250.8 of this title are applicable to both Articles I and II. Article I relating to agency filing and publication requirements for rules shall consist of Sections 250.2, 250.6, 250.7 and 250.9 through 308.2 of this title and Section 5 of this act. Article II relating to agency notice and hearing requirements for individual proceedings shall consist of Sections 308a through 323 of this title. B. Except as otherwise specifically provided in Section 250.4 of this title, all agencies shall comply with the provisions of Article I and Article II of the Administrative Procedures Act. 2 Title 75 O.S. 2011 §250.3 see page 4, infra. 3 State ex rel. Protective Health Services State Dept. of Health v. Vaughn, 2009 OK 61, ¶5, fn. 10, 222 P.3d 1058. 4 Title 75 O.S. 2011 §309 provides: A. In an individual proceeding, all parties shall be afforded an opportunity for hearing after reasonable notice. B. The notice shall include: 1. A statement of the time, place and nature of the hearing; 2. A statement of the legal authority and jurisdiction under which the hearing is to be held; 3. A reference to the particular sections of the statutes and rules involved; and 4. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished. C. Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved. D. Deliberations by administrative heads, hearing examiners, and other persons authorized by law may be held in executive session pursuant to paragraph 8 of subsection B of Section 307 of Title 25 of the Oklahoma Statutes. E. Unless precluded by law, informal disposition may be made of any individual proceeding by stipulation, agreed settlement, consent order, or default. F. The record in an individual proceeding shall include: 1. All pleadings, motions and intermediate rulings; 2. Evidence received or considered at the individual proceeding; 3. A statement of matters officially noticed; 4. Questions and offers of proof, objections, and rulings thereon; 5. Proposed findings and exceptions; 6. Any decision, opinion, or report by the officer presiding at the hearing; and 7. All other evidence or data submitted to the hearing examiner or administrative head in connection with their consideration of the case provided all parties have had access to such evidence. G. Oral proceedings shall be electronically recorded. Such recordings shall be maintained for such time so as to protect the record through judicial review. Copies of the recordings shall be provided by the agency at the request of any party to the proceeding. Costs of transcription of the recordings shall be borne by the party requesting the transcription. For judicial review, electronic recordings of an individual proceeding, as certified by the agency, may be submitted to the reviewing court by the agency as part of the record of the proceedings under review without transcription unless otherwise required to be transcribed by the reviewing court. In such case, the expense of transcriptions shall be taxed and assessed against the nonprevailing party. Parties to any proceeding may have the proceedings transcribed by a court reporter at their own expense. H. Findings of fact shall be based exclusively on the evidence received and on matters officially noticed in the individual proceeding unless otherwise agreed upon by the parties on the record. 5 Oklahoma Dept. of Public Safety v. McCrady, 2007 OK 39, 176 P.3d 1194. [An agency order is subject to reversal if an appealing party's substantial rights were prejudiced because the agency's findings, inferences, conclusions, or decisions were entered in excess of its statutory authority or jurisdiction, were arbitrary or capricious, or were clearly erroneous in view of the reliable, material, probative, and substantial competent evidence]. 6 Title 75 O.S. 2011 §318 provides: A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. 2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions. 3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review. B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court. 2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, naming as respondents only the agency, such other party or parties in the administrative proceeding as may be named by the petitioner or as otherwise may be allowed by law, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title. C. Copies of the petition shall be delivered in person or mailed, postage prepaid, to the agency and all other parties of record, and proof of such delivery or mailing shall be filed in the court within ten (10) days after the filing of the petition. Any party not named as a respondent in the petition is entitled to respond within ten (10) days of receipt of service. The court, in its discretion, may permit other interested persons to intervene. D. In any proceedings for review brought by a party aggrieved by a final agency order: 1. The agency whose final agency order was made subject to review may be entitled to recover against such aggrieved party any court costs, witness fees and reasonable attorney fees if the court determines that the proceeding brought by the party is frivolous or was brought to delay the effect of said final agency order. 2. The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous. 7 Title 75 O.S. 2011 §250.4(B)(12), see page 4, supra. 8 The due process clauses of the United States and the Oklahoma Constitutions provide that certain substantive rights - life, liberty and property - cannot be deprived except by constitutionally adequate procedures. DuLaney v. Okla. State Dept. of Health, 1993 OK 113, ¶10, 868 P.2d 676. U.S. Const. amend. 14, § 1 provides in pertinent part: ". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Okla. Const. art. 2, § 7 provides: "No person shall be deprived of life, liberty, or property, without due process of law." Once it is determined that due process applies, the question becomes what process is due. Here, the inquiry is answered by 75 O.S. 2011 §250.4(B)(12), page 4, supra which requires notice, hearing, and anything else required by law. In Van Horn Oil Co. v. Okla. Corp. Com'n, 1988 OK 42, ¶8, 753 P.2d 1359, the Court stated: Procedural due process of law contemplates a fair and open hearing before a legally constituted court or other authority with notice and an opportunity to present evidence and argument, representation by counsel, if desired, and information concerning the claims of the opposing party with reasonable opportunity to controvert them. 9 Title 75 O.S. 2011 §318, see note 6, supra. 10 A quasi-judicial duty is one lying in the judgment or discretion of an officer other than a judicial officer. Gray v. Board of County Commissioners, 1975 OK 152, ¶5, 312 P.2d 959. The Board of Regents for a University has been recognized to act in a quasi-judicial capacity. Churchill v. University of Colorado at Boulder, 2012 CO 54, ¶2, 285 P.3d 986 (Colo. 2012); Miklosy v. Regents of University of California, 44 Cal. 4th 876, 188 P.3d 629, 636, 80 Cal. Rptr. 3d 690 (Calf. 2008). Cherry v. Board of Regents of University of State of New York, 289 N.W. 148, 44 N.E.2d 405 (N.Y. 1942). A private university disciplinary board as been recognized as quasi-judicial. Rom v. Fairfield University, 2006 WL 390448 (Conn. Supp. 2006). Even prison disciplinary committees have been considered quasi-judicial. Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985). As have disciplinary proceedings for teachers. Smith v. New York City Dept. of Edu., 808 F. Supp. 2d 569,(U.S.S.D. N.Y. 2011); Mills v. Western Washington Univ. 170 Wash. 2d 903, 246 P.3d 1254 (2011). Some high school disciplinary proceedings have been determined to be quasi-judicial in nature. Pangle v. Bend-Lapine School Dist., 169 Or. App. 376, 10 P.3d 275 (2000). Others have not. Betts v. Board of Ed. of City of Chicago, 466 F.2d 629 (C.A. 7th 1972). The corporation commission, the industrial commission, and board of adjustment have all been recognized as acting in an adjudicative capacity as the functional analogue of a court of record with dispute resolution authority. Van Horn Oil Co. v. Okla. Corp. Com'n, see note 8, supra at ¶12 ; Special Indem. Fund v. Quinalty, 1949 OK 17, ¶5, 203 P.2d 713; Torrance v. Bladel, 1945 OK 41, ¶0 155 P.2d 546. See also, the following cases in which administrative proceedings are conducted in a quasi-judicial capacity. Baumgardner v. State ex rel. Dept. of Human Services, 1990 OK 24, ¶¶6-10, 789 P.2d 235 [Ethics and Merit Commission]; Jackson v. Indep. Sch. Dist. No. 16 of Payne Co., 1982 OK 74, ¶¶10-11, 648 P.2d 26 [School Board]; Brown v. Banking Bd, 1978 OK 75, ¶32, 579 P.2d 1267 [Banking Board]; Board of Examiners of Veterinary Medicine v. Mohr, 1971 OK 64, ¶13, 485 P.2d 235 [Vet. Med. Bd.]; State of Oklahoma ex rel. Oklahoma State Board of Embalmers etc. v. Guardian Funeral Home, 1967 OK 141, ¶24, 429 P.2d 732 [Bd. of Embalmers]; Oklahoma Insp. Bureau v. State Bd for Property & Cas. Rates, 1965 OK 147, ¶0, 406 P.2d 458 [Property & Casualty Rates Bd.]. 11 Title 75 O.S. 2011 §250.4(B)(12), page 4, supra. 12 See discussion note 10, supra.

4285b5dd-a76e-4649-95e1-c3014f86cf82

Howard v. Zimmer, Inc.

oklahoma

Oklahoma Supreme Court

HOWARD v. ZIMMER, INC.2013 OK 17Case Number: 110857Decided: 03/19/2013THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. BRIAN C. HOWARD, M.D.; SUZANNE HOWARD, Plaintiffs/Appellants,v.ZIMMER, INC., Defendant/Appellee,andSULZER ORTHOPEDICS, INC.; SULZER MEDICA USA HOLDING CO.; SULZER MEDICA USA, INC., Defendants. Certified Question of Lawfrom the United States Court of Appealsfor the Tenth Circuit. ¶0 The United States Court of Appeals for the Tenth Circuit certified a single question under the Revised Uniform Certified Questions of Law Act, 20 O.S. 2011 §1601, et seq. Having reformulated the inquiry, we address a single first impression question: "Whether 21 U.S.C. §337 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §301 et seq., providing that all violations of the Act shall be prosecuted in the name of the United States, prohibits Oklahoma from recognizing a claim for negligence per se based on violation of a federal regulation under the Medical Device Amendments (MDA) to the FDCA?" We answer the single reformulated first impression question, "no." CERTIFIED QUESTION ANSWERED. Timothy G. Best, Matthew B. Free, BEST & SHARP, Tulsa, Oklahoma, for Plaintiffs/Appellants.Michael F. Smith, Thomas Steichen, McAffee & Taft, Tulsa, Oklahoma, for Defendant/Appellee.David W. Brooks, William F. Northrip, Shook, Hardy & Bacon L.L.P., Kansas City, Missouri WATT, J.: ¶1 The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) certified a single question of first impression to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §1601, et seq. We are not asked whether the negligence claim is preempted by federal law as the Tenth Circuit has resolved that preemption analysis has no place in the cause. Rather, we were requested to address a related, first impression question.1 The reformulated, first impression question we address is dispositive. It asks: "Whether 21 U.S.C. 3372 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §301 et seq., providing that all violations of the Act shall be prosecuted in the name of the United States, prohibits Oklahoma from recognizing a claim for negligence per se3 based on violation of a federal regulation under the Medical Device Amendments (MDA) to the FDCA?"4 The question is answered in the negative. CERTIFIED FACTS5 AND PROCEDURAL BACKGROUND ¶2 The plaintiff/appellant, Brian C. Howard, M.D. (Howard/patient), received a knee replacement manufactured by the defendant, Sulzer Orthopedics, Inc. (Sulzer/manufacturer).6 The implant failed and had to be removed allegedly because it did not bond to Howard's bone. Howard asserted that the implant was unsuccessful because Sulzer left oily residue on the implant in violation of federal regulations. ¶3 The long and tortured litigation trail began in this case in 2002 in the Northern District of Oklahoma. However, because the Howards' complaint was one of many concerning Sulzer implants, the Judicial Panel on Multi-District Litigation consolidated the cases in the Northern District of Ohio. Sulzer entered into a settlement agreement with patients receiving implants the manufacturer identified as having undergone a cleaning process which left lubricating machine oil on the implants. However, Howard's case was excluded from the settlement because his device was not in the lot Sulzer identified as being cleaned inappropriately. ¶4 Initially, the Ohio district court refused to dismiss Howard's negligence per se claim. Thereafter, Sulzer filed a summary judgment motion alleging that the negligence claim was preempted based on the implant's Pre-Market Approval (PMA) application. A PMA prescribes the manufacturer's obligations in manufacturing and distributing the device. Sulzer contended that Howard's device met all the prescribed standards. Nevertheless, Howard argued that the PMA also required Sulzer to follow the more general Good Manufacturing Practices (GMPs) incorporated in the PMA. GMPs are FDCA regulations based upon manufacturing standards that apply to all FDCA-regulated medical devices.7 Among other things, they require a process to remove manufacturing materials like lubricating oil. The district court disagreed. It granted Sulzer summary judgment on grounds that Howard's claims were preempted and denied a motion to transfer the cause back to the Northern District of Oklahoma. ¶5 The Howards appealed the dismissal of their negligence per se claim to the Sixth Circuit. They argued that 21 C.F.R. §820.70(h),8 providing for the removal or limiting of manufacturing material to ensure a medical device's quality would not be affected, established a GMP requiring the removal of all manufacturing oil from the knee implant. Sulzer argued that the negligence per se claim was preempted, because the GMP only required that a process be in place to remove the oil, not that the oil actually be removed from the implant. Alternatively, the manufacturer insisted that any claim relying exclusively on violation of the FDCA or MDA to establish a breach of duty was impliedly preempted. In an unpublished opinion,9 the Sixth Circuit held that the negligence per se claim for good manufacturing practices violations was not preempted. It determined that the GMPs required Sulzer to actually remove the machine oil from the implant rather than to merely have a process for removal in place. ¶6 On remand, the cause was transferred back to the Northern District of Oklahoma where Sulzer renewed its motion for summary judgment. The manufacturer argued that the non-preempted claim for negligence per se was not cognizable under Oklahoma state law. The district court agreed, dismissing the cause. ¶7 The Howards appealed to the United States Court of Appeals for the Tenth Circuit (Tenth Circuit). The Tenth Circuit certified a single question of first impression to this Court on July 9, 2012 pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§1601, et seq. We set a briefing cycle which was concluded with the filing of the patient's response brief on August 3, 2012. REGULATORY BACKGROUND ¶8 The Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §301 et seq., requires Federal Drug Administration (FDA) approval for the introduction of new drugs into the market. The introduction of new medical devices into the stream of commerce is governed by the Medical Device Amendments of 1976 (MDA), 21 U.S.C. §360c et seq.10 The MDA was enacted to provide for the safety and effectiveness of medical devices intended for human use. It covers three classes of medical devices. Class I devices are those that present no unreasonable risk of illness or injury and therefore require only general manufacturing controls. Class II devices are those possessing a greater potential of dangerousness and thus warrant more stringent controls. Class III devises, such as knee replacements, present a potential for unreasonable risk of illness or injury and incur the FDA's strictest regulation.11 ¶9 Class III devices must complete a thorough review process before they may be marketed. Pre-Market Approval (PMA) applications must be submitted and approved before medical devices may be distributed. A PMA prescribes the manufacturer's obligations in manufacturing and distributing the device. It is focused on safety, requiring that a device be made with almost no deviations from the specifications in its approval application.12 Good Manufacturing Practices (GMPs) may be incorporated in the PMA. These practices are FDA regulations based upon manufacturing standards that apply to all FDA-regulated medical devices.13 Title 21 C.F.R. 820.70(h) is the GMP at issue in this cause. It requires manufacturers to establish procedures for removing or limiting manufacturing materials from medical devices to the extent that the material adversely affects the device's quality.14 ¶10 Oklahoma law allows private individualsto maintain a parallel claim for negligence per sebased on violation of a federal regulationwhose enforcement lies with a governmental entity. ¶11 a) Federal regulations may form the basisof a negligence per se claim under Oklahoma law. ¶12 Howard asserts that Oklahoma law will allow a claim for negligence per se to proceed based on the violation of a federal regulation. The patient contends that such a position is supported by a recent opinion promulgated by this Court. Sulzer argues that federal regulations are not the type of law which should give rise to negligence per se claims. The manufacturer also insists that recognizing such a claim would contravene legislative intent where no clear standard of conduct is outlined. We are not persuaded by Sulzer's arguments. ¶13 The negligence per se doctrine is employed to substitute statutory standards for parallel common law, reasonable care duties. When courts adopt statutory standards for causes of action for negligence, the statute's violation constitutes negligence per se.15 To establish negligence per se, the plaintiff must demonstrate the claimed injury was caused by the violation, and was of the type intended to be prevented by the statute. Finally, the injured party must be one of the class intended to be protected by the statute.16 Liability per se enables plaintiffs to establish as a matter of law that the defendant's conduct constituted a breach of duty in a negligence action, so that only causation and damages need be proven.17 The question of whether a causal connection exists between the violation of the regulation here and Sulzer's actions and whether those violations were negligence per se, is for the trier of fact.18 ¶14 Approximately six months before the instant question was certified to this Court, we issued an opinion in Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705. One of the issues presented in Covel was whether the negligence per se instruction should have been given. The instruction provided that: . . . [I]n addition to the duty to exercise ordinary care there are also duties imposed by statute, and that if they found that a person violated any one of the following statutes or federal regulations, and that the violation was the direct cause of the injury, then such violation in and of itself would make such person negligent. . . . [Bold added. Italics in original.] The instruction given in the cause contained references to federal motor carrier safety regulations. In Covel, we determined that there was no prejudicial misstatement of law and no fundamental error in the instructions given on negligence per se. Such a position was adopted as early as 1984 in Woodis v. OG&E Co., 1985 OK 62, 704 P.2d 483 when the Court determined that violation of a national safety electric code constituted negligence per se. ¶15 We have long recognized that validly promulgated and executed regulations have the full force and effect of law19 as do administrative rules which are binding expressions of lawmaking powers.20 These rules and regulations, enacted by administrative agencies and boards pursuant to the powers delegated to them, are highly material and relevant to the issue of the applicable standard of care and its alleged breach.21 ¶16 The Court of Civil Appeals has held in three cases that federal regulations would not support a claim for negligence per se. In Claborn v. Plains Cotton Cooperative Ass'n, 2009 OK CIV APP 39, 211 P.3d 915, the appellate court held that the cooperative could not be held negligent per se for a violation of the Occupational Safety and Health Administration (OSHA) regulation where the relationship of employee/employer did not exist with the plaintiff. It did so on grounds that the plain language of OSHA regulations at issue directed employers to act in certain ways to protect employees. Similar reasoning was in the works in Rosson v. Coburn, 1994 OK CIV APP 25, 876 P.2d 731 wherein the Court of Civil Appeals refused to acknowledge a claim based on negligence per se when a physician allegedly violated Medicaid statutes by receiving Medicaid funding for performing a sterilization procedure on an underage female. In that instance, it was determined that the Medicaid statutes did not afford protection to individuals but merely established a national policy prohibiting sterilization of those under the age of twenty-one (21) years. In Christian v. First Capital Bank, 2006 OK CIV APP 128, 147 P.3d 908, the appellate court determined that a federal regulation regarding interest on agricultural loans did not provide customers with a cause of action against their bank. ¶17 Claborn, Rossen, and Christian do not bear the imprimatur of this Court. At best, they are of only persuasive value.22 Each of the opinions appears to be factually distinct from this cause. Nevertheless, to the extent that any or all of these opinions conflict with our holding herein that violation of a federal regulatory scheme will support a claim of negligence per se, they are expressly overruled. ¶18 b) The existence of a provision in federal lawproviding that all enforcement proceedings"shall be by and in the name of the United States"does not prohibit a state law claim for negligence per sebased on violation of the federal regulation. ¶19 Sulzer argues that because the FDCA regulations relating to medical devices do not contain a provision allowing private individuals to bring tort claims for their enforcement, they cannot support a negligence per se claim. The manufacturer insists that recognizing such a claim would be contrary to expressed legislative intent providing that "all such proceedings for the enforcement, or to restrain violations . . . shall be by and in the name of the United States." [Emphasis supplied.]23 We agree that, pursuant to Oklahoma jurisprudence, the mandatory language24 of the statute requires that all actions for enforcement be maintained by the federal government.25 On first blush it would appear that Sulzer's arguments have merit. Nevertheless, Howard's assertion that the lack of a provision allowing private enforcement is irrelevant to his negligence per se claim arising from the alleged violation of the GMP warrants a closer look. The patient contends that he does not seek to enforce the federal statute but to base his theory of recovery on Sulzer's failure to follow the federal regulation requiring the removal of manufacturing materials from his knee implant prior to its having been placed in his body. We find the patient's contentions persuasive. ¶20 We refused to recognize a private right of action for the prosecution of a consumer protection claim in Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960. In so doing, the Court was particularly impressed with the legislative language placing the power to seek redress of the Oklahoma Consumer Protection Act (Consumer Protection Act), 15 O.S. 2011 §751, et. seq., in the hands of the Attorney General or a district attorney. Subsequently, the Legislature amended subsection A of §761.1 to give a private right of action for damages to aggrieved consumers.26 ¶21 We took a second look at the Consumer Protection Act in Walls v. American Tobacco Co., 2000 OK 66, 11 P.3d 626 when smokers attempted to sue cigarette manufactures for civil penalties under subsection C of §761.1, amended in 1994, providing for the collection of civil penalties of not more than ten thousand dollars ($10,000.00) per violation of the consumer protection act. The Court took the position that the smokers could not collect the penalties for violation provided therein because of the express legislative language of the section. It provided that "[for] the purposes of this section, the district court issuing an injunction shall retain jurisdiction, and in such cases, the Attorney General, acting in the name of the state, or the district attorney may petition for the recovery of civil penalties."27 ¶22 In State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶80, 264 P.3d 1197, we refused to allow an individual to proceed in a common-law version of qui tam action to compel the prosecution of alleged professional misconduct and an investigation of the Bar Association. In so doing, the Court relied upon Bass Angler Sportsman Soc. v. United States Steel Corp., 324 F. Supp. 412 (S.D.Ala. 1971), aff'd, 447 F.2d 1304 (5th Cir. 1971) quoting the principle that: [E]ven where some statutory language seems to grant a private right of action, if the same or a related statute also clearly places enforcement in the hands of governmental authorities the right of action is exclusively vested in such governmental authority. [Emphasis provided.] ¶23 The cases discussed herein are not the only causes in which we have determined that where a statute expressly places the right of prosecution in a public entity, there can be no intent to create a private right of action.28 Nevertheless, in each of these cases, the plaintiff sought to obtain recovery through enforcement of the particular regulatory scheme. ¶24 The language of 21 U.S.C. §337 provides that all actions to enforce violations of the FDCA "shall be by and in the name of the United States." There is little question that, under this Court's jurisprudence, Howard would have no authority to bring an enforcement action based on the violation of a federal regulation promulgated under the FDCA. Nevertheless, while Howard seeks to show violation of 21 C.F.R. §820.70(h),29 i.e. requiring removal of manufacturing materials from his implant, he does not claim that he should be entitled to bring a private action under the FDCA. ¶25 The United States Supreme Court determined in Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S. Ct. 999, 169 L. Ed. 2d 892 (2008), that the MDA would pre-empt a jury determination that the FDA-approved labeling for a pacemaker violated a state common-law requirement for additional warnings. It did so based on grounds that such a requirement would be "different from, or in addition to" the federal requirements imposed for medical device labeling. However, the Supreme Court also acknowledged that the Medical Device Amendments to the FDCA, allowing for such preemption, would not prevent a state from providing a damages remedy for claims premised on violation of FDCA regulations. The high court did so in recognition that such state duties parallel, rather than add to, federal requirements. ¶26 The situation described in Medtronic as a "parallel claim" which should be allowed to proceed is precisely the situation presented here.30 Howard does not seek, in filing his action based on negligence per se, to hold Sulzer to some new or higher requirement not anticipated by federal law. Rather, the patient's claim is based on allegations that the manufacturer did not follow the GMP requiring the removal or limiting of manufacturing materials to the extent the material would not adversely affect the device's quality.31 ¶27 The United States Court of Appeals for the Sixth Circuit (Sixth Circuit) would have allowed the patient's suit to proceed. In an unpublished opinion, it held that Howard's negligence per se claim was not preempted by the amendments to the FDCA.32 Other courts have taken similar stances allowing private tort claims alleging FDCA violations to proceed. In Alen v. Delchamps, Inc., 724 So. 2d 1065 (Ala. 1993), the court agreed that there is no private cause of action for civil damages under the FDCA. However, it concluded that the plaintiffs were not suing directly under the FDCA or its accompanying regulations. Rather, the court perceived that the plaintiffs relied on the regulations to establish a duty or standard of care. Therefore, the Alabama court determined that summary judgment could not be supported on the basis that the FDCA provided no private cause of action for damages. ¶28 The Seventh Circuit Court of Appeals held that, to the degree tort claims could be construed to allege that a defendant failed to meet the standards set forth in the government's approval process, the claims were not pre-empted. It reasoned that a state judgment premised on the truth of the allegations, set up no requirement different from or in addition to those established by the FDCA.33 ¶29 Although the federal court found a lack of evidence to support a prima facie case for the patients' claims in Valente v. Sofamore, SNC, 48 F. Supp. 2d 862 (E.D.Wis. 1999), it analyzed the claim of negligence per se in light of the Supreme Court's decision in Medtronic v. Lohr, 518 U.S. 476, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1966). Lohr held that a claim that the defendants violated FDCA regulations was not preempted by the MDA. In its analysis, the federal court quoted the Supreme Court's reasoning that "the presence of a damages remedy does not amount to the additional or different 'requirement' that is necessary under the statute; rather, it merely provides another reason for manufacturers to comply with existing 'requirements' under federal law." The Valente court concluded that Congress intended to impose liability on FDCA violators through state common law claims when such claims parallel federal requirements as in an action for negligence per se. Furthermore, relying on the Supreme Court's pronouncements in Lohr, the federal court noted that Congress clearly intended that the MDA was enacted to protect the safety of those who use medical devices, inferring intent that the statute be used as a basis for civil liability under state common law. Finally, the federal court opined that, if causation could be shown, a negligence per se claim would lie against the defendants. ¶30 There is no unanimity in the courts which have addressed the issue of whether negligence per se claims should be allowed to proceed under the FDCA. This is demonstrated by the federal district court's ruling herein in which the Northern District determined that we would not acknowledge Howard's negligence per se claim because he was not a member of the class intended to be protected by the federal regulations.34 While a substantial number of jurisdictions allow claims based on the violation of federal requirements denoted as "parallel claims,"35 others determine that even those claims are preempted.36 Nevertheless, even courts recognizing that no private cause of action for civil damages exists under the FDCA, allow private actions where parties rely on the regulations themselves to establish a duty or standard of care.37 ¶31 We align ourselves with those jurisdictions which would allow a negligence per se claim to proceed.38 This Court acknowledges the distinction between attempting to enforce a federal regulation and allowing a parallel claim for negligence per se bottomed on violation of the regulation. Such claims have been blessed by the United States Supreme Court in Riegel v. Medtronic, Inc.39 and Medtronic v. Lohr40 distinguishing between attempts to enforce a federal regulation and reliance on the violation of such rules to bring a parallel claim. RESPONSE TO DISSENT ¶32 The dissent begins by doing what it criticizes the majority for having done: crafting the question certified to answer the issues it perceives will reach the result it prefers. ¶33 More exploration is required of the dissent's insistence that the purpose of the federal regulation at issue here is merely a "record keeping" function and asserts that the regulation is too "vague" to serve as a basis for a negligence per se claim. When faced with arguments similar to those championed by the dissent as to the purpose of the Medical Devices Act, the Seventh Circuit Court of Appeals relied on the Sixth Circuit's rejection of such an argument in this very case.41 In Bausch v. Stryker Corp., 630 F.3d 546 (7th Cir. 2010), the appellate court stated in pertinent part: Like the Sixth Circuit in Howard, we do not see a sound legal basis for defendants' proposal to distinguish between general requirements and "concrete, device-specific" requirements. . . . [F]ederal law is clear: for manufacturers of Class III medical devices, the Quality System Regulations and Current Good Manufacturing Practices adopted by the FDA under its delegated regulatory authority are legally binding requirements . . . "The failure to comply with any applicable provision in this part [of the regulations] renders a device adulterated under section 501(h) of the act. Such a device, as well as any person responsible for the failure to comply, is subject to regulatory action. . . ." [Emphasis supplied.] Defendants' proposed distinction between concrete, product-specific requirements and more general requirements would also leave injured patients without any remedy for a wide range of harmful violations of federal law. The FDA regulations contain many requirements that are not concrete or product-specific, yet which are obviously vital to producing safe and effective medical devices. For example, the regulations require each manufacturer to "establish and maintain procedures to prevent contamination of equipment or product by substances that could reasonably be expected to have an adverse effect on product quality," 21 C.F.R. §820.70(e), and to "establish and maintain procedures for the use and removal" of manufacturing material (such as lubricants or abrasives, or cleaning and disinfectant agents) "to ensure that it is removed or limited to an amount that does not adversely affect the device's quality." 21 C.F.R. §820.70(h). If a patient were harmed by an implanted hip replacement system that was contaminated, for example, by a production worker's blood or mucus or by a lubricant or abrasive that caused an infection after implantation, that contamination would present a substantial claim for violating requirements that are not "concrete" and "product-specific," yet which surely are essential for the manufacture of safe and effective medical devices for implantation in the human body. [Emphasis provided.] ¶34 Most concerning is that the dissent seeks to be the "fact finder," a function which lies at the trial level and not with this Court. It would determine that Howard's reliance on the federal regulation is too tenuous to convince a reasonable person that the manufacturer's failure to properly follow the federal regulation at issue caused his injury. This is not the role of an appellate court. Even recognizing that there is a possibility that a jury deciding the common law claim might apply requirements more stringently than the FDA intended, the Seventh Circuit refused to engage in a question that it found to present a "slippery slope" of whether a distinction could be drawn under the federal regulation between "concrete" and "product-specific requirements." Instead, it left those fact issues where we have done, in the realm of the fact-finder who will determine whether there was a violation which would support an award, something upon which we expressly refuse to comment or speculate. CONCLUSION ¶35 Our determination that Howard should be allowed to utilize a negligence per se claim based upon violation of the federal regulation does not guarantee recovery of damages. Instead, we emphasize that negligence per se does not equate to liability per se. Simply because the law may presume negligence from a person's violation of the federal regulation does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted.42 Here, to prevail on a claim for negligence per se, the patient must not only demonstrate violation of the regulation but also that the violation caused his injury along with the extent to which the injury may support an award of damages.43 CERTIFIED QUESTION ANSWERED. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, JJ. - CONCUR WINCHESTER, TAYLOR, GURICH, JJ. - DISSENT FOOTNOTES 1 As originally certified, the question provides: "Does Oklahoma recognize a claim for negligence per se based on an alleged violation of 21 C.F.R. §820.70(h), a federal regulation promulgated pursuant to the Medical Device Amendments to the Food, Drug, and Cosmetic Act, even though those enactments do not allow private rights of action?" Certification of Question of State Law, filed on July 9, 2012, providing in pertinent part at p. 7: ". . . [W]e conclude that the law of the case prevents us from reconsidering the implied-preemption question. . . . Having resolved that preemption analysis no longer has any place in this case, we turn to Oklahoma state law. . . ." Even if the preemption issue were before us, we likely would have taken the same position as that of Sixth Circuit, i.e. the Howards' claim would be allowed to go forward. The negligence per se claim is based on allegations that Sulzer did not clean the implant in accordance with the federal regulatory requirements. The United States Supreme Court has made it clear that state requirements are pre-empted only to the extent that they are different from, or in addition to the requirements imposed by federal law. States are not prevented from providing a damages remedy for claims premised on a violation of federal regulations. Riegel v. Medtronic, Inc., see note 10, infra; Medtronic v. Lohr, see note 10, infra. 2 Title 21 U.S.C. §337 providing in pertinent part: "(a) Except as provided in subsection (b) of this section, all such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States. . . ." Subsection (b) allows states to bring actions in their own names for civil enforcement of the statute in certain instances. 3 The negligence per se doctrine is employed to substitute statutory standards for parallel common law, reasonable care duties. When courts adopt statutory standards for causes of action for negligence, the statute's violation constitutes negligence per se. Busby v. Quail Creek Golf & Country Club, 1994 OK 63, ¶6, 885 P.2d 1326. To establish negligence per se, the plaintiff must demonstrate the claimed injury was caused by the violation, and was of the type intended to be prevented by the statute. Finally, the injured party must be one of the class intended to be protected by the statute. Lockhart v. Loosen, 1997 OK 103, ¶9, 943 P.2d 1074; Hamilton v. Allen, 1993 OK 46, ¶9, 852 P.2d 697; Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, ¶8, 813 P.2d 508. Liability per se enables plaintiffs to establish as a matter of law that the defendant's conduct constituted a breach of duty in a negligence action, so that only causation and damages need be proved. In re: Orthopedic Bone Screw Products Liability Litigation, see note 36, infra; In re TMI, 67 F.3d 1103 (3rd Cir. 1995), cert. denied, 516 U.S. 1154, 116 S.C. 1034, 134 L. Ed. 2d 111 (1996). The question of whether a causal connection exists between the violation of the regulation here and Sulzer's actions and whether those violations were negligence per se, is for the trier of fact. Jones v. Oklahoma Natural Gas Co., 1994 OK 89, ¶¶17-18, 894 P.2d 415. See also, Busby v. Quail Creek Golf & Country Club, this note, supra. 4 The federal regulation at issue is 21 C.F.R. §820.70(h) providing: "Manufacturing material. Where a manufacturing material could reasonably be expected to have an adverse effect on product quality, the manufacturer shall establish and maintain procedures for the use and removal of such manufacturing material to ensure that it is removed or limited to an amount that does not adversely affect the device's quality. The removal or reduction of such manufacturing material shall be documented." 5 In answering a certified question, the Court does not presume facts outside those offered by the certification order. In re Harris, 2002 OK 35, ¶4, 49 P.3d 710; Jones v. University of Central Oklahoma, 1995 OK 138, ¶5, 910 P.2d 987. Although we will neither add nor delete such facts, we may consider uncontested facts supported by the record. McQueen, Rains, & Tresch, LLP v. CITGO Petroleum Corp., 2008 OK 66, fn. 4, 195 P.3d 35; In re Harris, this note, supra. 6 We refer to "Sulzer" as the manufacturer, as did the federal court, because that name had been utilized throughout the litigation. The parties are aware that Zimmer, Inc., is the proper defendant/appellee in the cause. Certification of Question of Law, filed with this Court on July 9, 2012. 7 See generally, 21 C.F.R. §820. 8 21 C.F.R. §820.70(h), see note 4, supra. 9 Howard v. Sulzer Orthopedics, Inc., 382 Fed.Appx. 436 (6th Cir. 2010). 10 Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S. Ct. 999, 169 L. Ed. 2d 892 (2008); Medtronic , Inc. v. Lohr, 518 U.S. 470, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). 11 Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 121 S. Ct. 1012, 148 L. Ed. 2d 854. 12 Riegel v. Medtronic, Inc., see note 10, supra. 13 Howard v. Sulzer Orthopedics, Inc., see note 9, infra. 14 Title 21 C.F.R. §820.70(h), see note 4, supra. 15 Busby v. Quail Creek Golf & Country Club, 1994 OK 63, ¶6, 885 P.2d 1326. 16 Lockhart v. Loosen, 1997 OK 103, ¶9, 943 P.2d 1074; Hamilton v. Allen, 1993 OK 46, ¶9,852 P.2d 697; Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, ¶9, 813 P.2d 508. 17 In re: Orthopedic Bone Screw Products Liability Litigation, see note 36, infra; In re TMI, 67 F.3d 1103 (3dCir. 1995). 18 Jones v. Oklahoma Natural Gas Co., 1994 OK 89, ¶0, 894 P.2d 415. See also, Busby v. Quail Creek Golf & Country Club, see note 15, supra. 19 Hoar v. Aetna Casualty & Surety Co., 1998 OK 95, ¶12, 968 P.2d 1219. 20 McClure v. ConocoPhillips Co., 2006 OK 42, ¶17, 142 P.3d 390; Cox v. Dawson, 1996 OK 11, ¶18, 911 P.2d 272. 21 Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, ¶14, 70 P.3d 811. 22 Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. 2011, Ch. 5, App. 1; 20 O.S. 2011 §§30.5 and 30.14. 23 Title 21 U.S.C. §337, see note 2, supra. 24 It is correct that the word "shall" is ordinarily interpreted as implying a command or mandate and that "may" generally denotes permissive or discretional authority, we have held that a directory rather than mandatory construction may be given to the work "shall" upon a finding of strongly persuasive contrary legislative intent. State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶62, 264 P.3d 1197; Woods Development Co. v. Meurer Abstract & Title Co., 1985 OK 106, ¶11, 712 P.3d 30. 25 We note that in Walls v. American Tobacco Co., 2000 OK 66, 11 P.3d 626 we determined that as long as the Oklahoma Consumer Protection Act contained no private right of action and a provision providing that the Attorney General, acting in the name of the state, or the district attorney had the authority to sue for a monetary award, individual plaintiffs could not maintain an action to recover. 26 Title 15 O.S. Supp. 1988 §761.1(A) providing in pertinent part: "The commission of any act or practice declared to be a violation of the Consumer Protection Act shall render the violator liable to the aggrieved consumer for the payment of actual damages sustained by the consumer and costs of litigation including reasonable attorney's fees, and the aggrieved consumer shall have a private right of action for damages . . ." 27 Title 15 O.S. Supp. 1994 §761.1(C) providing: "Any person who is found to be in violation of the Oklahoma Consumer Protection Act in a civil action or who willfully violates the terms of any injunction or court order issued pursuant to the Consumer Protection Act shall forfeit and pay a civil penalty of not more than Ten Thousand Dollars ($10,000.00) per violation, in addition to other penalties that may be imposed by the court, as the court shall deem necessary and proper. For the purposes of this section, the district court issuing an injunction shall retain jurisdiction, and in such cases, the Attorney General, acting in the name of the state, or a district attorney may petition for recovery of civil penalties." 28 See, Walker v. Chouteau Lime Co., Inc., 1993 OK 35, 849 P.2d 1085 [No private cause of action against insurer who violates provisions of Unfair Claim Settlement Practices Act where the power to regulate was expressly given to the Insurance Commissioner.]. 29 21 C.F.R. §820.70(h), see note 4, supra. 30 See, Medtronic, Inc. v. Lohr, see note 10, supra, providing that nothing denies states the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements. In Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S. Ct. 1788, 161 L. Ed. 2d 678 (2005), the Supreme Court explained that a state cause of action that seeks to enforce a federal requirement does not impose a requirement that is different from, or in addition to, requirements under federal law. See also, Bausch v. Stryker Corp., 630 F.3d 546 (7th Cir. 2010), cert. denied, ___ U.S. ___, 132 S. Ct. 498, 181 L.Ed.2d (2011) [FDCA did not preempt tort claims against medical device manufacturer because state tort duty breached was parallel to FDA regulations promulgated under the Act.]. 31 Title 21 C.F.R. §820.70(h), see note 4, supra. 32 Howard v. Sulzer Orthopedics, Inc., see note 9, supra. 33 Mitchell v. Collagen Corp., 146 F.3d 902 (7th Cir. 1997). 34 Howard v. Sulzer Orthopedics, Inc., 796 F. Supp. 2d 1305 (N.D.Okla. 2011). 35 Stengal v. Medtronic, Inc., ___ F.3d ___, 2013 WL 106144 (9th Cir. 2013) [MDA did not preempt failure to warn claim]; Bass v. Stryker Corp., 669 F.3d 501 (5th Cir. 2012) [MDA preempted negligence claims to extent they were premised on failure to warn, but negligent manufacturing claims survived.]; Hughes v. Boston Scientific Corp., 631 F.3d 762 (5th Cir. 2011) [Invoking negligence per claim to support state negligence claim parallel to federal requirements is not expressly or impliedly preempted.]; Bausch v. Stryker Corp., see note 30, supra [Patient's claims alleging that the medical device was "adulterated" were not impliedly preempted by MDA.); Ellis v. C.R. Bard, Inc., 311 F.3d 1272 (11th Cir. 2002) [Presuming Georgia law permits a claim for negligence per se for violation of the FDCA.]; Gomez v. Saint Jude Medical Daig Div. Inc., 442 F.3d 919 (5th Cir. 2006) [Claims not preempted to extent patient alleged that device was defectively manufactured because it did not comply with FDA-approved specifications.]; Talley v. Danek Med., Inc., 179 F.3d 154 (4th Cir. 1999) [In cause were negligence per se based on violation of the FDCA, liability in tort differs in that plaintiff must still show how statute dictates standard of care and prove other elements of negligence.]; White v. Stryker Corp., 818 F. Supp. 2d 1032 (W.D. Ky. 2011) [MDA does not preempt state-law claims premised on violation of FDA regulations.]; Orthopedic Equip. Co. v. Eutsler, 276 F.2d 455, 79 A.L.R.2d 390 (4th Cir. 1960) [Misbranding of surgical nail could be negligence per se under FDA statute prohibiting "misbranding."]; Rollins v. St. Jude Medical, 583 F. Supp. 2d 790 (WD. La. 2008) [State was not preempted from providing a damages remedy for claims premised on violation of FDA regulations.]; Prohaska v. Sofamor, S.N.C., 138 F. Supp. 2d 422 (W.D.N.Y. 2001) [ Cause of action exists under negligence per se when the underlying claim is for misbranding or otherwise illegally omitting product warnings required by FDCA.]; Valente v. Sofamor, S.N.C., 48 F. Supp. 2d 862 (E.D.Wis. 1999) [Would allow negligence per se claim if had evidential support of causation as negligence per se based on violation of FDCA regulation parallels federal requirements.]; Wutzke v. Schwaegler, 86 Wash. App. 898, 940 P.2d 1386 (1997), review denied, 134 Wash. 2d 1003, 953 P.2d 96 (1998) [PMA process established by FDCA did not establish additional or different requirements specific to medical devices, and thus were not preempted under MDA.]; Montoya v. Mentor Corp., 122 NM 2, 919 P.2d 410 [MDA to FDCA did not preempt common-law products liability claim against manufacturer where product was class III device.]. See also, Gelber v. Stryker Corp., 788 F. Supp. 2d 145 (S.D.N.Y. 2011) [Manufacturing defect claims were not prohibited by MDA where allegations included claim that hip replacement had excessive levels of manufacturing residue left on device but did not allow plaintiff's negligence claim to proceed.]; D. Frank-Jackson, "The Medical Device Federal Preemption Trilogy: Salvaging Due Process for Injured Patients," 35 S.IllU.L.J. 453 (2011) [Emphasizing that the failure to recognize a cause of action for individuals injured by Class III medical devices is "to blatantly ignore over a century of well-settled tort and procedural law precedence in favor of denying due process to those injured by hazardous devices."]; Federal Pre-emption of State Common-law Products Liability Claims Pertaining to Drugs, Medical Devices, and Other Health-Related Items, 98 A.L.R.Fed. 124 (1990). 36 In re: Medtronic, Inc., Sprint Fidelis Leads Products Liability Litigation, 623 F.3d 1200 (8th Cir. 2010) [MDA preempted patients' failure to warn, defective design, manufacturing defect, and breach of express warranty claims.]; Cupek v. Medtronic, Inc., 405 F.3d 421 (6th Cir. 2005), cert. denied, 546 U.S. 935, 126 S. Ct. 420, 163 L. Ed. 2d 320 (2005) [Negligence per se claim due to failure to comply with FDCA preempted.]; Kemp v. Medtronic, Inc., 231 F.3d 216 (6th Cir. 2000) [Negligence per se claims preempted under MDA.]; In re: Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781 (3rd Cir. 1999) [Allowing negligence per se action to go forward would undermine legislation indicating no private right of action should exist.]; Gross v. Stryker Corp., 858 F. Supp. 2d 466 (W.D.Penn. 2012) [Complaint failed to state parallel claim for negligence so as to avoid preemption.]; In re Trasylol Products Liability Litigation, 763 F. Supp. 2d 1312 (S.D.Fla. 2010) [Recognizing that mere congressional intent to preclude a private right of action would not necessarily indicate that Congress intended to preclude a state remedy under theory of negligence per se.]; Ilarraza v. Medtronic, Inc., 677 F. Supp. 2d 582 (E.D.N.Y. 2009) [Patient's claim of manufacturing defect of pain relief device preempted by MDA to FDCA.]; Kapps v. Biosense Webster, Inc., 813 F. Supp. 2d 1128 (D.Minn. 2011) [Negligence per se cannot be based on violation of the FDCA.]; Moore v. Sulzer Orthopedics, 337 F. Supp. 2d 1002 (2004) [MDA to the FDCA preempted plaintiff's action.]; Blinn v. Smith & Nephew Richards, Inc., 55 F. Supp. 2d 1353 (M.D.Fla. 1999) [No private cause of action for violations of FDCA.]; Mitaro v. Medtronic, Inc., 23 Misc.3d 1122(A), 886 N.Y.S.2d 71 (2009), aff'd, 900 N.Y.Supp.2d 899, 73 A.D.3d 1142 (2010) [Negligence per se claim preempted under statute providing that all proceedings to enforce or to restrain violations of the FDCA are brought by the United States.]; Osburn v. Danek Medical, Inc., 135 N.C.App. 234, 520 S.E.2d 88 (1999), review denied, 351 N.C. 359, 542 S.E.2d 215 (2000), aff'd, 352 N.C. 143, 530 S.E.2d 54 (2000) [Violation of FDA regulation or requirements does not create private right of action.]; Friedlander v. HMS-PEP Products, Inc., 226 Ga.App. 123, 485 S.E. 2nd 240 (1997) [All proceedings for enforcement must be brought by United States.]. See also, In re: Sulzer Orthopedics, 335 F. Supp. 2d 830 (N.D. Ohio 2004) [Elements of fraud claims insufficient to proceed under Oklahoma law.]; J. Beck and J. Valentine, "Challenging the Viability of FDCA-Based Causes of Action in the Tort Context: The Orthopedic Bone Screw Experience," 55 Food & Drug L.J. 389 (2000). 37 Allen v. Delchamps, Inc., 624 S.2d 1065 (Ala. 1993); Grove Fresh Distributors, Inc. v. Flavor Fresh Foods, Inc., 720 F. Supp. 714 (N.D.Ill. 1989). 38 This Court has adopted a three-part test for determining whether a private right of action may be implied from a regulatory statute. Pursuant to our opinion in Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960, the factors to be considered are whether: 1) the plaintiff is one of the class for whose especial benefit the statute was enacted; 2) there is some explicit or implicit legislative intent suggesting the desire to create a private remedy and not to deny one; and 3) implying a remedy for the plaintiff would be consistent with the underlying purposes of the legislative scheme. The opinions cited in fn. 36, supra, demonstrate that the federal regulation herein meets all three of Holbert's requirements. 39 See, ¶25, supra. 40 See, ¶29, supra. 41 Bausch v. Stryker Corp., 630 F.3d 646 (7th Cir. 2010) providing in pertinent part: ". . . The Sixth Circuit has rejected this approach. See Howard, 382 Fed.Appx. At 440 (reversing summary judgment on preemption grounds, concluding that the Current Good Manufacturing Practices are 'not so vague as to be incapable of enforcement.'). . . ." 42 Graham v. American Cyanamid Co., 350 F.3d 496 (6th Cir. 2003), cert. denied, 541 U.S. 990, 124 S. Ct. 2040, 158 L. Ed. 2d 495 (2004). 43 Ohio Casualty Ins. Co. v. Todd, 1991 OK 54, ¶9, 813 P.2d 508; Hampton v. Hammons, 1987 OK 77, ¶12, 743 P.2d 1053. It has previously been determined that patients such as Howard were intended to be protected by the GMP at issue here. See, ¶29, supra. GURICH, J., with whom WINCHESTER, J. joins, dissenting: ¶1 The Tenth Circuit certified the following question to this Court: Does Oklahoma recognize a claim for negligence per se based on an alleged violation of 21 C.F.R. § 820.70(h), a federal regulation promulgated pursuant to the Medical Device Amendments to the Food, Drug, and Cosmetic Act, even though those enactments do not allow private rights of action? In explaining its reasons for certifying this question, the Tenth Circuit pointed to three areas where Oklahoma law appears to be ambiguous: 1) Does Oklahoma law allow a claim for negligence per se based on an alleged violation of a federal regulation rather than a statute? 2) Does Oklahoma law bar a claim for negligence per se when the statute in question lacks a private right of action? and 3) Is 21 C.F.R. § 820.70(h) too ambiguous, under Oklahoma law, to support a claim for negligence per se? See Certification of Question of State Law, at 7-9 (July 3, 2012). ¶2 My interpretation of the certified question and my understanding of the issues presented by the Tenth Circuit leads me to the conclusion that Oklahoma law does not recognize a claim for negligence per se based on an alleged violation of 21 C.F.R. § 820.70(h) regardless of whether the Medical Device Amendments to the Food, Drug, and Cosmetic Act allow for a private right of action. Therefore, I must respectfully dissent from today's decision.1 ¶3 The Defendant correctly points out that this Court has never allowed a negligence per se claim to go forward solely on an alleged violation of a federal regulation.2 That's because this Court's negligence per se case law has developed primarily around violations of Oklahoma state statutes and municipal ordinances.3 The Plaintiff relies on Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705, and Woodis v. Oklahoma Gas and Electric Co., 1985 OK 62, 704 P.2d 483, to support his position that this Court has allowed negligence per se claims to go forward based on alleged violations of federal regulations. They do not. In Covel, the negligence per se claim was based on alleged violations of regulations under the Federal Motor Carrier Safety Administration4 and violations of the Oklahoma statutes addressing licensing standards and qualifications for commercial drivers.5 In Woodis, although the negligence per se claim was premised on a violation of the National Electrical Safety Code, the National Electrical Safety Code was adopted by the Oklahoma Corporation Commission by order. Woodis, 1985 OK 62, ¶ 16, 704 P.2d 483, 486 (citing Rotramel v. Public Service Co., 1975 OK 91, ¶ 5, 546 P.2d 1015, 1017). As such, noncompliance with the code was actually a violation of an order of the Oklahoma Corporation Commission, not a federal regulation.6 ¶4 I cannot join today's opinion because the holding is too broad. In my view, any expansion of the law in this area should be done narrowly and on a case-by-case basis and only when the Plaintiff can prove that he or she is within the class meant to be protected by the regulation and that his or her injury was meant to be prevented by the regulation. The facts of today's case certainly do not warrant an expansion of our negligence per se law. First, for a negligence per se instruction to be proper under Oklahoma law, the terms of a statute must impose objective standards. See Athey, 1991 OK 82, ¶ 8, 823 P.2d at 349. As the Sixth Circuit recognized, 21 C.F.R. § 820.70(h) is ambiguous because it isn't clear from the text of the regulation whether it "requires compliance with a validated cleaning process, or whether it also requires a specific result: namely, actual removal" of the machine oil.7 Even though the Sixth Circuit held that the regulation required Sulzer to actually remove the excess machine oil, the regulation does not impose sufficient objective standards to allow the negligence per se claim to go forward under Oklahoma law. This issue must be decided before analyzing whether the Plaintiff is within the class of persons meant to be protected by the regulation. In my view, the majority has not addressed this issue and the Tenth Circuit is free to address the issue when the case goes back. ¶5 Additionally, without any citation to authority or to the record, the Plaintiff asserts that "[t]he purpose of this requirement was to protect individuals who receive Sulzer's implants and was designed to prevent the very risks that occurred in this case--damage caused to Dr. Howard because of Sulzer's failure to remove such substances."8 The majority, in footnote 43, apparently agrees with the Plaintiff's broad, general assertions and finds that "patients such as Howard were intended to be protected by the GMP at issue here." The primary purpose of 21 C.F.R. § 820.70(h), and the GMP's generally, appears to be "recordkeeping." The Supporting Statement for Medical Devices: Current Good Manufacturing Practice, found on the FDA website, states as its justification: "The Food and Drug Administration (FDA) is requesting extension of approval for information collection requirements in 21 CFR Part 820."9 Rather than giving the Plaintiff a free pass on this issue, he should, on remand from the Tenth Circuit, be required to present some evidence or authority to the trial court that 21 C.F.R. § 820.70(h) was intended to protect a certain class of individuals of which he is included and that the regulation was intended to prevent a certain type of injury.10 ¶6 The holding in today's case is not limited to negligence per se claims based on the particular regulation at issue, 21 C.F.R. § 820.70(h). It is not even limited to negligence per claims based on federal regulations under the Food, Drug, and Cosmetic Act. Rather, today's holding is so broadly worded that it allows a plaintiff to allege negligence per se based on a violation of any federal regulation. With the thousands of federal regulations from the various federal agencies, an overly broad holding will inevitably lead to unanticipated results. The holding in this case should be limited to the facts disclosed. I respectfully dissent. FOOTNOTES 1 I see no reason to rely on cases such as Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), Mitchell v. Collagen Corp., 126 F.3d 902 (7th Cir. 1997), and Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), all of which are preemption cases that are not dispositive of the issue presented. Everyone agrees that the Sixth Circuit has already decided that the negligence per se claim is not preempted and that decision remains the settled law of the case. 2 The Court of Civil Appeals in two different cases implied that a federal regulation could provide the basis for a negligence per se claim. However, in both of those cases, the COCA found that the Plaintiffs did not fall within the class of persons meant to be protected by the regulations. As such, the negligence per se theories could not go forward. See Claborn v. Plains Cotton Co-Op Ass'n, 2009 OK CIV APP 39, ¶ 9, 211 P.3d 915, 919 (holding that because the plain language of the OSHA regulations at issue directed employers to act in certain ways to protect employees, the trial judge properly rejected the instruction because in that case, the Plaintiff was not an employee of the Defendant); Rosson v. Coburn, 1994 OK CIV APP 25, ¶ 28, 876 P.2d 731, 736 (rejecting a negligence per se argument based on violation of the Social Security Act and its implementing regulations because the purpose of the statutes and regulations was not to afford protection to any individuals). While these cases tend to support the majority's holding, the opinion overrules these cases to the extent they are inconsistent. 3 See, e.g., Cornwell v. Union Pacific R.R., 2010 WL 3521668 (determining whether Cornwell was negligent per se for failing to follow 47 O.S. 11-701(A)); Akin v. Mo. Pacific R.R. Co., 1998 OK 102, 977 P.2d 1040 (discussing the duty of a motorist approaching a grade crossing under 47 O.S. 1991 § 11-701(a)(1)); Lockhart v. Loosen, 1997 OK 103; 943 P.2d 1074 (finding a third party could not assert negligence per se based on violation of 63 O.S. 1991 § 1-519); Jones v. Okla. Natural Gas Co., 1994 OK 89, 894 P.2d 415 (holding that the question of negligence per se under 63 O.S. 1981 § 142.1 et seq., The Underground Facilities Damage Prevention Act, was a question of fact for the jury); Busby v. Quail Creek Golf and Country Club, 1994 OK 63, 885 P.2d 1326 (determining that violation of 37 O.S. 1991 § 241 could satisfy the negligence per se factors but that under proper facts a jury could find the violation excusable); Hamilton v. Allen, 1993 OK 46, 852 P.2d 697 (finding driver of vehicle was negligent per se under 47 O.S. 11-701(a)(1) and (2) for failing to stop, look, and listen); Athey v. Bingham, 1991 OK 82, 823 P.2d 347 (giving an instruction on unavoidable accident under 47 O.S. 1981 § 11-310(a) and 47 O.S. 1981 § 11-801(a) and (d) held not to be reversible error); Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, 813 P.2d 508 (finding a violation of 37 O.S. 1981 § 537(A)(2) did not amount to negligence per se under the facts); Hampton By and Through Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053 (finding material questions of fact on the issue of negligence per se under a Tulsa city ordinance); Boyles v. Okla. Natural Gas Co., 1980 OK 163, 619 P.2d 613 (finding that Plaintiff was within the class meant to be protected by the city ordinance concerned with injuries occasioned by gas explosions). 4 49 C.F.R. §§ 383.1; 383.113; 391.11; 391.31; 392.7. 5 47 O.S. §§ 11-311; 11-801(B)(2); 47 O.S. 2004 § 6-101. In Covel, in evaluating the jury instructions as a whole to determine whether there was reversible error, this Court held that there was no prejudicial misstatement of the law and no fundamental error in the instructions given on negligence per se. 2012 OK 5, ¶ 26, 272 P.3d 705, 716. 6 See also Myers v. Mo. Pacific R.R. Co., 2002 OK 60, ¶ 30, 52 P.3d 1014, 1029, where the Plaintiff challenged the trial court's refusal to instruct the jury on negligence per se in relation to the railroad's failure to comply with two statutes requiring a railroad to erect suitable signs of caution and requiring a railroad to maintain its crossings in good condition. This Court found the trial court's refusal to instruct on negligence per se correct. We found that the first statute would have placed before the jury an issue preempted by the Federal Railroad Safety Act and that the second statute was not relevant to the case. Id. Even though the Federal Railroad Safety Act was brought up in the case, the actual instruction requested was based on Title 66 of the Oklahoma statutes. Id. n.56, 52 P.3d at 1029, n.56. 7 Howard v. Sulzer Orthopedics, Inc., 382 F.App'x 436, 440 (6th Cir. 2010). The Sixth Circuit, in both the majority opinion and the dissenting opinion, went beyond the text of the statute and looked to FDA guidance documents to determine the meaning of the regulation. 8 Brief in Chief of Appellants Brian C. Howard, M.D., and Suzanne Howard, at 11. 9 Food and Drug Admin., OMB No. 0910-0073, Supporting Statement for Medical Devices: Current Good Manufacturing Practice (CGMP), Quality System (Q/S) Regulation, at 1, (updated as of Apr. 27, 2007) (emphasis added) http://www.fda.gov/OHRMS/DOCKETS/98fr/04n-0034-ss00001.pdf. The description of information collection requirements for 21 C.F.R. § 820.70(h) is listed as follows: "21 CFR 820.70(h)-Recordkeeping Manufacturers shall establish and maintain procedures for using and removing adverse manufacturing materials." Id. 10 The Plaintiff has pointed to nothing in his four appendices that would indicate that this GMP was meant to protect a certain class of individuals or a certain type of injury.

011eea89-1123-4aaf-aac0-539fa5e34beb

In the Matter of the Application of the Okla. Turnpike Authority

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF APPLICATION OF THE OKLA. TURNPIKE AUTHORITY2016 OK 124Case Number: 115345Decided: 12/13/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA TURNPIKE AUTHORITY FOR APPROVAL OF NOT TO EXCEED $480,000,000 OKLAHOMA TURNPIKE SYSTEM SECOND SENIOR LIEN REVENUE BONDS, SERIES 2016 ORIGINAL PROCEEDING TO DETERMINE VALIDITY OF PROPOSED STATE REVENUE BONDS ¶0 The Oklahoma Turnpike Authority (Authority) seeks to issue revenue bonds for use in the construction of certain turnpike projects. Pursuant to 69 O.S.2011, § 1718, the Authority filed an application in this Court seeking approval of the proposed bonds. The Protestant, Jerry R. Fent, challenges the validity of the requested bonds. We accepted original jurisdiction to determine the issue of the bonds' validity. APPLICATION FOR APPROVAL OF THE ISSUANCE OF OKLAHOMA TURNPIKE SYSTEM SECOND SENIOR LINE REVENUE BONDS, SERIES 2016, IN AN AMOUNT NOT TO EXCEED $480,000,000.00 IS GRANTED. Gary M. Bush, Jered T. Davidson, The Public Finance Law Group PLLC, Oklahoma City, Oklahoma, for applicant. Jerry R. Fent, Oklahoma City, Oklahoma, Pro Se Respondent. WINCHESTER, J. ¶1 The Oklahoma Turnpike Authority (the "Authority"), pursuant to 69 O.S.2011, § 1718, applies to this Court for approval of an issuance of bonds captioned "Oklahoma Turnpike Authority Oklahoma Turnpike System Second Senior Lien Revenue Bonds, Series 2016" (the "Series 2016 bonds") in an amount not to exceed $480,000,000. The Authority has requested the funds in order to: (1) finance a portion of the capital costs of certain turnpike projects and improvements known as the "Driving Forward Projects," (2) refund the outstanding principal amount of the Authority's Oklahoma Turnpike System Refunding Second Senior Lien Revenue Bonds, Series 2007A dated June 6, 2007, issued in the original principal amount of $45,680,000 (the "Refunding"); (3) satisfy the Reserve Account requirements; and (4) pay the costs related to the issuance of the Bonds. ¶2 This Court is vested with exclusive, statutory original jurisdiction to hear and determine applications for bond approval from the Authority. 69 O.S.2011, § 1718.1 The Authority provided the requisite notice of its application and Jerry R. Fent (the "Protestant"), filed his objection to the application and was given an opportunity to be heard.2 We assumed original jurisdiction to resolve the matter. BACKGROUND ¶3 The Authority has issued bonds for the operation and construction of the state's turnpike projects since 1950. This Court has previously approved bonds requested by the Authority on ten separate occasions, having never disallowed a bond issuance in each of those cases.3 ¶4 In 1987, the Legislature authorized three new projects (the "1987 Projects") to include construction of the OKC Outer Loop, South Tulsa Bypass, and a new turnpike between State Highway 33 and U.S. 69, codified at 69 O.S. § 1705 (e)(20)-(22). The Legislature also approved the statute in question, 69 O.S.2011, § 1705 (f), which provides that the Authority is empowered to issue turnpike revenue bonds, payable solely from revenues, for the "purpose of paying all or any part of the cost of any one or more turnpike projects." The statute further provides that "any bonds issued for the construction of the proposed turnpike referred to in subparagraphs (10), (20), (21) and (22) of paragraph (e) of this section shall be issued as one issue for all four of the proposed turnpikes and shall be financed, constructed and operated under one bond indenture."4 69 O.S.2011, § 1705 (f). ¶5 In 1989, the Authority sought validation of its bonds to construct the 1987 Projects and to refund prior bonds (the "1989 Bonds"). Under this application, the Authority sought to consolidate all previously constructed projects under one master Trust Agreement to operate as one turnpike system. The Court approved the bonds in In re Application of Oklahoma Turnpike Authority, 1989 OK 21, ¶ 22, 770 P.2d 16. ¶6 On October 29, 2015, the "Driving Forward" initiative was announced by Governor Mary Fallin. According to the Authority, the initiative consists of six major projects to provide for "safe travel, relieving congestion to shorten commutes, and sustaining economic development for years to come." The Authority states that two of the Driving Forward projects relate to additional construction of the OKC Outer Loop, which was validated by the Court in 1989. In re Application of Oklahoma Turnpike Authority, 1989 OK 21, ¶ 22, 770 P.2d 16. As a result of this initiative, the Authority submitted the current application for approval of the bonds. DISCUSSION ¶7 The Protestant raises the issue of the constitutionality of the financing plan to fund the turnpike projects in question. The Protestant maintains that the statute in question, 69 O.S.2011, § 1705 (f), provides funding for four separate turnpikes under one bond issue and that this constitutes logrolling in violation of Okla. Const., Art. 5, § 57. The Protestant further argues that the Authority's refunding statute, 60 O.S.2011, § 1719, is unconstitutional as the debts created by the statute exceed twenty-one years in violation of Okla. Const., Art. 2, § 32. A. LOGROLLING ¶8 The Protestant urges that because there are four turnpike construction projects being "financed, constructed and operated with one bond indenture" that this constitutes logrolling in violation of the Oklahoma Constitution's single subject rule, Okla. Const., Art. 5, § 57.5 The Protestant contends that the smaller turnpikes need the larger turnpikes to pay them off through refunding and that this equates to logrolling. ¶9 The Protestant cites Fent v. State ex rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, 214 P.3d 799 for support of his claim of logrolling. In Fent, the Court found the challenged bill unconstitutional because it tied financing for three separate and unrelated projects to one bond. In addressing the bond's validity, the Court stated that the single subject rule should be interpreted using a "germaneness" test. Fent, supra, at ¶ 16. If the "provisions are germane, relative, and cognate to a readily apparent common theme and purpose, the provisions" will not be found to violate the single subject rule. Id. ¶10 We find the instant matter distinguishable as the projects to be funded are not unrelated and, in fact, all concern the construction or maintenance of turnpikes. Each turnpike's stated purpose is to "facilitate vehicular traffic throughout the State." 69 O.S.2011, § 1701. Further, funding multiple projects under one bond issue is not new. The Legislature has specifically authorized the Authority to consolidate projects for funding: The Authority may provide by resolution, at one time or from time to time, for the issuance of turnpike revenue bonds of the Authority for the purpose of paying all or any part of the cost of any one or more turnpike projects. The Authority, when it finds that it would be economical and beneficial to do so, may combine two or more, or any part thereof, or all of its proposed projects into one unit and consider the same as one project to the same extent and with like effect as if the same were a single project. 69 O.S.2011, § 1709(A). ¶11 In Application of Oklahoma Turnpike Authority, 1966 OK 139, 416 P.2d 860, the Authority sought to approve construction projects for multiple turnpikes and a refunding of certain bonds under one single bond. The Court concluded that the Authority may combine and operate the named turnpikes in question as a single project. Application of Oklahoma Turnpike Authority, 1966 OK 139, ¶ 81, 416 P.2d 860. Likewise, in Application of Oklahoma Turnpike Authority, 1961 OK 15, 359 P.2d 680, the Court approved the combining of the Southwestern (H.E. Bailey) Turnpike Project and Eastern Turnpike Project for financing purposes into one unit under a single sinking fund for all the bonds. ¶12 Here, the Authority has the express legislative authority to issue bonds for turnpike projects. 69 O.S.2011, § 1701. The Authority is also authorized to combine multiple projects for purposing of issuing bonds. 69 O.S.2011, § 1709(A). Because the requested bonds all relate to the construction and/or improvement of turnpikes, we find the Authority's application does not violate the single subject rule. B. RULE AGAINST PERPETUITIES ¶13 The Authority's request for approval of the bonds from the Council of Bond Oversight reflects a stated, expected maturity date of January 1, 2046. The Protestant urges that this maturity date violates the rule against perpetuities, Okla. Const., Art. 2, § 32. Section 32 provides: "[p]erpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State." ¶14 The Protestant cites no Oklahoma cases in support of his argument. Instead, he relies only on Hawks v. Hamill, 288 U.S. 52, 53 S. Ct. 240, 77 L. Ed. 610 (1933), a U.S. Supreme Court case where county commissioners in McClain County, Oklahoma, granted a franchise to individuals to build and operate a toll bridge across the Canadian River. The proposed grant was to be perpetual. Id. 288 U.S. at 53-54, 53 S. Ct. at 240-241. The Court narrowed down the issue in Hawks to the validity of a privilege or claim of privilege to obstruct a bridge across a public stream, and not for a decision as to the ownership of the structure of the bridge. Id., 288 U.S. at 59-60, 53 S. Ct. at 243-244. The Court, making no ruling as to any issue concerning the rule against perpetuities, ultimately determined not to insert itself in the case and upheld the dismissal of the cause by the federal district court. Hawks, therefore, does not support the Protestant's claim of a violation of the rule against perpetuities in the instant matter. ¶15 The Protestant fails to cite supporting legal authority showing how there is a violation of the rule against perpetuity concerning the issuance of government bonds with a concrete maturity date. We need not consider propositions unsupported by convincing argument or authority in an original action unless it is apparent without further research that they are well taken. S.W. v. Duncan, 2001 OK 39, ¶ 31, 24 P.3d 846, 857. CONCLUSION ¶16 The proposed bond issue was properly authorized. We find that valid notice of this application was given and that the Authority and the Protestant were fully heard. The Protestant has advanced no legally or factually supportable reasons to disapprove the application. Accordingly, the Authority's application is granted.6 APPLICATION FOR APPROVAL OF THE ISSUANCE OF OKLAHOMA TURNPIKE SYSTEM SECOND SENIOR LINE REVENUE BONDS, SERIES 2016, IN AN AMOUNT NOT TO EXCEED $480,000,000.00 IS GRANTED. ALL JUSTICES CONCUR. FOOTNOTES 1 69 O.S.2011, § 1718 provides: The Authority is authorized in its discretion to file an application with the Supreme Court of Oklahoma for the approval of any bonds to be issued hereunder, and exclusive original jurisdiction is hereby conferred upon the Supreme Court to hear and determine each such application. It shall be the duty of the Court to give such applications precedence over the other business of the Court and to consider and pass upon the applications and any protests which may be filed thereto as speedily as possible. Notice of the hearing on each application shall be given by a notice published in a newspaper of general circulation in the state that on a day named the Authority will ask the Court to hear its application and approve the bonds. Such notice shall inform all persons interested that they may file protests against the issuance of the bonds and be present at the hearing and contest the legality thereof. Such notice shall be published one time not less than ten (10) days prior to the date named for the hearing and the hearing may be adjourned from time to time in the discretion of the Court. If the Court shall be satisfied that the bonds have been properly authorized in accordance with this article and that when issued, they will constitute valid obligations in accordance with their terms, the Court shall render its written opinion approving the bonds and shall fix the time within which a petition for rehearing may be filed. The decision of the Court shall be a judicial determination of the validity of the bonds, shall be conclusive as to the Authority, its officers and agents, and thereafter the bonds so approved and the revenues pledged to their payment shall be incontestable in any court in the State of Oklahoma. 2 The Protestant filed an objection to the application sought herein as well as filed a separate action challenging the bonds' issuance in Jerry R. Fent v. State of Oklahoma, ex rel Oklahoma Turnpike Authority, Case No. 115,270. We previously assumed original jurisdiction in Case No. 115,270, denied the Protestant's requested relief, and found his request for affirmative relief duplicative of the relief sought in this matter and, therefore, dismissed that case. 3 See In re Oklahoma Turnpike Authority, 1950 OK 208, 221 P.2d 795 (finding that the Authority's enabling act was not a special law, did not violate the single subject rule, was not enacted in excess of the Legislature's constitutional authority, and that any bonds issued by the Authority were not obligations of the State); Application of Oklahoma Turnpike Authority, 1952 OK 247, 246 P.2d 327 (approving supplemental bond and determining when bonds can be sold at less than par); Applications of Oklahoma Turnpike Authority, 1954 OK 341, 277 P.2d 176 (approving bonds which combine one or more projects); Application of Oklahoma Turnpike Authority, 1960 OK 1, 348 P.2d 510 (determining validity of trust fund and its pledge to turnpike revenue bonds); Application of Oklahoma Turnpike Authority, 1961 OK 15, 359 P.2d 680 (approved financing of two projects under single structure); Application of Oklahoma Turnpike Authority, 1961 OK 212, 365 P.2d 345 (approving bond issuance and allocation of trust fund revenues); Application of Oklahoma Turnpike Authority, 1963 OK 234, 386 P.2d 165 (validating the bonds and approving several issues relating thereto); Application of Oklahoma Turnpike Authority, 1966 OK 139, 416 P.2d 860 (new money and refundings authorized in one issuance); Application of Oklahoma Turnpike Authority, 1969 OK 176, 460 P.2d 952 (approving Cimarron Turnpike and validating revenue fund apportionments and reiterating that debts are not the obligation of the State); Application of Oklahoma Turnpike Authority, 1989 OK 21, 770 P.2d 16 (finding bonds properly issued). 4 The four turnpikes referenced in paragraph (f) of 69 O.S.2011, § 1705 refer to: (10) A turnpike or any part or parts thereof beginning in the vicinity of Duncan extending east to the vicinity of the City of Davis, and extending in a northeasterly direction, by way of the vicinity of the City of Ada, to a connection in the vicinity of Henryetta or in the vicinity of the intersection of State Highway 48 and Interstate 40; and a turnpike or any part or parts thereof from the vicinity of Snyder extending north to the vicinity of Woodward. (20) All or any part of an Oklahoma City Outer Loop expressway system beginning in the vicinity of I-35 and the Turner Turnpike and extending west into Canadian County and then south to I-40; and then south and east to I-35 in the vicinity of Moore and Norman; and then extending east and north to I-40 east of Tinker Field; and then extending north to the Turner Turnpike to complete the Outer Loop. (21) All or any part of the Tulsa south bypass expressway system beginning in the vicinity of the Turner Turnpike near Sapulpa and extending south and east to U.S. 75 in the vicinity of 96th Street to 121st Street; and then east across the Arkansas River to a connection with the Mingo Valley Expressway; and then south and/or east to a point on the Tulsa-Wagoner County Line near 131st street south in the city of Broken Arrow. (22) A new turnpike or any part thereof from near the west gate of the Will Rogers Turnpike south to the west end of south Tulsa Turnpike at the Tulsa-Wagoner County Line. 69 O.S.2011, § 1705 (e). 5 Art. 5, § 57 of the Oklahoma Constitution provides: "Every act of the Legislature shall express but one subject, which shall be clearly expressed in its title. . . ." This provision is more commonly known as the "single subject rule." 6 Title 20 O.S.2011, § 14.1 provides that this Court shall fix the time for rehearing. Rehearing shall follow Okla.Sup.Ct.R.1.13.

f0ee8c1f-2a33-4859-992d-fae69379af5d

Scott v. Peters

oklahoma

Oklahoma Supreme Court

SCOTT v. PETERS2016 OK 108Case Number: 114913Decided: 10/25/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STEVEN BOYD SCOTT, Plaintiff/Appellant,v.MARTIN PETERS, JR. and TAMMY LYNN PETERS, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY Honorable Gary E. Miller, Trial Judge ¶0 The plaintiff, Steven Scott (grantor), sold real property in Canadian County. More than fourteen years later, he alleged that he intended to keep the mineral interests in the property. He filed a lawsuit against the defendants/appellees, the Peters (grantees/landowners). The landowners filed a motion for summary judgment arguing that the lawsuit was untimely. The trial court agreed and granted summary judgment. We retained this cause to resolve the issue of whether notice imposed upon the grantor by the filing of a deed with the county clerk precludes this action as untimely. We hold it does. MOTION TO RETAIN PREVIOUSLY GRANTED; TRIAL COURT AFFIRMED. T. Matthew Smith, William R. Pace, Oklahoma City, Oklahoma, for Plaintiff/Appellant.Barry K. Roberts, Tammy Lynn Peters, Norman, Oklahoma, for Defendants/Appellees. KAUGER, J.: ¶1 We retained this cause to address the dispositive issue of whether notice imposed upon the grantor by the filing of a deed with the county clerk precludes this action as untimely. We hold it does. FACTS ¶2 The plaintiff/appellant, Steven Boyd Scott (Scott/grantor) owned real property in Canadian County, Oklahoma.1 On August 11, 1997, Scott executed a warranty deed conveying 120 acres of the property to the defendants/appellees, Martin Peters, Jr. and Tammy Lynn Peters (the Peters/grantees). Scott alleges that he only conveyed his surface interest in the 120 of the acres of the NE/4 of Section 5, Township 13 North, Range 6 West.2 In June of 2000, Scott agreed to convey the surface only in the remaining 40 acres to the Peters, for a total of 160 acres of the NE/4 of Section 5, Township 13 North, Range 6 West. The warranty deed was executed on June 12, 2000, and filed on June 16, 2000, in the Canadian County Clerk's office. However, no mineral interests were retained by the grantor in this 40 acre deed. ¶3 On February 2, 2001, the grantor, despite the previous transfers, deeded the same real property covering the NE/4 of Section 5, Township 13 North, Range 6 West, to Larry Russell, d/b/a/ Larry Russell Homes. This warranty deed was filed on March 19, 2001, and it also made no reference to reserving minerals interests. Russell in turn, in August of 2001, conveyed the same property to Raymond E. Wichert and Peggy Jo Wichert Revocable trust, also with no reference to minerals being reserved.3 ¶4 According to the Peters, they subsequently sought a mortgage on the property and discovered Scott's additional conveyances as a cloud on their title. To clear the title, the Peters obtained a quit-claim deed from the Wicherts in January of 2002, and filed the deed on January 28, 2002. Presumably, this cleared the title, at least as far as the mortgage was concerned, to all 160 acres of the NE/4 of Section 5, Township 13 North, Range 6 West. Again, no mineral interests were reserved. The Peters leased the minerals in and under the 160 acre property to Summit Land Company in a lease executed on March 23, 2008, and filed with the Canadian County Clerk on May 1, 2008. ¶5 On August 5, 2014, Scott filed suit against the Peters, seeking to quiet title in the mineral interests in and under the real property which he had deeded to the Peters in August of 1997 (one hundred twenty acres) and June of 2000 (forty acres).4 On September 17, 2014, the Peters answered Scott's allegations and asserted a slander of title claim against the grantor, arguing that they are the owners of the mineral interests in all 160 acres, due to his various conveyances over the years. ¶6 On February 2, 2015, the Peters filed a motion for summary judgment. With regard to the forty acre tract, because it contained no reservation of minerals of any sort, they raise the same arguments which were raised in recent cases No. 114,957, Calvert v. Swinford, 2016 OK 100, __ P.3d ___ , No. 115,015, Calvert v. Swinford, 2016 OK 104, ___ P.3d ___; and No. 115,165, Calvert v. Swinford, 2016 105, __ P.3d __ [which is that the statute of limitations bars the lawsuit] because the grantor had notice of what the deeds conveyed when he signed and filed them with the county clerk. ¶7 With regard to the 120 acre tract [the 1997 deed], the Peters contend that the grantor insufficiently reserved any mineral interests. However, they also argue that, even if it had properly reserved mineral interests, the reservation clause is irrelevant to this cause because the same property was later deeded by Scott in 2001, to Russell, who in turn five months later deeded it to the Wicherts, who deeded it to the Peters in 2002 with no inclusion of any mineral reservations in any of the deeds. Consequently, the Peters argue that any claims relating to the 120 acre tract are also barred by the five year statute of limitations for reformation because the cause was brought more than thirteen years after the Russell deed was filed, and more than six years after their oil and gas lease was filed.5 ¶8 The trial court held a hearing on the summary judgment motion on May 29, 2015, and filed a journal entry on June 8, 2015, overruling the summary judgment motion. On June 18, 2015, the Peters asked the trial court to reconsider summary judgment. After the parties extensively briefed the limitations issue, the trial court held a hearing on January 22, 2016. In Scott's supplemental brief on the issue of statute of limitations, he concedes that the five year limitation period for reforming the deed filed in 2000 had expired and that he was consequently precluded from reforming that deed.6 ¶9 However, Scott argues that the five year limitation period on reformation of the 1997 deed does not begin to accrue when the deed was filed because it did contain a mineral reservation, but the reservation is alleged to have been insufficient in that deed and a layman, such as himself, should not be held to know the legal effect of such an insufficiency until the legal effect is questioned or disputed, relying on Nelson v. Daugherty, 1960 OK 205, 357 P.2d 425. For the first time, Scott also relied on the limitation period of 12 O.S. 2011 §937 for adverse possession claims which was also applied by Nelson, supra. He argues that summary judgment would be premature regarding the 1997 deed because the equitable 15 year limitation period of §93 should be applied. ¶10 The trial court issued a summary order on January 22, 2016, and filed it on March 21, 2016, vacating its previous summary judgment ruling, and instead granted the Peters' motion for summary judgment. On April 19, 2016, Scott appealed. We retained this cause on May 27, 2016, to address same statute of limitations issue along with our previous cases of No. 114,957, Calvert v. Swinford, 2016 OK 100, __ P.3d ___ , No. 115,015, Calvert v. Swinford, 2016 OK __, ___ P.3d ___; and No. 115,165, Calvert v. Swinford, 2016 OK __, __ P.3d __ . THE STATUTE OF LIMITATIONS FOR AN ACTION BROUGHT BY AGRANTOR BEGINS TO ACCRUE WHEN THE DEED IS FILED WITHTHE COUNTY CLERK. ¶11 The Peters argue that constructive notice imposed upon Scott by the filing of a deed precludes this action. Specifically, they contend that Scott's deed in 2001 to Larry Russell covered the same property. Because it did not include a mineral interest reservation, it precluded this action because Scott had notice. When the deed, which did not reserve mineral interests was filed with the county clerk, he did nothing about it for more than 12 years. Larry Russell then deeded the property without reserving mineral interests to the Wicherts also in 2001, and the Wicherts deeded the property to the Peters in 2002, again with no mineral reservation. ¶12 Scott has conceded that he is precluded from challenging the 2000 deed, which deeded forty acres to the Peters, but argues that any applicable statute of limitations is tolled until he learned of any issue regarding the insufficiency of the mineral reservation language in the 1997 deed. He contends that he did not learn of the mistake regarding mineral interests until February of 2014. With regard to the 2001 warranty deed to Russell, Scott merely insists that minerals were not intended to be included in this transaction either, and that he did not prepare the deed. ¶13 We recently decided No. 114,957, Calvert v. Swinford, 2016 OK 100, __ P.3d ___ , No. 115,015, Calvert v. Swinford, 2016 OK 104, ___ P.3d ___; and No. 115,165, Calvert v. Swinford, 2016 OK 105, __ P.3d __ wherein grantors/sisters conveyed real property in deeds which neglected to reserve mineral interests as allegedly intended. After waiting more than twelve years, the sisters brought claims for quiet title and unjust enrichment against the abstract company, the lawyer who drafted the deeds and his law firm, and the grantees who purchased the property. We affirmed the trial court's determination that the lawsuit was untimely because the grantor sisters had signed the deeds, and they were filed with the county clerk. ¶14 The sisters had the opportunity and obligation to read or at least inquire as to what they were signing. In other words, the sisters were not diligent in investigation of the transaction and did not exercise reasonable diligence in discovering the mistake, the statute of limitations period would not be tolled -- in equity or otherwise. We distinguished those cases in which mutual mistakes were made in which the amount of mineral interests actually conveyed and/or where the circumstances warranted.8 We also noted that circumstances were not warranted under the facts of the case. ¶15 Quoting Board of Comm'rs of Garfield County v. Renshaw, 1909 OK 4, ¶6, 99 P. 638, we said: Where the transaction is a matter of public record, either through conveyances registered as required by law or through other means, so that the party complaining has abundant means of finding out the fact of the transaction and its nature, there can be no concealment, and he will be charged with notice of the transaction and of facts which a diligent investigation thereof would develop. A party must be presumed to know what, by the exercise of reasonable diligence, he might have discovered; . . .9 ¶16 Scott relies on Nelson v. Daugherty, 1960 OK 205, 357 P.2d 425, to argue that equity should allow reformation even after several years. Nelson involved an estate administratix who brought an action to quiet title to "(A)n undivided ½ interest in the oil, gas and other minerals and mineral rights" and to reform two warranty deeds. The deeds mistakenly reserved an undivided one-sixteenth (1/16) interest rather than ½. The Court affirmed the trial court's equitable tolling of the statute of limitations because: 1) no evidence was offered as to the statute of limitations; 2) the mistake which plaintiffs sought to reform was a typographical mistake as to the amount of interest in the reservation clause; and 3) another case, Good v. Cohlmia, 1958 OK 230, ¶5, 330 P.2d 588, involving nearly identical facts, had also allowed correction of the typographical error even though the plaintiff was charged with knowledge of the error in the instrument. ¶17 The facts of this cause are different from Nelson, supra, and, therefore, distinguishable. Here, even if the mineral reservation clause in the 1997 deed had been inartfully drafted and insufficient, the grantor attempted to deed the exact same property in 2001 with no reservation clause whatsoever. As the Court stated in Whitman v. Harrison, 1958 OK 141, ¶¶13-16, 327 P.2d 680 that: . . . 'To create a reservation it must appear from the instrument that the grantor intended to and by appropriate words expressed the intent to reserve an interest in himself. Otherwise, the exception must be construed as an exception to the warranty.' ¶18 Consequently, at least as of 2001, when Scott signed and filed a deed with no mineral reservation, he was on notice as to what the deed expressed and, had he timely sought to reform the deed, his action might have succeeded. However, pursuant to our recent holdings and teachings in No. 114,957, Calvert v. Swinford, 2016 OK 100, __ P.3d ___ , No. 115,015, Calvert v. Swinford, 2016 OK 104, ___ P.3d ___; and No. 115,165, Calvert v. Swinford, 2016 OK 105, __ P.3d __ , his lawsuit is untimely.10 CONCLUSION ¶19 Although limitation issues may involve mixed questions of law and fact, they are ordinarily reviewed in this Court as questions of law.11 There exists a statutory presumption that a recorded signed document relating to title to real estate is genuine and was properly executed.12 The record supports but a single conclusion, that the statute of limitations began to accrue when the 2001 deed from Scott to Russell was filed because he was on notice that the deed did not contain any reservation of mineral interests whatsoever. It is this notice, constructive or actual, that triggers the accrual of the statute of limitations. If this were not the case, real property transactions across the state could be set aside at almost any time which could leave all real property transactions unsettled indefinitely. Accordingly, we hold that, notice imposed upon the grantor by the filing of a deed with the county clerk precludes this action as untimely. MOTION TO RETAIN PREVIOUSLY GRANTED; TRIAL COURT AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 The real property involved in this cause included both surface and mineral rights and was located in the NE/4 of Section 5-13N-6W, in Canadian County, Oklahoma. The pertinent language of the recorded deed provides that the conveyance was "subject of easements, restrictions, and mineral reservations and conveyances of record. 'Less and except all oil, gas and other minerals not previously reserve of record.'" 2 The deed was executed August 11, 1997 and recorded August 14, 1997 at book 2086, page 832 in the Canadian County land records office. The deed provides that it is "SUBJECT TO EASEMENTS, RESTRICTIONS, AND MINERAL RESERVATIONS AND CONVEYANCES OF RECORD. 'LESS AND EXCEPT ALL OIL, GAS, AND OTHER MINERALS NOT PREVIOUSLY RESERVED OF RECORD.'" (Emphasis in original) 3 In facts the legal description attached to the deed actually included some mineral interests in another tract described as: Tract C: An undivided one-sixth interest in and to the oil, gas and other minerals lying in and under or produced from the Southwest Quarter (SW/4) of Section Twnety-two (22), Township Thirteen (13) North, Range Seven (7) West. 4 The grantor's first amended petition filed on August 27, 2014, and the only petition included in the record alleges claims for: quiet title; and unjust enrichment. 5 Title 12 O.S. 2011 §95 provides: A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: 1. Within five (5) years: An action upon any contract, agreement, or promise in writing; . 6 Title 12 O.S. 2011 §95, see note 5, supra. 7 Title 12 O.S. 2011 §93 provides in pertinent part: Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter: . . (4) An action for the recovery of real property not hereinbefore provided for, within fifteen (15) years. 8 For example, in Cunnius v. Fields, 1969 OK 8, ¶7, 449 P.2d 703, the Court held the statute of limitations inapplicable to a mutual mistake as to the amount of mineral interests actually inherited. The deed to transfer such interest was filed before the abstract of the property had been seen by the grantors, and grantors were under mistaken belief that they inherited 1/4th mineral interest rather than the ½ that they actually inherited. Other cases in which the actual amount described in the reservation clause was not the amount intended. These cases are likewise distinguishable on their facts. See, Maloy v. Smith, 1959 OK 69, ¶9, 341 P.2d 912 (The court held that reformation of the deed was barred by the statute of limitations because defendant was on notice of plaintiff's claim for eight years. But the court noted that the statute would have been tolled if a person seeking to remove a cloud from title is in continuous possession of the land in question.); Good v. Cohlmia, 1958 OK 230, ¶5, 330 P.2d 588 (Tolling the statute of limitations because defendant accepted 50% of lease payments for years, leading plaintiff to believe each party owned half of the mineral rights despite a typographical error indicating plaintiff owned 1/16.) Still others involve reformation of trust instruments or mortgage notes, or are cases in which the grantee bought and paid for the property and took possession of it and the grantor subsequently executed a mineral deed to another person. See, Harrison et al. v. Eaves, 1942 OK 339, ¶3, 130 P.2d 941 (Tolling the statute of limitations and allowing the heir of a trustee to reform a trust agreement because the trustee had performed the duties of his trust while alive in regards to the subject real property, despite a typographical error in the trust agreement referring to real property not owned by either party.); Crabb et al. v. Chisum et al, 1938 OK 402, ¶16, 80 P.2d 653 (The court allows for reformation of a deed due to mutual mistake, but there is no statute of limitations defense.); and Staub et al. v. Swaim, 1956 OK 17, ¶7, 296 P.2d 147 (Statute of limitations defense was not pleaded by defendant and thus waived. The Court held that when two grantees receive from a common grantor, the recording of a deed by the second grantor does not provide notice to the first grantor if the first has paid for the property, received an executed conveyance, and taken possession of the property before the second records.). Other cases have reached similar results. Ford et al. v. Perry, 1917 OK 465, ¶12, 168 P. 221, another illiterate seller was tricked into signing a deed that was purported to be a rental contract. Even when fraud is alleged, the filing of a real property transaction of record may serve to establish constructive notice thereby triggering the statute of limitations to run. For example, in Mattewson v. Hilton, 1958 OK 6, ¶2, 321 P.2d 396, the plaintiff was to be given property pursuant to a will and when the decree of distribution was entered was not distributed as the plaintiff understood it would be, the plaintiff was precluded by constructive notice of the filing of the decree of distribution. 9 Furthermore, the Court stated in Whitman v. Harrison, 1958 OK 141, ¶¶13-16, 327 P.2d 680 that: . . . 'To create a reservation it must appear from the instrument that the grantor intended to and by appropriate words expressed the intent to reserve an interest in himself. Otherwise, the exception must be construed as an exception to the warranty.' ¶14 We have not overruled that decision and the rule thereof stands and was followed by the trial court. ¶15 That rule was followed in Cutright v. Richey, 208 Okl. 413, 257 P.2d 286 , 287, where, in syllabus paragraph 4 we held: 'A grantor in a deed in presumed to have made all the reservations he intended to make and he is not permitted to derogate from his grant by showing that some reservation was intended but not expressed. [16 Am.Jur. Deeds, Sec. 406; Tong v. Feldman, 152 Md. 398, 136 A. 822, 51 A.L.R. 1291].' ¶16 That rule was implemented and applied in Kassner v. Alexander Drug Co., 194 Okl. 36, 147 P.2d 979 , 981, where this court said: 'The deed not being ambiguous governs and controls as to intention, * *. There is nothing whatever in this deed to satisfy the rule that the deed must clearly express the reservation in the grantor of the right of reversion or it will be deemed to have passed with the conveyance.' . . . 10 This is not to say that there are not circumstances where a grantor may be excused from a limitation period when seeking to correct a mistake in a deed. However, in order to justify the reformation of a deed or contract on the ground of mistake, the party seeking reformation must establish by clear and convincing evidence either that the mistake was mutual or that there was a mistake on the part of one party and fraud or inequitable conduct on the part of the other. In order to justify reformation, the evidence must be full, clear, unequivocal and convincing as to the mistake and its mutuality. Oklahoma City Fed. S&L Ass'n v. Clifton, 1938 OK 390, ¶3, 80 P.2d 283. 11 Woods v. Prestwick House, Inc., 2011 OK 9, ¶14, 247 P.3d 1183. 12 Title 16 O.S. 2011 §53 provides in pertinent part: A. A recorded signed document relating to title to real estate creates a rebuttable presumption with respect to the title that: 1. 1. The document is genuine and was executed as the voluntary act of the person purporting to execute it; 2. The person executing the document and the person on whose behalf it is executed are the persons they are purported to be and the person executing it was neither incompetent nor a minor at any relevant time; 3. Delivery occurred notwithstanding a lapse of time between dates on the document and the date of recording; 4. Any necessary consideration was given; . . .

2520e2f4-e547-4e15-8dbd-0422adb10057

Multiple Injury Trust Fund v. Coburn

oklahoma

Oklahoma Supreme Court

MULTIPLE INJURY TRUST FUND v. COBURN; MULTIPLE INJURY TRUST FUND v. STURDIVANT; MULTIPLE INJURY TRUST FUND v. CROSSLIN; MULTIPLE INJURY TRUST FUND v. WILLIAMS2016 OK 120Decided: 12/06/2016No. 115152; No. 115153; No. 115154; No. 115155 (combined for purposes of published opinion)THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MULTIPLE INJURY TRUST FUND, Petitioner, v. WILLIE A. COBURN and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. MULTIPLE INJURY TRUST FUND, Petitioner, v. BILLIE H. STURDIVANT and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. MULTIPLE INJURY TRUST FUND, Petitioner, v. CHARLES E. CROSSLIN and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. MULTIPLE INJURY TRUST FUND, Petitioner, v. LYMON WILLIAMS and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. PROCEEDINGS TO REVIEW FOUR ORDERS OF THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS ¶0 The Workers' Compensation Court issued two orders in two proceedings in 2008 and two orders in two proceedings in 2009. These four orders in four different proceedings required the Multiple Injury Trust Fund (Fund) to make periodic payments to injured workers and their lawyers for attorney's fees. The four claimants in these proceedings died, and the Fund stopped making payments to their lawyers upon determining an amount equal to eighty (80) weeks of compensation had been paid or tendered to the lawyers. Claimants' lawyers sought a determination the Fund had failed to make payments as required by the orders issued in 2008 and 2009. The Workers' Compensation Court of Existing Claims, the Honorable Owen T. Evans, Judge, directed the Fund to pay attorneys' fees in each of the four proceedings as provided in the original orders. The Fund sought review of these orders before a three-judge panel of the Workers' Compensation Court of Existing Claims, and the panel affirmed the four orders of the trial judge. The Fund sought review in the Oklahoma Supreme Court. The Court retains the four cases and treats them as companion proceedings to be decided by a single opinion. We hold: (1) this Court has jurisdiction to review a decision of the Workers' Compensation Court of Existing Claims when a party aggrieved by that decision has filed a timely petition for review in this Court in accordance with the law in effect prior to February 1, 2014; (2) The Workers' Compensation Court of Existing Claims has jurisdiction to determine if the Fund has made payments as required by the court's previous orders; (3) The Multiple Injury Trust Fund's liability for attorney's fees in these cases is determined by the specific statute concerning payment of attorney's fees by the Fund, 85 O.S.Supp.2005 § 172(H); and (4) 85 O.S.Supp. 2005 § 172(H) is not an unconstitutional special law. ORDER OF THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS SUSTAINED in No. 115,152 - Multiple Injury Trust Fund v. Willie A. Coburn ORDER OF THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS SUSTAINED in No. 115,153 - Multiple Injury Trust Fund v. Billie H. Sturdivant ORDER OF THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS SUSTAINED in No. 115,154 - Multiple Injury Trust Fund v. Charles E. Crosslin ORDER OF THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS SUSTAINED in No. 115,155 - Multiple Injury Trust Fund v. Lymon Williams Douglas B. Cubberley, Philip Redwine, Redwine and Cubberly, Norman, Oklahoma, for Petitioner. Bob Burke, Oklahoma City, Oklahoma, and Richard A. Bell, Norman Oklahoma, for Respondents. EDMONDSON, J. ¶1 The parties disagree on which statute controls the controversy. The Multiple Injury Trust Fund (Fund) argues 85 O.S.Supp.2005 § 30(D) controls the rights of the lawyers to an attorney's fee. The claimants' lawyers argue 85 O.S.Supp.2005 § 172 controls the rights of the lawyers to an attorney's fee, and the Workers' Compensation Court of Existing Claims agreed § 172 controlled the controversy. We agree with the Workers' Compensation Court of Existing Claims. We do not consolidate these four review proceedings, but treat them as companion cases and adjudicate them simultaneously by a single opinion.1 I. Jurisdiction ¶2 This Court has an affirmative duty to inquire into its jurisdiction in every matter before it.2 Jurisdictional issues concerning the Workers' Compensation Court of Existing Claims are reviewed de novo by this Court.3 Section 400 of Title 85A provides the Workers' Compensation Court of Existing Claims hears disputes relating to claims that arose before February 1, 2014, and all benefits and procedures to obtain benefits are determined by the workers' compensation law in effect on the date of the injury.4 However, § 400 in paragraph "J" provides an "appeal" from the Workers' Compensation Court of Existing Claims shall be heard by the Commission en banc, Executive department officials, before a party seeks review in this Court.5 The Workers' Compensation Court of Existing Claims is a court of record.6 The language in paragraph "J" does not apply to these proceedings, as we now explain. ¶3 When a strict, literal interpretation of the statute would lead to inconsistent or incongruent results between the enactment's different parts, judicial interpretation becomes necessary to reconcile the discord.7 In Carlock v. Workers' Compensation Commission, this Court explained: "All aspects of the adjudication of claims for injuries occurring prior to February 1, 2014, are governed by the law in effect at the time of the injury, . . . including the rights of the parties to seek review of an order or award (1) before a three-judge panel of the Court of Existing Claims, as successor to the Workers' Compensation Court, . . . (2) before the Supreme Court, either directly from an order or award of a trial judge, or after review by a three-judge panel...."8 ¶4 Our conclusion was based upon additional language in § 400, an opinion of this Court explaining substantive rights are fixed on the date of injury and may not be altered by subsequent amendment, and a provision of the Oklahoma Constitution.9 We construe our statutes and constitution as a consistent whole in harmony with common sense and reason,10 and we concluded in Carlock a person aggrieved by a decision of the Workers' Compensation Court of Existing Claims may seek review before a three-judge panel of that court and a petition for review filed in this Court as provided by law prior to February 1, 2014. The review of the three judge panel is statutorily limited to the records made before the trial judge, and the panel's orders must be based upon an examination of those trial court records.11 ¶5 We hold this Court has jurisdiction to review a decision of the Workers' Compensation Court of Existing Claims when a party aggrieved by that decision has filed a timely petition for review in this Court in accordance with the law in effect prior to February 1, 2014.12 The petitions for review filed in these four cases were timely and in compliance with the law in effect prior to February 1, 2014. This Court has jurisdiction to hear these review proceedings. II. No. 115,152 - Willie A. Coburn ¶6 The Workers' Compensation Court issued an order in January 2009. The order stated in part: THAT due to the claimant's most recent injury . . . [he] is due compensation at the rate of $289.00 per week from the date of this order and continuing for a period of fifteen years or until the claimant . . . reaches the age of 65 years, whichever shall come later . . . . The order directed the Fund to pay this compensation to the claimant less the amount of the attorney's fee which it directed payment by the following method. That payment of every 5th weekly check is a reasonable attorney fee not exceeding the maximum amount allowed by statute and same is hereby vested at the time this Order becomes final. Claimant's attorney, Nicole Bell, shall receive said vested attorney fee at the periodic method and rate of every 5th weekly payment of $289.00 made under this Order to the claimant until said attorney fee is satisfied. Claimant died in February 2013. Payments to claimant's lawyer were made pursuant to this order through May 2015, and then in June 2015 the Fund tendered a check to the lawyer in the amount of $4,046 representing payments for an additional fourteen weeks. The Fund argued that it had paid claimant's lawyer an amount equaling eighty (80) weekly payments and need not make further payments pursuant to application of 85 O.S.Supp.2005 § 30(D). ¶7 The trial judge, Honorable, Owen T. Evans, Judge, directed the Fund to pay additional attorney's fees. The court determined the fee awarded in 2009 amounted to $45,084, and payable every fifth week at the rate of $289.00 until paid pursuant to 85 O.S. § 172(H). The court gave credit for amounts previously paid to the lawyer. The Fund sought review of this order before a three-judge panel of the Workers' Compensation Court of Existing Claims. The panel determined the order of the trial judge "was not against the clear weight of the evidence nor contrary to law," and affirmed the trial judge's order. III. No. 115,153 - Billie H. Sturdivant ¶8 The Workers' Compensation Court issued an order in September 2008. The order awarded an attorney's fee to Richard Bell, and approximately one week later issued an order nunc pro tunc requiring the payment of a fee by every fifth weekly check: "That payment of every 5th weekly check is a reasonable attorney fee not exceeding the maximum amount allowed by statute and the same is hereby vested at the time this order becomes final." ¶9 Claimant died in July 2012. The Fund had paid $11,560 of the attorney's fee award and continued to make payments until June 2015. The Fund tendered a check to Bell in amount of $2,890 to satisfy 85 O.S. § 30(D), and Bell returned this check to the Fund. ¶10 In December, 2015, the Honorable, Owen T. Evans, Judge, determined the amount of the fee awarded in 2009 was $45,084 payable every fifth week at the rate of $289.00 per week pursuant to 85 O.S. § 172(H). The court gave credit for amounts previously paid to the lawyer pursuant to the 2009 order. The Fund sought review of this order before a three-judge panel of the Workers' Compensation Court of Existing Claims. The panel determined the order of the trial judge "was not against the clear weight of the evidence nor contrary to law," and affirmed the trial judge's order. The Fund sought review in this Court. IV. No. 115,154 - Charles E. Crosslin ¶11 The Workers' Compensation Court issued an order in December 2008. The order awarded an attorney's fee to Richard Bell. The order stated: "Payment of every 5th weekly check is a reasonable attorney fee not exceeding the maximum amount allowed by statute and the same is hereby vested at the time this order becomes final." ¶12 Claimant died in November 2013. The Fund had paid $15,028 (52 weeks) of the attorney's fee award and continued to make payments until May 2015. The Fund tendered a check to Bell in amount of $3,757 (13 additional weeks) to satisfy 85 O.S. § 30(D), and Bell returned this check to the Fund. The Fund paid $23,120 to Bell for the attorney's fee award. The Fund argues this represents eighty (80) weekly payments in accord with 85 O.S. § 30(D). ¶13 In December, 2015, the Honorable, Owen T. Evans, Judge, determined the amount of the fee awarded in 2008 was $45,084 payable every fifth week at the rate of $289.00 per week pursuant to 85 O.S. § 172(H). The court gave credit for amounts previously paid to the lawyer pursuant to the 2009 order. The Fund sought review of this order before a three-judge panel of the Workers' Compensation Court of Existing Claims. The panel determined the order of the trial judge "was not against the clear weight of the evidence nor contrary to law," and affirmed the trial judge's order. V. No. 115,155 - Lymon Williams ¶14 The Workers' Compensation Court issued an order in March 2009. The order awarded an attorney's fee to Richard Bell. The order stated: "Payment of every 5th weekly check is a reasonable attorney fee not exceeding the maximum amount allowed by statute and the same is hereby vested at the time this order becomes final." ¶15 Claimant died in December 2013, and the Fund continued to make the attorney's fee payments until May 2015. The Fund tendered a check to Bell in amount of $4,335 (15 additional weeks) to satisfy 85 O.S. § 30(D), and Bell returned this check to the Fund. The Fund argues the amounts it paid and tendered to Bell represent eighty (80) weekly payments in accord with 85 O.S. § 30(D). ¶16 In December, 2015, the Honorable, Owen T. Evans, Judge, determined the amount of the fee awarded in 2009 was $47,453 payable every fifth week at the rate of $289.00 per week pursuant to 85 O.S. § 172(H). The court gave credit for amounts previously paid to the lawyer pursuant to the 2009 order. The Fund sought review of this order before a three-judge panel of the Workers' Compensation Court of Existing Claims. The panel determined the order of the trial judge "was not against the clear weight of the evidence nor contrary to law," and affirmed the trial judge's order. VI. 85 O.S.Supp.2005 § 30(D) versus 85 O.S.Supp.2005 § 172(H). ¶17 The parties agree the issue is whether 85 O.S.Supp.2005 § 172(H) or 85 O.S.Supp.2005 § 30(D) applies in these controversies. These provisions state as follows. H. An attorney for a claimant against the Multiple Injury Trust Fund shall be entitled to a fee equal to twenty percent (20%) of permanent disability benefits awarded. For awards entered after the effective date of this act, the attorney's fee shall be paid in periodic installments by the attorney receiving every fifth check. All benefits awarded to the attorney shall be vested. In the event a claimant, covered under this subsection, dies as a result of his or her injury before the award has been fully paid, payments shall continue to the surviving spouse for five years or upon remarriage, whichever occurs first. In no event shall payments to the surviving spouse extend beyond the period of benefits awarded to the claimant. 85 O.S.Supp.2005 § 172(H) (emphasis added). Claims for legal fees for permanent partial disability awards shall be paid periodically at the rate of twenty percent (20%) of each weekly check to the claimant until the attorney fee is satisfied, based on a maximum of four hundred (400) weeks of compensation. The right to any such attorney fee shall be vested at the time the award therefor becomes final. 85 O.S.Supp.2005 § 30(D) (emphasis added). ¶18 In 1994 the Forty-fourth Legislature, Second Extraordinary Session, created legislation which amended several provisions of the Workers' Compensation statutes in Oklahoma Title 85.13 This legislation added to § 30 the language "based upon a maximum of four hundred (400) weeks of compensation."14 Section 172 was amended at the same time and the new language in § 172, like the rest of that section, did not address payment of attorney's fees.15 ¶19 At the time of these amendments § 30 was viewed as reducing the attorney fee in permanent total disability cases by placing a limit of 400 weeks of compensation in the calculation upon which the fee was based. A judge of the Workers' Compensation Court at this time explained the amendment would lower the maximum attorney's fee of $31,928 based upon 520 weeks of compensation to an attorney's fee of $24,560 based upon 400 weeks of compensation.16 Consistent with this interpretation, we had previously decided that language in a former version of § 30 stating a fee "shall not exceed twenty percent (20%) of the amount of the award" limited the fee to twenty percent of the 260 weeks of disability compensation awarded in that case.17 ¶20 In 2005 the Fiftieth Legislature, First Extraordinary Session, created legislation which amended several provisions of the Workers' Compensation statutes in Oklahoma Title 85.18 The 2005 legislation amended both §30 and §172 of Title 85.19 The language in § 30 providing a 20% attorney's fee based upon 400 weeks of compensation remained unchanged. However, the amendment to § 172 included language stating the amount of the fee is to be equal to twenty percent (20%) of permanent disability benefits awarded. ¶21 In 1987 we applied 85 O.S.1981 § 30 and determined attorney fees awarded in conjunction with permanent total disability cases must be commuted to a lump sum and recovered at the rate of ten percent from each of the periodic payments until the fee is recouped.20 Three years later, in Taylor v. Special Indemnity Fund, we were asked whether § 30 or § 172 controlled payments made by the Special Indemnity Fund for legal services.21 We stated section 30 "is the only statute in the Act which directly addresses attorney fees."22 We noted § 30 did not distinguish between cases against employers and the Fund, and that section exclusively establishes the maximum amount of legal fees that an attorney can collect, whether the fees must be paid periodically or in a lump sum.23 We noted § 172 was "conspicuously silent on attorney fees."24 We concluded § 30 was a particular statute on attorney's fees and controlled § 172, a general statute on the Special Indemnity Fund which did not address attorney's fees. ¶22 The 2005 version of 85 O.S. §172 is a lengthy and comprehensive statute for liability of the Multiple Injury Trust Fund and includes provisions for both the amounts and methods for the Fund's payments.25 The 2005 version has two paragraphs relating to attorney's fees, paragraphs "F" and "H". The former involves attorney's fees when an award is not timely claimed,26 and the latter the language at issue in the present case. We are presented with the same issue we addressed in Taylor v. Special Indemnity Fund, only in the present case the Legislature has not only provided for the Fund's payment of attorney's fees in § 172, but has also specified the amount of the fee the Fund is to pay. ¶23 A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject matter, prevails over a general statute which does not refer to the particular subject matter, but does contain language which might be broad enough to cover the subject matter if the special statute was not in existence.27 In summary, when there is a conflict between two statutes, one specific (or special) and one general, the statute enacted for the purpose of dealing with the subject matter controls over the general statute.28 ¶24 The Legislature has provided for the amount of attorney's fees to be paid in § 172 in a specific statute stating the liabilities of the Multiple Injury Trust Fund. The Legislature has also provided for payment of attorney's fees in a general statute relating to attorney's fees in § 30. If possible, we must harmonize statutory language to minimize potential conflicting language in statutes involving the same subject.29 We hold that the Fund's liability for attorney's fees in these cases is determined by the specific statute concerning payment of attorney's fees by the Fund, 85 O.S.Supp.2005 § 172(H). VII. Fund's Challenge to Exercise of Jurisdiction by Workers' Compensation Court of Existing Claims and Special Law Challenge ¶25 The Fund argues the various orders are collateral attacks upon the original orders awarding disability and attorney's fees. Part of this argument is that the attorneys were not awarded a specific fee, but a fee to be paid every fifth week and that fee has now abated with the death of the workers. ¶26 This Court has explained the long-recognized principle that a matter which had been litigated to the point of finality before the Workers' Compensation Court may not be litigated a second time.30 Historically, the Workers' Compensation Court has possessed a continuing jurisdiction over a case to administer relief as the case developed,31 provided the exercise of that jurisdiction is for a purpose of granting relief within the statutory authority of the court.32 The Workers' Compensation Court of Existing Claims does possess jurisdiction to construe or interpret its previous final orders when those final orders determine whether that court has jurisdiction to provide relief in a matter then pending before that court.33 In summary, jurisdiction to construe its previous final orders may occur in the context of a proceeding where the subject matter jurisdiction of the court has been invoked to hear a matter within that court's jurisdiction;34 that is, the matter a party places before the Worker's Compensation Court for an adjudication must be a matter authorized by statute for adjudication.35 ¶27 In the Coburn proceedings the attorney filed a motion to set for trial and "discuss attorney fees." The Fund responded and asserted as "affirmative defenses," "Deny attorney's fees due and owing," and then supplemented this language with assertions the fees had been paid for eighty weeks and also challenged the jurisdiction of the court to order fees in excess of eighty weeks. Similar language is found in the records of the other three cases before us. The matter the parties placed before the trial court for adjudication was whether the Fund had paid attorney's fees as required by previous final orders of that court. ¶28 In Smith v. Oklahoma Portland Cement Co.,36 we explained the State Industrial Commission possessed jurisdiction to hold a proceeding brought to determine whether payment had been made as directed in a previous final order of the Commission.37 We described the duty of the Commission to hear a claim of nonpayment as a "mandatory duty of hearing and disposing of claims arising under its jurisdiction on the merits."38 Smith's reliance on 85 O.S. § 41 is still appropriate for our analysis because the Workers' Compensation Court of Existing Claims possesses jurisdiction pursuant to 85 O.S.2001 § 41 to determine whether a payment has been made as previously ordered by the court, although the court may not certify its order for enforcement against the Fund in the District Court.39 Section 41(C) states in part: "Failure for ten (10) days to pay any final award or portion thereof, as ordered shall immediately entitle the beneficiary to an order finding the respondent and/or insurance carrier to be in default and all unpaid portions, including future periodic payments installments unpaid, shall immediately become due and may be immediately enforced as provided by Section 42 of this title." While § 41 contains no language limiting its application to the Fund, our recent opinion in Dean v. Multiple Injury Trust Fund40 held that an award against the Fund cannot be certified to a District Court using the procedure in 85 O.S.2001 § 42.41 However, Dean did recognize the statutory requirement "on or after November 1, 2001, compensation ordered to be paid from the MITF shall bear simple interest only at the percentage rate applicable to judgments in civil cases pursuant to § 727 of title 12."42 ¶29 The "procedures to obtain benefits shall be determined by the workers' compensation law of this state in effect on the date of injury."43 Both 85 O.S.Supp.2005 § 30 and § 172(H) state the attorney fee awarded is "vested." The rights that come to be vested in every final judgment constitute private property within the meaning of the Due Process provision of the Oklahoma Constitution.44 We conclude that the allegations of the claimants' attorneys that the Fund unilaterally stopped payments previously ordered by the court were sufficient to invoke the statutory continuing subject matter jurisdiction of that court to interpret its previous orders and determine if the payments had been erroneously stopped by the Fund and if interest was due on payments the Fund had declined to make. ¶30 The Fund relies upon Batt v. Special Indemnity Fund, where we explained the attorney's fee was part of the claimant's award and abated upon the claimant's death.45 In Batt, we explained the workers' compensation statute in force at the time of claimant's injury applies to an award of an attorney's fee, and the then recently amended language in § 30 providing for vesting of attorney's fees did not apply to the claimant's attorney in that case because the claimant's injury predated the statutory change.46 Then in Hix v. White Swan Food Services, we explained when a claimant dies before the entire award is recouped, there can be no reduction in the amount of the attorney fee earned.47 In Hix, the Fund argued "the attorney's fee was limited to 20% of the amount actually paid to claimant" prior to the claimant's death. The Workers' Compensation Court adopted the Fund's argument and "ruled that the claimant's attorney's fee was limited to 20% of the amount actually received by the claimant prior to his death." We explained the value of the attorney's services had been established by the original order awarding $23,100 as a lump sum attorney's fee in the matter prior to the death of the claimant, and the Workers' Compensation Court erred by reducing the attorney's fee due to the claimant's death.48 ¶31 The attorneys in this case were entitled to be awarded an attorney's fee "equal to twenty percent (20%) of permanent disability benefits awarded." 85 O.S.Supp.2005 § 172(H). This statute also states in part: "All benefits awarded to the attorney shall be vested." Id. The Fund's argument asks us to rewrite the 2005 statute and make the amount vested to be either (1) indeterminate at the time of the award, or (2) determinate at the time of the award but limited to 20% of 400 weeks of disability compensation. Section 172 states the attorney's fee shall be a "fee equal to twenty percent (20%) of permanent disability benefits awarded." The orders in the cases before us awarded a § 20% fee by directing payment "of every 5th weekly check" as an attorney's fee. The statutory language is 20% of the amount of permanent disability benefits "awarded" and not 20% of 400 weeks of compensation or 20% of the permanent disability benefits actually paid to the claimant and claimant's surviving spouse. The attorney's fee to be awarded pursuant to § 172(H) is not limited to an amount equal to 20% of 400 weeks of compensation. The language in § 172(H) is not ambiguous and we apply this language as an expression of legislative intent which we are not empowered to rewrite.49 ¶32 The Fund argues that when the Workers' Compensation Court of Existing Claims considered the attorneys' requests for a hearing on the amount of fees owed the court incorrectly "converted a right to receive a periodic payment to a right to receive a lump sum fee."50 The Fund is incorrect. In Coburn, the trial judge determined a total disability amount of fifteen years had been awarded to Coburn and the 20% attorney's fee awarded was "payable every 5th week, at the rate of $289.00 per week, until fully paid." The trial court did determine the total dollar amount awarded as an attorney's fee, $45,084.00, but that amount was not converted into a lump sum payment. The trial court ordered an accounting of fees paid to date, and awarded interest on the amount due since the attorney's fees were last paid.51 Similar language appears in the trial judge's orders in the other cases before us.52 The phrase "lump sum" has been used in workers' compensation jurisprudence for many years to distinguish a method of payment, that is, payment in one sum as opposed to periodic payments.53 The court ordered the Fund to continue the periodic payments and pay with interest the periodic payments which were due and unpaid. A lump sum award was not made. ¶33 The last argument made by the Fund is that § 172(H) is an unconstitutional special law because attorney's fees against the Funds are not limited by the 400-weeks language in § 30. The Fund cites Okla. Const. Art. 5, § 59 which provides: "[l]aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." ¶34 The Fund argues "there is no valid reason [for § 172(H)] to differentiate between employers and the Fund for purposes of an attorney fee on awards of permanent total disability benefits."54 One part of a "special law" analysis is whether the legislative classification is based upon "some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination."55 In Dean v. Multiple Injury Trust Fund, supra, the Fund argued the Legislature in 85 O.S.2001 § 42 could constitutionally classify the Fund's obligations for a different treatment because the Fund's obligations warranted different treatment.56 In the present case the Fund argues the opposite. ¶35 Our opinions have recognized the concept that in some circumstances an attorney's fee may include an amount characterized as an incentive.57 The Legislature's classification of attorney's fees awarded against the Fund pursuant to § 172(H) provides a fixed 20% fee which does not abate upon the death of the claimant, and this appears to be a statutory incentive approved by the Legislature. We need not make a list of the distinguishing characteristics of the Fund since the one we discussed in Dean will suffice. A legislative classification which removes awards against the Fund from the normal procedure of enforcement in the District Court has the effect of discouraging lawyers in taking such cases and representing injured workers against the Fund. The statutory language construed in Dean which removed the Fund from a statutory enforcement mechanism was enacted in 1994.58 In 2005, the Legislature appears to have created an incentive for lawyers to take clients seeking compensation from the Fund in the absence of a claimant's § 42 right to a statutory enforcement mechanism. The legislative classification in § 172(H) is based upon a distinctive treatment with a reasonable basis. The Legislature did not enact an unconstitutional special law when it created 85 O.S. § 172(H). VIII. Conclusion ¶36 We hold this Court has jurisdiction to review a decision of the Workers' Compensation Court of Existing Claims when a party aggrieved by that decision has filed a timely petition for review in this Court in accordance with the law in effect prior to February 1, 2014. We hold the Workers' Compensation Court of Existing Claims has jurisdiction to determine if the Fund has made payments as required by the court's previous orders. We hold the Multiple Injury Trust Fund's liability for attorney's fees in these cases is determined by the specific statute concerning payment of attorney's fees by the Fund, 85 O.S.Supp.2005 § 172(H). We hold 85 O.S.Supp. 2005 § 172(H) is not an unconstitutional special law. ¶37 Four orders of the three-judge panel of the Workers' Compensation Court of Existing Claims are brought for our review in four review proceedings: (1) No. 115,152 - Multiple Injury Trust Fund v. Willie A. Coburn; (2) No. 115,153 - Multiple Injury Trust Fund v. Billie H. Sturdivant; (3) No. 115,154 - Multiple Injury Trust Fund v. Charles E. Crosslin; and (4) No. 115,155 - Multiple Injury Trust Fund v. Lymon Williams, and each order of these four orders of the three-judge panel is sustained. ¶38 COMBS, C.J., GURICH, V.C.J., and KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, and REIF, JJ., concur. ¶39 COLBERT, J., not participating. FOOTNOTES 1 See, e.g., In re Guardianship of Berry, 2014 OK 56, n. 1, 335 P.3d 779, 783 (one opinion adjudicated two consolidated appeals and a companion appeal); City of Midwest City v. House of Realty, Inc., 2008 OK 28, ¶ 1, 198 P.2d 886, 889 (companion appeals considered together for the purpose of one appellate opinion). 2 Snyder v. Smith Welding and Fabrication, 1986 OK 35, 746 P.2d 168, 171. 3 Loyd v. Michelin North America, Inc., 2016 OK 6, ¶ 5, 371 P.3d 488, 490. See also Hogg v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, ¶ 7, 292 P.3d 29 (statutory construction and questions concerning jurisdictional matters in the Workers' Compensation Court present issues of law reviewed de novo by this Court); Stidham v. Special Indem. Fund, 2000 OK 33, ¶ 10, 10 P.3d 880 (same). 4 85A O.S.Supp.2013 § 400 provides in part: A. The Workers' Compensation Court shall be renamed the Workers' Compensation Court of Existing Claims for the purpose of hearing disputes relating to claims that arise before February 1, 2014.... L. For an injury occurring before the effective date of this act, all benefits and procedures to obtain benefits shall be determined by the workers' compensation law of this state in effect on the date of the injury. 5 85A O.S.Supp.2013 § 400 (J) provides: J. Any appeal of an order by the Workers' Compensation Court of Existing Claims shall be heard by the Commission en banc. The Commission shall review the decision using an abuse of discretion standard of review. Orders by the Commission may be appealed in accordance with Section 78 of this act. 6 Robinson v. Fairview Fellowship Home, etc., 2016 OK 42, n. 14, 371 P.3d 477, 481. 7 State ex rel. Oklahoma Dept. of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 878. 8 Carlock v. Workers' Compensation Commission, 2014 OK 29, ¶ 2, 324 P.3d 408. Cf. Aircraft Accessories of OK v. Denton, 2015 OK 31, 350 P.3d 107 (review proceeding dismissed as untimely pursuant to Okla. Sup. Ct. R. 1.100 because the petition for review was filed more than 20 days after a copy of the court's order was sent to the parties). 9 Carlock v. Workers' Compensation Commission, 2014 OK 29, at ¶ 2, citing § 400 (D) & (L), King Manufacturing v. Meadows, 2005 OK 78, 127 P.3d 584, and Okla. Const. Art. 5 § 4. See, e.g., Scruggs v. Edwards, 2007 OK 6, ¶¶ 7-8, 154 P.3d 1257, 1261, explaining King Mfg. v. Meadows, 2005 OK 78, ¶¶ 11-12, 127 P.3d 584, 589, and the difference between (1) statutory amendments which may not operate retrospectively to alter substantive rights and obligations which are fixed on the date of injury, and (2) amendments which relate to remedies); Okla. Const. Art. 5 § 54 ("The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute."). 10 St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 918. 11 Kwikset/Emhart v. Mayberry, 1990 OK 112, 800 P.2d 239, 244. 12 In 1792 the U.S. Supreme Court held U.S. Const. Art. III, § 1 vesting of judicial power in the Supreme Court and inferior courts meant, in part, that "Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S. Ct. 1447, 1453, 131 L. Ed. 2d 328 (1995), explaining Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792). Cf. Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, ¶ 12, 371 P.3d 477, 481, 483 (The Legislature may not confer upon the Commission the power to determine the facial constitutionality of a statute, because such power resides in the judiciary alone.). We need not address whether Okla. Const. Art. 7 § 1 would be violated by language attempting to vest in Executive department officials authority to review an exercise of judicial power by the Workers' Compensation Court of Existing Claims. Our application of Carlock v. Workers' Compensation Commission, supra, provides for review of an exercise of judicial power by a timely petition in this Court without an intervening review by an official of the Executive department. 13 Laws 1994, 2nd Ex.Sess., c. 1, emerg. eff. Nov. 4, 1994 (1994 Okla. Sess. Laws 2189-2244); 85 O.S.Supp. 1995 § 172. 14 Laws 1994, 2nd Ex.Sess., c. 1, § 31, emerg. eff. Nov. 4, 1994 (1994 Okla. Sess. Laws 2229). 15 Laws 1994, 2nd Ex.Sess., c. 1, § 42, emerg. eff. Nov. 4, 1994 (1994 Okla. Sess. Laws 2237). The added language stated: "All weekly payments for permanent partial disability shall be paid before any claim for benefits against the Special Indemnity Fund may be paid. In the case of a lump-sum permanent partial disability award or settlement, such award or settlement shall be divided by seventy percent (70%) of the employee's weekly wage up to a maximum of fifty percent (50%) of th state's average weekly wage, to determine the number of weeks which must elapse before a claim against the Special Indemnity Fund may be paid." 16 Honorable Noma D. Gurich, Judge of the Workers' Compensation Court, Summary of the 1994 Legislative Changes to the Oklahoma Workers' Compensation Act, Dec. 23, 1994, published in, The Managed Care Act Workers' Compensation Reform, OBA/CLE No. 554, Spring 1995 (Oklahoma Bar Association 1995), p. I-9 ) (calculation of fee based upon the then maximum permanent total disability rate of $307.00 and an attorney's fee equal to 20% of the award). 17 Special Indemnity Fund v. Flagg, 1993 OK 28, 849 P.2d 395, 396. 18 Laws 2005, 1st Ex.Sess., c. 1, eff. July 1, 2005 (2005 Okla. Sess. Laws 2339-2413). 19 Laws 2005, 1st Ex.Sess., c. 1, §§ 23, 28, eff. July 1, 2005 (2005 Okla. Sess. Laws 2397-2398, 2402 -2405). 20 Chamberlain v. American Airlines, 1987 OK 62, 740 P.2d 717, 722. 21 Taylor v. Special Indemnity Fund, 1990 OK 106, 804 P.2d 431. 22 Taylor v. Special Indemnity Fund, 804 P.2d at 432. 23 Taylor, 804 P.2d at 432. The Legislature thereafter amended 85 O.S. § 30 (1992) to provide that the right to an attorney fee was vested at the time the award for the fee became final and a lump sum award could be deducted from periodic payments; and § 30 was amended again (1994) to provide an attorney's fees based upon a maximum of four hundred (400) weeks of compensation. Hix v. White Swan Food Services, 1996 OK 132, 930 P.2d 208, 211. 24 Taylor, 804 P.2d at 432. 25 See e.g., 85 O.S.Supp.2005 § 172 (B)(1): "...In permanent total disability cases the same may be paid in periodic payments ... or may be commuted to a lump-sum payment ... Permanent total awards from the Multiple Injury Trust Fund shall be payable for a period of five years or until the employee reaches sixty-five (65) years of age, whichever period is longer."; § 172 (B)(2) "Payment for permanent total disability . . . may be paid in periodic installments or may be commuted to a lump-sum payment upon agreement..."; §172(B)(3) "... paid in periodic payments, as set forth in Section 22 (85 O.S.) . . . payable for a period of fifteen (15) years or until the employee reaches sixty-five (65) years of age. 26 85 O.S.Supp.2005 § 172(F) states in part: Awards that are not claimed within two (2) years of the date on which the award first becomes available shall be returned to the party who is responsible for payment of the award, less any attorney fees, as specified in the original court order awarding benefits for a material increase in disability resulting from a combination of injuries. Payment of attorney fees shall be made separately from payment to a claimant. 27 Taylor v. Special Indemnity Fund, 804 P.2d at 432, quoting Williamson v. Evans, 1957 OK 304, 319 P.2d 1112, 1113. 28 Scruggs v. Edwards, 2007 OK 6, n. 11, 154 P.3d 1257, 1263, citing Phillips v. Hedges, 2005 OK 77, ¶ 12, 124 P.3d 227, 231. 29 Ball v. Multiple Injury Trust Fund, 2015 OK 64, n. 29, 360 P.3d 499. 30 See, e.g., Yeatman v. Northern Oklahoma Resource Center of Enid, 2004 OK 27, ¶ 16, 89 P.3d 1095, 1101 ("Any order of the workers' compensation court which makes or denies an award or otherwise determines the rights of the parties is final . . . Failure to complain of error at that stage makes the decision final and impervious to any reconsideration.") (material and notes omitted); Ross v. State Industrial Court, 1964 OK 161, 394 P.2d 501, 505 ("Once an order of the State Industrial Court of effect that a certain alleged disability is not compensable, becomes final, then and in that event such alleged disability cannot be the basis for an order finding a change of condition for the worse."); Wm. A. Smith Const. Co. v. Price, 1938 OK 492, 83 P.2d 160, 161 ("After the Commission has entered its order it becomes final . . . [t]he only relief which petitioner has against the order or award is to appeal therefrom to the Supreme Court. The matters therein litigated cannot again be litigated."). 31 85 O.S.2001 § 84 (A) states in part: "The power and jurisdiction of the Court over each case shall be continuing and it may, from time to time, make such modification or changes with respect to former findings or orders relating thereto...." 32 Orrick Stone v. Jeffries, 1971 OK 116, 488 P.2d 1243 (a claimant may be awarded continuing medical treatment and care for as long as it may be needed even after temporary total disability payments for 300 weeks have been paid); Pitchford v. Jim Powell Dozer, Inc., 2000 OK 12, 996 P.2d 935 (claimant must show a change in condition for the worse for the court to have authority to award medical treatment because previous final order for permanent partial disability did not award continuing medical treatment). 33 See, e.g., Independent Oil & Gas Company et al. v. Mooney, et al., 1940 OK 244, 103 P.2d 557, 559 (In 1939 the Commission reviewed what had taken place before the Commission in 1924 to determine whether the Commission had jurisdiction to make an award in 1939); Dutton v. City of Midwest City, 2015 OK 51, ¶ 15, 353 P.3d 532, 538-539 (a court has jurisdiction to determine whether it has jurisdiction in the particular matter before the court). 34 Dutton v. City of Midwest City, 2015 OK 51, ¶ 16, 353 P.3d 532, 539 (Subject matter jurisdiction is the power to deal with the general subject involved in the action or the nature of the cause of action and the relief sought.); Kentucky Fried Chicken of McAlester v. Snell, 2014 OK 35, ¶ 15, 345 P.3d 351, 356 ("The workers' compensation court is a statutory tribunal of limited jurisdiction and has only such jurisdiction as is conferred by law."). 35 Patterson v. Sue Estell Trucking Co., Inc., 2004 OK 66, ¶ 6, 95 P.3d 1087, 1088 ("The Worker's Compensation Act is in derogation of the common law and those statutes are the exclusive provisions governing benefits. Workers' eligibility for benefits, limitations on benefits, and circumstances which will cause those benefits to cease have been determined by our legislature. We may not employ rules of common law or equity to change those provisions."). Cf. Cities Service Gas Co. v. Witt, 1972 OK 100, 500 P.2d 288, 291 (Workers' Compensation Court possess jurisdiction conferred by statutes and jurisdiction may not be enlarged by application of a common-law equitable estoppel). 36 1942 OK 178, 126 P.2d 718. 37 Smith, 126 P.2d at 719, citing 85 O.S.1941 § 41. Cf. O. C. Whitaker, Inc. v. Dillingham, 1944 OK 282, 152 P.2d 371 (A proceeding before the State Industrial Commission to certify an award to the District Court of Oklahoma County based upon a previous Commission order for payment of attorney's fee.). 38 Smith, 126 P.2d at 719-720, citing Royal Mining Co. v. Murray, 1933 OK 653, 30 P.2d 185. 39 The Workers' Compensation Court of Existing Claims "shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Worker's Compensation Code." 85A O.S.Supp.2013 § 400(I). The "Workers' Compensation Code in effect prior to the effective date of the this act [ "Administrative Workers' Compensation Act"] shall govern all rights in respect to claims for injuries and death based on accidents occurring before the effective date of this act." 85A O.S.Supp. 2013 §3 (explanation added). Title 85 O.S. § 41 (C) states in part: "Failure for ten (10) days to pay any final award or portion thereof, as ordered shall immediately entitle the beneficiary to an order finding the respondent and/or insurance carrier to be in default...." See State Insurance Fund v. Brooks, 1988 OK 50, n. 9, 755 P.2d 653, 656 (Court explained that the "Workers' Compensation Court is vested with exclusive jurisdiction to determine and enforce a compensation risk carrier's liability to a claimant" and supported authority included 85 O.S.Supp.1986 § 26(B); 85 O.S.1981 §§ 65.3, 64, and 41(C)). See the discussion of 85 O.S. § 41 infra. 40 2006 OK 78, 145 P.3d 1097. 41 Dean, 2006 OK ¶ 27, 145 P.3d at 1105, ("The workers' compensation court was correct in its construction of 85 O.S.2001, § 42, that awards against the MITF cannot be certified to district court."). 42 Dean, 2006 OK 78, ¶ 11, 145 P.3d at 1101. 43 85A O.S.Supp. 2015 § 400(L) at note 4 supra. 44 Messenger v. Messenger, 1992 OK 27, 827 P.2d 865, 872, citing Okla. Const. Art. 2 § 7 ("No person shall be deprived of life, liberty, or property, without due process of law."). 45 Batt v. Special Indemnity Fund, 1993 OK 163, 865 P.2d 1244. 46 Batt v. Special Indemnity Fund, 865 P.2d at 1247 ("Whatever the implications of the 1992 amendment, because the language was not in effect at the time of Employee's injury, it does not govern the case at hand."). 47 Hix v. White Swan Food Services, 1996 OK 132, 930 P.2d 208. 48 Hix, 930 P.2d at 212-213. 49 Torres v. Seaboard Foods, L.L.C., 2016 OK 20, ¶ 11, 373 P.3d 1057, 1065 ("If the language of the statute is plain and unambiguous, the legislative intent is deemed to be expressed by the statutory language."); Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 10, 130 P.3d 213, 219 (If the text of a workers' compensation statute is plain and unambiguous, the Court's duty stands confined to making it enforceable.). 50 Fund's Combined Brief (Sept. 23, 2016) at p. 13. 51 Coburn v. Multiple Injury Trust Fund, Okla. Sup. Ct. No. 115,152, O.R. at p. 85 (Order of Judge Evans, Dec. 18, 2015). 52 Sturdivant v. Multiple Injury Trust Fund, Okla. Sup. Ct. No. 115,153, O.R. at p. 45 (Order of Judge Evans, Dec. 18, 2015) ($45,084.00, payable every 5th week, at the rate of $289.00 per week); Crosslin v. Multiple Injury Trust Fund, Okla. Sup. Ct. No. 115,154, O.R. at p. 60 (Order of Judge Evans, Dec. 18, 2015) ($45,084.00, payable every 5th week, at the rate of $289.00 per week); and Williams v. Multiple Injury Trust Fund, Okla. Sup. Ct. No. 115,155, O.R. at p. 98 (Order of Judge Evans, Dec. 18, 2015) ($47,453.80, payable every 5th week, at the rate of $289.00 per week). 53 Loyd v. Michelin North America, Inc., 2016 OK 46, ¶ 6, 371 P.3d 488, 491 quoting 85 O.S.2001 § 41(A), which states in part: "Whenever an injured person receives an award for permanent partial disability, permanent total disability or death benefits, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court." See, e.g., Derr v. Weaver, 1935 OK 1223, 47 P.2d 573 (explaining commuting periodic payments to a lump sum payment). 54 Fund's Combined Brief (Sept. 23, 2016) at pp. 16-17 (explanation added). 55 Vasquez v. Dillard's, Inc., 2016 OK 89, ¶ 31, 381 P.3d 768, 774, quoting Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶ 10, 5 P.3d 594, 598. 56 See, e.g., Torres v. Seaboard Foods, L.L.C., 2016 OK 20, ¶ 2, 373 P.3d 1082-1083, (Combs, V.C.J., concurring specially and joined by Watt, J., stating that in Dean, because of its unique status and continuing problem with timely payment of awards due to lack of funds, this Court determined treating the Multiple Injury Trust Fund different from other workers compensation insurers satisfied Okla. Const. Art. 2 §§ 6,7.). 57 Spencer v. Oklahoma Gas and Electric Co., 2007 OK 76, ¶ 27, n. 33, 171 P.3d 890, 898, citing Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659 (Court approved a 40% incentive fee). 58 85 O.S.Supp.1995 § 42 (citing Laws 1994, 2nd Ex. Sess., c. 1, § 32, emerg. eff. Nov. 4, 1994).

7d9bdd3c-4772-46ad-9d0e-32b594cecf46

O'Donoghue v. Dooley

oklahoma

Oklahoma Supreme Court

O'DONOGHUE v. DOOLEY2016 OK 110Case Number: 113489Decided: 10/25/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.  IN THE MATTER OF THE DAVID L. DOOLEY TRUST AND THE CAROLYN ANN COLLINS DOOLEY TRUST: SANDRA O'DONOGHUE, Appellant, v. CAROLYN DOOLEY, TRUSTEE, Appellee. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Appellant, Sandra O'Donoghue, as personal representative of the estate of David O'Donoghue, commenced this action seeking an adjudication that the estates of David L. Dooley's grandchildren, Erin and David O'Donoghue, were the beneficiaries of bequests of trust principal under the David L. Dooley and Carolyn Ann Collins Dooley Trusts. The district court granted summary judgment to Carolyn Dooley, Trustee, and determined that the per stirpes bequests of trust principal to Erin and David, lapsed upon their death leaving no lineal descendants. The Court of Civil Appeals, Division III, reversed finding Appellant, as the spouse and beneficiary of the estate of David O'Donoghue, was entitled to take his share of the trust principal upon the death of Settlor's spouse. Appellee sought, and this Court granted, certiorari. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED. Gregory C. Blackwell, BALL & MORSE, P.L.L.C., Norman, Oklahoma, for Appellant. Craig E. Brown and Evan McCormick, WHEELER, WHEELER, MORGAN, FAULKNER & BROWN, and Debra W. McCormick and Eugene Bertman, MCCORMICK & BRYAN, Oklahoma City, Oklahoma, for Appellee. WINCHESTER, J. ¶1 The primary issue on appeal is whether the per stirpes gift of any remaining Trust principal left to two of Settlor's grandchildren, who have died without lineal descendants, may ultimately be distributed to the widow of one of the grandchildren. We hold that the Trust principal remainder interest was intended for lineal descendants of the two grandchildren, and not to the grandchild's widow. BACKGROUND ¶2 David L. Dooley (the Settlor) created the David L. Dooley Trust (Trust) on September 12, 2003, appointing himself as the initial trustee for his own benefit. The Settlor also established a pour-over will in which the Trust was the sole beneficiary. This same date, the Settlor married the Appellee, Carolyn Ann Collins, his partner of over thirteen years. The Settlor died a little over one month later on October 20, 2003, with all four of his children having predeceased him. The Settlor named two of his five grandchildren, Erin and David O'Donoghue, as successor trustees. ¶3 Pursuant to Article 5.02 of the Trust, because the Settlor was survived by his spouse, Appellee, the Trust was split into two parts, Part A and Part B.1 Part A was named the "David L. Dooley Trust" and Part B was referred to as the "Carolyn Ann Collins Dooley Trust," named for the Settlor's spouse, Appellee herein. Pursuant to Article 5.02, Part A of the Trust was to "consist of an amount of property equal to the largest amount that can pass free of federal estate tax" and be distributed in accordance with the provisions of Article 5.04 of the Trust. ¶4 Article 5.04 of the Trust devised five gifts to each of the Settlor's five grandchildren. Two of the gifts were $1000.00 each to Susan and Janet Haggard. David Haggard's gift was $50,000. The Trust required each of these three gifts to lapse if the recipient predeceased the Settlor, which did not happen and the gifts have been disbursed. The remaining two gifts distributed "the balance of Part A, outright and free of trust, to the Settlor's grandchildren, Erin O'Donoghue and David O'Donoghue, per stirpes." According to the record herein, Erin and David each were paid $474,000.00 as their share of the Part A gifts. After the distributions were made to the grandchildren, Part A of the Trust appears to be complete. ¶5 Part B of the Trust consists of all remaining property not previously distributed under Part A. Article 5.05 provides for the distribution of the net income and principal of the Trust as follows, in pertinent part: a. Income. Commencing as of the date of the death of the Settlor and throughout the lifetime of the Settlor's spouse, the Trustee shall distribute the net income of this Trust, in convenient installments, but not less frequently than annually. b. Non-Productive Property. The Settlor's spouse may at any time, by written notice, require the Trustee either to make any non-productive property of the Trust productive or to convert such non-productive property to productive property within a reasonable time. c. Death of Settlor's Spouse. On the death of the Settlor's spouse, all income accrued or received by the Trustee, but not distributed prior to the date of death of the Settlor's spouse, shall be paid to the estate of the Settlor's spouse, and all principal then remaining in this Trust shall be distributed to the Settlor's granddaughter, Erin O'Donoghue, and the Settlor's grandson, David O'Donoghue, per stirpes, and this Trust shall terminate. ¶6 It is undisputed that both Erin and David O'Donoghue died leaving no lineal descendants. Erin survived Settlor, but died testate on May 13, 2010, leaving David O'Donoghue as the sole beneficiary of Erin O'Donoghue's estate. David also survived Settlor, but died testate on December 21, 2013. Appellant, Sandra O'Donoghue, David's widow, is the sole beneficiary of David O'Donoghue's estate and is currently serving as personal representative of that estate. After the deaths of Erin and David, Appellee sought and obtained appointments as Trustee of the Trust.2 ¶7 Appellant commenced the instant action, seeking construction of the provisions of the Trust and an accounting. Appellant argues that Erin and David are beneficiaries of Trust principal under the Trust and that she, as the sole beneficiary of the estate of David O'Donoghue, is entitled to Erin and David's distribution of the Trust's principal upon Appellee's death. ¶8 Appellee filed a motion to dismiss on the grounds that all distributions required by Article 5.04 had been made and that the per stirpes bequests to Erin and David under Article 5.05 were contingent upon Appellee's death before them. Appellee contends that the gifts to Erin and David lapsed upon their deaths without lineal descendants to satisfy a per stirpes distribution. The trial court denied the motion to dismiss and Appellee later filed a motion for summary judgment on the same grounds. ¶9 Appellant asserted a cross-motion for summary judgment claiming that Appellee was only entitled to income from Part B principal and that the interests of Erin and David to the principal vested at the time of Settlor's death and should fall to her as the sole beneficiary of David O'Donoghue's estate. Alternatively, Appellant stated that if the gifts to Erin and David had lapsed, the trust principal should be distributed in the probate of Settlor's estate under the laws of intestate succession. ¶10 On September 16, 2014, the trial court awarded summary judgment to Appellee, and denied Appellant's cross-motion. The trial court ruled that the distribution date for the remaining principal of Part B was intended to be the date of death of Settlor's spouse, which has yet to occur. Consequently, the trial court found that Appellant had no claim to any proceeds of the Trust. The trial court denied Appellant's motion to modify and Appellant appealed. ¶11 The Court of Civil Appeals, Division III, reversed the trial court, and held that the gifts of Trust principal to Erin and David vested upon Settlor's death and that the vested remainder interest passed generally to the heirs of Erin and David upon their deaths before Appellee or, more specifically, to Appellant, David's widow. Appellee petitioned for certiorari which this Court previously granted. DISCUSSION ¶12 In construing the terms of a trust, the intention of the settlor of the trust should control. In re Dimick's Will, 1975 OK 10, ¶ 10, 531 P.2d 1027, 1030. In cases where a testamentary document is capable of two interpretations, one which would avoid intestacy and one that would not, the former interpretation should prevail. Matter of Tayrien's Estate, 1980 OK 8, ¶ 11, 609 P.2d 752, 755; Hulett v. First Nat. Bank and Trust Co. in Clinton, 1998 OK 21, ¶ 22, 956 P.2d 879, 885. ¶13 Here, the Settlor expressly intended for his wife, Appellee, to have the Trust income for life and for his grandchildren, Erin and David, to take any remaining Trust corpus, per stirpes. The gift to Erin and David is a remainder interest, intended to be disbursed per stirpes. ¶14 Appellee argues that Erin and David's interests in the remainder never vested because Appellee is still alive and, upon their deaths, neither Erin nor David left a lineal descendant. As such, Appellee maintains that the contingent gifts lapsed and that all remaining interests in the Trust's assets flowed to her under Article 5.10 of the Trust.3 ¶15 Appellant claims that because Erin and David were alive at the time of Settlor's death their remainder interests became fully vested and could not lapse. Appellant urges that when Erin and David died, their interests passed to their respective estates, and that she is the ultimate taker of the interests. ¶16 The Court of Civil Appeals agreed with Appellant and found that Erin and David's "heirs" should receive their "shares as representatives of their deceased ancestor." We would agree with this decision if Erin and David had left lineal descendants as required by the Trust term "per stirpes," but they did not. David was not an ancestor of Appellant. The Court of Civil Appeals' opinion erroneously disregards the meaning of the term "per stirpes" and, instead, allows for a right of representation by heirs in general, without regard to the lineage of the taker. ¶17 The Latin term "per stirpes" means "by roots or stocks" and is a method of dividing an estate where the gift is "[p]roportionately divided between beneficiaries according to their deceased ancestor's share." Black's Law Dictionary (10th Ed. 2014). The term comes from the Latin word "stirps" which references a "branch of a family" or "a line of descent." Black's Law Dictionary (10th Ed. 2014). The phrase "lineal descendant" is defined to mean "[a] blood relative in the direct line of descent. Children, grandchildren, and great-grandchildren are lineal descendants. Black's Law Dictionary, (10th Ed. 2014). Spouses are neither blood relatives nor lineal descendants of each other. ¶18 Appellee argues that the Settlor intended the Trust principal to go to her, as his widow, rather than the widow of his grandson. In support, Appellee points to Trust Article 5.10 which provides that where the Trust is terminated under certain circumstances, none of which currently exist here, then the remaining assets of the Trust are to flow to the beneficiary then entitled to the Trust's income, which is currently Appellee. Appellee also points out that the Trust provides for any undistributed income to be disbursed to her estate upon her death. We agree that there is evidence within the four corners of the Settlor's Trust that he would desire his remaining assets to be disbursed to Appellee or her estate. Matter of the Estate of Hixon, 1985 OK 18, ¶ 5, 715 P.2d 1087, 1089-1090. See also 84 O.S.2011, §§ 151 ("A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.") and 84 O.S.2011, §§ 152 ("In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations."). ¶19 Where a trust specifically makes the distribution of a bequest per stirpes, we find that the spouse of a devisee is not a lineal descendant of the devisee and is ineligible to take under a "per stirpes" method of distribution. Because Erin and David died leaving no lineal descendants, their interests lapsed and the Trust principal shall pass, pursuant to the Trust, to the beneficiary of the Trust income. Accordingly, the trial court's decision is affirmed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED. CONCUR: COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, and TAYLOR, JJ. DISSENT: REIF, C.J., COLBERT and GURICH (by separate writing), JJ. FOOTNOTES 1 The Trust provided: 5.02 Disposition if Settlor's Spouse Survives Settlor. If the Settlor's spouse shall survive the Settlor, the Trustee shall divide the balance of the Trust Fund into two (2) separate shares (hereinafter referred to as "Part A" and "Part B") in the following manner: (a) Part A. Part A shall consist of an amount of property equal to the largest amount that can pass free of federal estate tax..Part A shall be held, administered and distributed in accordance with the provisions of Article 5.04 hereof. (b) Part B. Part B (hereinafter referred to as the "Carolyn Ann Collins Dooley Trust") shall consist of all of the remaining assets of the Trust Fund and shall be held, administered and distributed in accordance with the provisions of Article 5.05 hereof. 2 Appellant maintains she did not receive notice of such appointments. 3 Article 5.10 of the Trust provides as follows: "Duration of Trust. Notwithstanding any other provision contained in the Agreement, a trust created herein shall terminate upon the earlier of: (a) the date on which all trust assets have been distributed as provided hereinabove; (b) the date which is twenty-one (21) years after the death of the survivor of any beneficiary in being at the date of the Settlor's death; or (c) the end of the latest time permitted by any rule against perpetuities or remote vesting, or any other law, applicable to such trust. Upon termination of any trust created herein pursuant to clause (b) or (c) of the preceding sentence, all remaining assets of such trust shall be distributed to those persons then entitled to the income from such trust in the proportion that such income is distributable, or if the income is distributable among a class of beneficiaries in the discretion of the Trustee, then equally to the members of such class, regardless of the age which any distribute otherwise entitled shall have attained. GURICH, J., with whom REIF, C.J., and COLBERT, J. join dissenting: ¶1 I must respectfully dissent to the majority decision in the above-styled matter. The majority opinion concludes that the remainder interests of settlor's grandchildren, Erin and David O'Donoghue, were contingent and unvested. Thus, according to the holding, their interests in the trust lapsed when both predeceased settlor's surviving spouse, Carolyn Dooley. Yet, according to the unambiguous language of the trust instrument, Erin or David O'Donoghue's remainder interests were not conditioned on survival; each interest vested immediately upon the settlor's death. Both Oklahoma statutes and our jurisprudence unequivocally provide that remainder interests vest upon the death of a grantor unless a will or trust clearly state otherwise. ¶2 Further, the intent of the settlor in this case was to create a Qualified Terminable Interest Property (QTIP) trust which passed only an income interest to Carolyn Dooley. The existence of QTIP language in the trust instrument is clear evidence the settlor never intended Carolyn Dooley to possess any interest in the trust principal. The purpose of a QTIP trust is to afford a grantor's estate with a significant tax benefit, while still providing the surviving spouse with income for life and maintaining control of the estate's ultimate disposition. The interests of David O'Donoghue and Erin O'Donoghue became vested on the date of settlor's death. ¶3 Future interests in property may be either contingent or vested. A remainder is vested when the interest is (1) given to an ascertained person (i.e., Erin and David Donoghue); and (2) is free from any condition precedent. Conville v. Bakke, 1964 OK 111, ¶ 33, 400 P.2d 179, 188-189; see also Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill, Property, 225 (6th ed. 2006).1 The following narrative clearly demonstrates that Erin and David O'Donoghue's interests in the David L. Dooley QTIP trust were fully vested on the death of settlor: Whether, in any particular case, a remainder is contingent or vested depends on the construction of the language used, as creating a mere possibility of an estate, or as creating an estate. Thus, a transfer of property to A for life, to B for life, and remainder to C vests on the creation of the interest and goes to C, whether or not C is living when the property vests in his possession, as, in order to change such result, there must be a specific reference in the creating instrument indicating that the remainderman must survive the life tenants in order to take. 2 Tiffany Real Property § 323, Westlaw (database updated 2015) (emphasis added). ¶4 We have previously said when a will and trust are executed simultaneously, with each referencing the other, they reflect "one instrument and a scheme of testamentary disposition." Miller v. First Nat. Bank & Trust Co., 1981 OK 133, ¶ 9, 637 P.2d 75, 77 (emphasis added); see also, Black's Law Dictionary (10th ed. 2014) (defining testamentary disposition as "[a] disposition to take effect upon the death of the person making it, who retains substantially entire control of the property until death.") Both the will and trust were executed contemporaneously by David Dooley and are part of one intertwined testamentary scheme. In Oklahoma, testamentary transfers are presumed to vest upon the death of a grantor unless specific language in the will or trust makes the gift conditional. 84 O.S. 2001 § 175 ("[t]estamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death."); Matter of Estate of Westfahl, 1983 OK 119, ¶ 4, 674 P.2d 21, 24. Once vested, a testamentary disposition cannot be "divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose." 84 O.S. 2001 § 176. ¶5 In the present case, paragraph 5.04 in the Dooley trust placed no preconditions on the gifts to the grantor's grandchildren David and Erin. For more than one-hundred years this Court has adhered to the fundamental precept that testamentary gifts are presumed to vest immediately upon the death of the grantor. The Court of Civil Appeals correctly determined that both David and Erin O'Donoghue's remainder interests vested upon the death of the grantor, David Dooley. In reaching their decision, COCA relied on our decision in Moore v. McAlester, 1967 OK 100, 428 P.2d 266. In Moore, 1967 OK 100, ¶¶¶ 31-32, 428 P.2d at 271, this Court found that two sons who died before their sister were not deprived of their interest in their father's estate. This Court held that on the death of their father, both sons had vested interests which could not be "divested by their subsequent deaths before the death of [their sister]." Id; see also Riddle v. Jay, 1960 OK 223, ¶ 13, 356 P.2d 1074, 1077 (holding remainder interest which followed life estate was fully vested, authorizing remainderman to convey her interest by deed); Dannenburg v. Dannenburg, 1953 OK 201, ¶ 32, 271 P.2d 345, 352 (concluding son's share of mother's estate vested on her death and did not lapse despite dying before distribution); Porter v. Porter, 1923 OK 1184, ¶ 7, 222 P. 971, 973 (holding remainder interests of children vested immediately upon father's death). ¶6 The majority looks to the phrase per stirpes to conclude the gifts to Erin and David O'Donoghue were not vested. However, the phrase per stirpes did not impose any limitation on the gifts; rather the phrase merely explained that should either or both die before receipt of their gift, the money or property would inure to the benefit of their heirs by representation. Neither Erin nor David were required by the grantor to have lineal descendants to receive the gifts. More importantly, according to our statutes, any references to heirs, issue, descendents, etc. are not deemed terms of condition or limitation: A testamentary disposition to "heirs," "relations," "nearest relations," "representatives," "legal representatives," or "personal representatives," or "family," "issue," "descendants," "nearest," or "next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person according to the provisions of the article on succession in this chapter. 84 O.S. 2001 § 168. Settlor did not intend for Carolyn Dooley to have any interest in the residue of the QTIP trust. ¶7 The trust instrument executed by settlor provided for the creation of two separate trusts upon his death. The first trust was funded with the amount of money which could be transferred free from estate and gift tax by utilizing the federal unified tax credit and state death tax credit. The second, a QTIP trust, is the one at issue in the present case. ¶8 Section 5.05(e) of the David L. Dooley Trust Agreement provided: It is the intention of the Settlor that [the Carolyn Ann Dooley Trust] is to be qualified terminable interest property [QTIP], as defined in Section 2056(b)(7)(B)(v) [sic] of the [IRC], and it shall be held, administered and distributed accordingly. Accordingly, the Trustee is hereby directed to make the election provided in Section 2056(b)(7)(B)(v) of the [IRC], as amended, and to treat all assets of this Trust as qualified terminable interest property [QTIP] for the purpose of qualifying for the marital deduction allowable in determining the federal estate tax upon Settlor's Estate. (emphasis added).2 A QTIP trust allows a grantor's estate to benefit from the unlimited marital deduction, while still maintaining control of the estate's ultimate disposition. The QTIP affords the surviving spouse with income for life but allows the decedent to control disposition of the residuary estate on the death of the surviving spouse. IRC § 2056(b)(7)(B).3 QTIP trusts are often utilized in second marriages; situations involving a grantor who wishes to continue providing care for his or her surviving spouse, but desires to leave his or her estate to children from a prior marriage. Diane Hubbard Kennedy, 26 Ind. Prac., Anderson's Wills, Trusts & Est. Plan. § 3:117 (2015-2016 ed.) ("The QTIP trust is a significant tool in many estate plans involving second or third marriage situations. This type of a bequest solves the problem where a spouse wishes to take care of his second surviving spouse, but wants to make sure that after the spouse passes away that the assets revert to the children of a prior marriage.").4 As the Fifth Circuit Court of Appeals explained in Estate of Clayton v. C.I.R., 976 F.2d 1486, 1492 (5th Cir. 1992), by enacting the QTIP provisions, a testator could qualify for the marital deduction while furnishing "maximum financial benefits and security for the surviving spouse" and eliminate "the risk that the survivor might waste the property or appoint it to successors other than the children of the testator's first marriage." In the Estate of Shelfer v. C.I.R., 86 F.3d 1045, 1049 (11th Cir. 1996) the Eleventh Circuit Court of Appeals summarized the purpose for establishing the QTIP: Congress became increasingly concerned with the difficult choice facing those in second marriages, who could either provide for their spouse to the possible detriment of the children of a prior marriage or risk under-endowing their spouse to provide directly for the children. In the Economic Recovery Act of 1981, Congress addressed this problem by creating the QTIP exception to the terminable property interest rule. According to the House of Representatives Report, the QTIP trust was designed to prevent a decedent from being forced to choose between surrendering control of the entire estate to avoid imposition of estate tax at his death or reducing his tax benefits at his death to insure inheritance by the children. (emphasis added, citations and quotations omitted). ¶9 As the majority notes, the paramount consideration when construing a trust instrument is the intent of the settlor. In re Will of Dimick, 1975 OK 10, ¶ 10, 531 P.2d 1027, 1030.5 Further, a trust document should be interpreted in favor of the intended beneficiaries. Trust Co. of Okla, v. State ex rel. Dept. of Human Servs., 1991 OK 133, ¶ 13, 825 P.2d 1295, 1303. The plain language of the trust in this case reflects the settlor's clear intent to have the Carolyn Dooley Trust treated as a QTIP. Accordingly, the settlor intended the remainder interests of Erin and David O'Donoghue to vest immediately upon his death. Conclusion ¶10 The primary goal of this Court is to interpret a will or trust in a manner which gives effect to the decedent's intentions. David L. Dooley did not intend to leave the residue of his estate to Carolyn Dooley or her heirs. He could have easily done so by either (1) allowing Carolyn Dooley to withdraw principal from the QTIP trust; or (2) including language which vested the residue in Carolyn Dooley if Erin and David O'Donoghue both were predeceased. Paragraphs 5.04(a) -- (c) included specific terms which caused gifts to Susan Haggard, Janet Haggard and David Haggard to lapse should they predecease the settlor. Had settlor intended the O'Donoghue bequests to lapse, such language would have been included in the terms of the trust. ¶11 Accordingly, the COCA reached the correct conclusion in this case, and that decision should be affirmed. FOOTNOTES 1 The following was taken from Property, Chapter 4, Future Interests: A remainder may be indefeasibly vested, meaning that the remainder is certain of becoming possessory in the future and cannot be divested. Thus: O conveys Blackacre 'to A for life, then to B and her heirs.' B has an indefeasibly vested remainder certain to become possessory upon termination of the life estate. If B dies during A's life, on B's death B's remainder passes to B's [estate, heirs, devisees, etc]. . .(emphasis added). 2 Rec. on Acc. App., Doc. 2, Ex. A. 3 IRC § 2056(b)(7)(B) reads: (B) Qualified terminable interest property defined.--For purposes of this paragraph-- (i) In general.--The term "qualified terminable interest property" means property-- (I) which passes from the decedent, (II) in which the surviving spouse has a qualifying income interest for life, and (III) to which an election under this paragraph applies. To satisfy the "qualifying income interest for life test," the following must be met: (1) all income must be paid to the surviving spouse at least annually; and (2) no person, other than the surviving spouse may possess a power of appointment over the property. IRC § 2056(b)(7)(B)(ii). Paragraph 5.05(e) of the David L. Dooley Trust did not contain a power of appointment; however, this does not preclude the property from meeting the QTIP requirements. see Myron Kove, Amy Morris Hess, George Gleason Bogert, George Taylor Bogert, Bogert's Trusts And Trustees § 275.10, n. 14 (2015). 4 See also Henry J. Lischer, Jr., Donald J. Malouf, Alex E. Nakos, Contributing Author Diann M. Addison, The Marital Fund----Choices As To The Marital Deduction Bequest----Qualified Terminable Interest Property ("Qtip") Trust, 16A West's Legal Forms, Estate Planning § 11.7, Westlaw (database updated 2015): Because the QTIP form of marital bequest allows the testator spouse to control disposition of the remainder interest after the death of the surviving spouse, it is useful in a variety of situations in which testators previously were put to a difficult choice. A client in a second marriage is a good example of a situation in which the QTIP marital bequest is useful. The client might want to pay as little tax as possible at death in order to leave intact the family property for the purpose of supporting the surviving second spouse. At the same time, however, one or both of the spouses might have children by a prior marriage. A QTIP bequest could provide the surviving spouse with an income interest for life, with the remainder going to the children of the decedent's prior marriage. 5 Interestingly, the Dimick case revolved around a sole issue, namely: whether the settlor's daughter possessed a vested interest in a trust, which was "not subject to being divested by her subsequent death prior to actual distribution." Id. ¶ 9, 531 P.2d at 1030. This Court concluded a deceased daughter's share of the trust was vested, despite language which provided for lapsing of the gift should a beneficiary die "prior to the full and complete distribution of all of the corpus of the trust estate herein created." Id. ¶ 1, 531 P.2d at 1029.

4ef38943-d918-4d18-9a62-72e91e52f926

Brown v. Alley

oklahoma

Oklahoma Supreme Court

BROWN v. ALLEY2016 OK 112Case Number: 113000Decided: 11/01/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE ESTATE OF BOBBY JOE BROWN, JR., Deceased. RHONDA BROWN, Plaintiff/Appellant, v. AMI ALLEY, Personal Representative of the Estate of Bobby Joe Brown, Jr., and as Parent and Next Friend of A.B. and K.B., Minors, Defendant/Appellee. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Appellant sought to revoke the letters of administration of appellee, Ami Alley, who was determined to be the surviving spouse of the decedent Bobby Joe Brown, Jr., through a valid common law marriage. Appellant claimed to be the surviving spouse through a valid ceremonial marriage, prior to the common law marriage, with no divorce from decedent. The trial court held in favor of Alley, and the Court of Civil Appeals affirmed. We affirm. AFFIRMED Cameron Cherry, Edmond, Oklahoma, and B. Wayne Dabney, Oklahoma City, Oklahoma, for Appellant, Murry J. Parrish, Forest Lynn Pepper DeVaughn, Oklahoma City, Oklahoma, for Appellee. OPINION WATT, J.: ¶1 The issue in this cause is whether the Plaintiff/Appellant Rhonda Brown is estopped from asserting her status as the surviving spouse of the Decedent, Bobby Joe Brown, Jr. The trial court held that estoppel prevented her from claiming such status, thus preventing her appointment as the Personal Representative of Decedent's estate. On appeal, the Court of Civil Appeals (COCA) affirmed. This Court previously granted certiorari.1 We hold the trial court properly held Appellant is estopped from asserting she should be appointed Personal Representative of Decedent's estate. STANDARD OF REVIEW ¶2 Probate proceedings are matters of equitable cognizance, and on review we must accord deference to the trial court's determination of the facts. The trial judge has the opportunity to observe the conduct and demeanor of the witnesses, and we will not disturb the trial court's findings of fact unless they are clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Carlson, 2016 OK 6, ¶11, 367 P.3d 486, 491; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9, 13. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Appellant Rhonda Brown and Bobby Joe Brown, Jr. were married on December 12, 1995, and three children were born of the marriage. One child is deceased. Rhonda testified that after a few years of marriage, she told Bobby she could no longer stay with him if he did not cease his extra-marital affairs. He did not comply with this condition, and Rhonda moved out of the marital home. They were never divorced through a court proceeding. She moved frequently and, at different times, lived in several Oklahoma cities, as well as in Kansas. Two of her children by a different father were removed by DHS from her home when she lived in Kansas. ¶4 Rhonda testified that after they separated, she and Bobby met numerous times for the purpose of being intimate. She stated Bobby referred to her as his wife to everyone they met. She also stated that they walked arm in arm and were constantly showing affection for each other in public by hugging and kissing. ¶5 After Bobby and Rhonda separated, he began living with Ami Alley on or about July 23, 2004. Two children were born to the couple. Ami testified she and Bobby held themselves out as husband and wife to everyone and established a home together in Perry, Oklahoma. Ami also testified that Bobby came home to her and their children every night and that he told her he loved her.2 ¶6 Rhonda testified she was aware of the relationship between Ami and Bobby and that he was living with her and their two children. Rhonda testified that Bobby referred to Ami as his girlfriend. ¶7 On March 6, 2013, Bobby died in a motorcycle accident. Ami was named Personal Representative of his estate upon the court's finding she was Bobby's surviving spouse in a common law marriage. Rhonda was not sent notice of the proceeding, and Ami did not advise the court of Rhonda's relationship with Bobby. Ami explained that the court asked if there was anybody to object, and no one appeared to do so. She said the court did not ask about Rhonda, and she did not raise the issue. She also testified Rhonda knew about the proceeding but would not give Ami her address.3 Ami also testified that she heard the testimony of a friend of Rhonda's that the friend took Rhonda for a rendevous with Bobby at places where she and Bobby both worked, i.e., "Sooner's Corner", and Taco Mayo. Ami took issue with the testimony, saying: Q. Would those have been times you worked there? A. Yes. Q. Did you ever see any evidence of that? A. No. And if there was evidence of that, my co-workers would have told me. Q. We also heard evidence of Taco Mayo rendezvous. Have you heard in connection with Taco Mayo? A. Yes, I do. I've worked there twice. My first time was when my youngest daughter Kandyce was three weeks old, March of 2006 until August of 2008 when I started working at Sooner's. Q. These alleged rendezvous that happened at Taco Mayo, when you were working there, do you think it's possible you would have had some sort of knowledge of that? A. I would have if it was going on, yes. Q. Somebody would have told you? A. Yes. ¶8 As noted above, it is undisputed that Rhonda and Bobby were never divorced in a judicial proceeding. Rhonda testified that, a short time before Bobby's death, she participated in a ceremonial marriage with Jimmy Shawn Treece. She referred to the marriage as a "sham" because she never intended to be married to Treece. Rhonda testified she met Jimmy while they were both living in a state-supported shelter when they were minors. She stated that when she was 15 years old, she and Treece agreed they would marry each other if one or the other was in need of help at some time in the future. Rhonda testified that after Treece was incarcerated, he finished his probation and parole, upon approval by the authorities, at his grandparents' home. They took care of him and supported him. Although he wanted to move out, the only way his grandparents would help him financially was to "show some stability and get married . . . ."4 Rhonda testified she was willing to help him. On August 31, 2012, they went to his grandparents' home in Checotah, Oklahoma, to tell them she and Jimmy were getting married. His grandparents immediately contacted a minister who performed the ceremony the same day at a church in Checotah. Rhonda signed the marriage license as "Rhonda Ann Treece."5 After the ceremony, Jimmy took her home. She testified she removed the wedding ring. She placed it and the papers they received in the glove compartment of Treece's car. She stated she spoke to him on two occasions, but she never saw him again. She testified she never changed her name and did not "recognize that name as a legal marriage."6 She testified she never filed divorce papers but was "under the impression" the marriage was annulled.7 She stated she does not intend to be married to Treece; she only did it to help him out. Treece did not testify. ¶9 In the judgment denying Rhonda's Petition and Motion to Revoke Letters of Administration, the trial court found Bobby and Ami began their relationship in 2004 and that it lasted until Bobby's death; that their relationship met the requirements of a common law marriage;8 and that Rhonda married Treece in a ceremonial, traditional marriage in 2012. The court based its decision to deny Rhonda's motion to revoke the letters of administration on the issue of estoppel, rather than the legal classification of her marriage to Bobby. The court concluded: The Oklahoma Supreme court case of Matter of Estate of Allen, 1987 OK 45 (1987) is nearly on point with the case at bar. While there was [a] great deal of conflicting testimony about the post separation relationship between Rhonda and the Decedent, the real issue is whether Rhonda should be estopped from claiming surviving spouse benefits and not so much the legal classification of her marriage to the Decedent. Estoppel is a bar raised by the law which precludes one from alleging or from denying a certain fact or state of facts in consequence of the previous allegation, denial, conduct, or admission or in consequence of a final adjudication of the matter by a court of law. Allen quoting from Wisel v. Terhune. 201 Okl. 231, 204 P.2d 286, 290 (1949). The formal ceremonial marriage by Rhonda to Treece is, by itself, a previous denial vis a vis her marriage to the Decedent. Despite her unsubstantiated testimony to the contrary, a later marriage is in fact, a denial of any prior marriage. DISCUSSION AND AUTHORITY ¶10 The Oklahoma Constitution contains a prohibition against polygamous or plural marriages.9 Such marriages are void ab initio.10 Also, we recognize there is no common law divorce. However, in this case, we are not explicitly determining whether our laws defining and regulating marriage in Oklahoma were violated, but whether the doctrine of estoppel precludes Rhonda from being declared Bobby's surviving spouse and the Administrator/Personal Representative of his estate. We hold that it does. ¶11 In In re Estate of Allen, 1987 OK 45, 738 P.2d 142, this Court examined the multiple marriages of a couple who were married, divorced, remarried and then permanently separated, with no divorce. Wife cohabited with another man ("second husband"), and four children were born to the couple. Second husband filed for divorce and sought custody of the children. Wife admitted a common law marriage and also sought custody of the children. The court found a common law marriage existed and entered a divorce decree. Meanwhile, first husband married another woman who later died. No children resulted from that marriage. Then, first husband died. He left his estate to his son from an earlier marriage, and Wife petitioned for letters of administration and appointment as personal representative as surviving spouse. She argued she was still married to first husband because there was no divorce. The trial court agreed, but this Court held that she was estopped to claim the status of surviving spouse to her first husband. We reasoned that she had had an opportunity for 13 years to assert a marital relationship with her first husband, but she never did. We stated: Given the facts in this case, appellee is estopped from asserting her continual marital status with the decedent. Appellee had the opportunity for thirteen years to assert her relationship with the decedent, but declined to do so until the decedent's death. She cannot "speak" now after she has been silent for so long. Allen, 1987 OK 45, ¶9, 738 P.2d 142, 144. The Court described the theory of "estoppel" as, "if you do not speak when you ought to speak, you shall not speak when you want to speak." Id. This Court held that because of her previous conduct, the appellee wife should have no claim to her former husband's estate, despite the lack of a divorce. ¶12 In the present case, the facts which were alleged by the respective parties were disputed. Rhonda testified that her relationship with Bobby never ended until he died. She related instances of his declarations of love to her, their intimacy, and his visits to her which included numerous overnight stays. This testimony about their relationship was confirmed by her witnesses who alleged they witnessed the affection shown between Bobby and Rhonda. However, the evidence of the continued relationship between them stood in stark contrast to the testimony of Ami Alley who was Bobby's professed common law wife, beginning in 2004. Ami's testimony that Bobby was with her at home every night and that he did not travel to see Rhonda, except the times when Ami was present totally contradicts Rhonda's testimony. The trial court was trier of fact and determined the post-marriage events in favor of Ami. We do not find the court's factual findings are clearly contrary to the weight of the evidence or contrary to law. See In re Estate of Carlson, and In re Estate of Holcomb, supra. The evidence in support of the court's determination included witnesses who were told that Ami and Bobby were married and who witnessed their life together for nearly ten years. Moreover, Rhonda's testimony that she gave Bobby an ultimatum about his extra-marital affairs in 1999 indicates her willingness to separate from him, rather than to endure his alleged infidelity. ¶13 Finally, the subsequent marriage to Jimmy Treece, which is substantiated by a copy of the marriage license and by the testimony of Rhonda herself, is further evidence that she considered her marriage to Bobby was at an end. While this Court is aware of Rhonda's articulated reason for her marriage to Jimmy Treece, i.e., to help him out, her actions in engaging in a "sham" marriage to defraud Treece's grandparents offer little to persuade the Court that equitable estoppel should not be applied against her. Moreover, she and Bobby had ceased living as husband and wife for several years, during which he lived with another woman and with whom he had two children. Rhonda's signature on the marriage license, dated August 31, 2012, as "Rhonda Ann Treece"11 and her admission that she and Treece had been intimate before the marriage are further evidence Rhonda believed her marriage to Bobby had terminated. ¶14 We note that in a previous case, Darrough v. Davis, 1928 OK 730, 135 Okl. 263, 273 P. 309, similar to Allen, supra, the deceased person was the party who was abandoned during the marriage, while in this case, the deceased person (Bobby) is the party who engaged in a common law marriage relationship without officially ending his marriage to Rhonda. However, the evidence which was presented at the hearing, although disputed, supports the court's finding that Rhonda's subsequent marriage to Treece, despite her disavowal of it as a valid marriage, is an act which was contrary to Rhonda's expressed intent to remain married to Bobby at the time. CONCLUSION ¶15 As the fact finder who observed the testimony, the trial court was in the best position to consider the demeanor and credibility of the witnesses who testified. Ami's testimony as to the alleged common law marriage and Bobby's presence at home every night contradicted Rhonda's testimony that he spent numerous nights with her away from home. The testimony that Rhonda was taken by a friend to meet Bobby at a place where he and Ami both worked appears to be disputed because Ami testified she would have been told by fellow employees that this occurred. Finally, Rhonda's testimony that she participated in a ceremonial marriage ceremony with Jimmy Treece, as evidenced by a copy of the marriage license entered into evidence, had to be weighed against Rhonda's testimony that the marriage was meaningless. We find the trial court's determination of the facts is not against the weight of the evidence. ¶16 AFFIRMED. REIF, C.J., WATT, WINCHESTER, EDMONDSON, GURICH, JJ., BASS, S.J. - CONCUR COMBS, V.C.J. (by separate writing), KAUGER, TAYLOR, JJ. - DISSENT COLBERT, J. - RECUSED FOOTNOTES 1 The companion case, appeal number 113,001, was closed on December 11, 2015. Mandate issued on January 5, 2016. 2 Ami testified she had no reason to question his love for her. She said, "I trusted him every night and he was at home every night. If he was away from my house for long, me and my children would be asking questions." Transcript of hearing of May 22, 2014, page 110. 3 Ami stated: "Rhonda was given notice. I have many text messages on my cell phone trying to get an answer from her and she refuses to give me an address, refused to come to court." (Transcript of hearing of May 22, 2014, page 116). 4 Transcript, page 30, May 22, 2014, hearing. 5 Transcript, page 51, May 22, 2014, hearing. 6 Transcript, page 32, May 22, 2014, hearing. 7 Transcript, page 57, May 22, 2014, hearing. 8 A common law marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating arrangement [sic] by cohabitation and open assumption of marital duties, and such relationship must be established by evidence that is clear and convincing. See gen., Mueggenborg v. Walling,1992 OK 121, 836 P.2d 112, citing Rath v. Maness, 1970 OK 111, ¶15, 470 P.2d 1011, 1013. 9 See Oklahoma Constitution, Art. 1, §2: [P]olygamous or plural marriages are forever prohibited. 10 See Whitney v. Whitney, 1942 OK 268, 134 P.2d 357. 11 She signed "Rhonda Ann Treece" on the line above "Female's Name to be known as - Signature". COMBS, V.C.J., dissenting, with whom KAUGER and TAYLOR, JJ., join: ¶1 I disagree with the majority's determination that Appellant is estopped from asserting she should be appointed Personal Representative of Decedent's estate. Appellant, as the surviving spouse of the Decedent, has a prior right of appointment pursuant to 58 O.S. 2011 § 122, that is unaffected by the void ceremonial and common law marriages later attempted by herself and Decedent, respectively. Accordingly, I respectfully dissent. ¶2 Marriage is a personal relationship which arises out of a civil contract. It requires the consent of parties who must be legally competent to contract. Title 43 O.S. 2011 § 1. One of the requirements for legal competency to enter into the marriage contract is that the individual not be already married. Title 43 O.S. 2011 § 3(A). See Brokeshoulder v. Brokeshoulder, 1921 OK 412, Syllabus, 204 P. 284. ¶3 Oklahoma does not recognize the concept of common law divorce. See Chapman v. Parr, 1974 OK 46, ¶32, 521 P.2d 799. Divorce is wholly a creature of statute and the absolute power to prescribe conditions relative thereto is vested in the state. Williams v. Williams, 1975 OK 163, ¶9, 543 P.3d 1401. The statutory grounds of divorce are exclusive, and the courts have authority in this field to do only that which is prescribed by the legislature. The legislature has vested the courts of this state with ultimate control over the dissolution of marriage. Williams, 1975 OK 163, ¶10. It is undisputed in this cause that Appellant and the Deceased were married in 1995 and never divorced by court proceeding. Unquestionably, neither of them were legally competent to enter into other marriages, be they ceremonial or common law. ¶4 Further, the Oklahoma Constitution specifically prohibits plural marriages. Okla. Const., Art. 1, § 2 provides in pertinent part: "[p]olygamous or plural marriages are forever prohibited." This Court has determined previously that plural marriages, being prohibited by the constitution, are void ab initio and such a marriage, whether ceremonial or common law, does not confer on either of the parties any of the rights or privileges of a valid marriage. See Tatum v. Tatum, 1982 OK 62, ¶18, 736 P.2d 506; Whitney v. Whitney, 1942 OK 268, Syllabus, ¶¶12-18, 134 P.2d 357. The trial court erroneously determined that the relationship between Decedent and Appellee met all the requirements of a common law marriage. One of those requirements is legal competency to enter the marriage contract, which Decedent lacked. Mueggenborg v. Walling, 1992 OK 121, ¶5, 836 P.2d 112; Rath v. Maness, 1970 OK 111, ¶15, 470 P.2d 1011 (criticized by Mueggenborg, but on other grounds). ¶5 Despite her legal status as Decedant's wife at the time of his death, the majority determines that Appellant is estopped from asserting she should be appointed Personal Representative of Decedent's estate. Equitable estoppel is a legal concept which bars a party from alleging or denying certain rights which might otherwise have existed because of the party's voluntary conduct. Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, ¶30, 119 P.3d 192; Hoar v. Aetna Casualty & Surety Co., 1998 OK 95, ¶13, 968 P.2d 1219; Apex Siding & Roofing Co. v. First Federal Savings & Loan Assoc. of Shawnee, 1956 OK 195, ¶6, 301 P.2d 352. It requires good faith reliance upon a representation or position by the party asserting estoppel. Sullivan, 2005 OK 41, ¶30; Hoar, 1998 OK 95, ¶13; First State Bank v. Diamond Plastics Corp., 1995 OK 21, ¶39, 891 P.2d 1262. This Court noted in detail the requirements for equitable estoppel in Sullivan, where we stated: The essential elements necessary to establish equitable estoppel are: first, there must be a false representation or concealment of facts; second, it must have been made with actual or constructive knowledge of the real facts; third, the party to whom it was made must have been without knowledge, or the means of discovering the real facts; fourth, it must have been made with the intention that it should be acted upon; and fifth, the party to whom it was made relied on, or acted upon it to his or her detriment. Sullivan, 2005 OK 41, ¶31 (footnotes omitted) (citing Burdick v. Independent School Dist. No., 52 of Oklahoma County, 1985 OK 49, ¶13, 702 P.2d 48; Midland Mortg. Co. v. Sanders England Investments, 1984 OK 10, ¶6, 682 P.2d 748; Walker & Withrow, Inc. v. Haley, 1982 OK 107, ¶7, 653 P.2d 191). ¶6 The requirements of equitable estoppel have not been met in this cause. Appellee was aware of Appellant and Decedent's marriage when she was named personal representative. As the majority notes: "[Ami] said the court did not ask about Rhonda, and she did not raise the issue." Estoppel is used to prevent injustice and promote justice, and should not be used to work a positive gain to a party. Sullivan, 2005 OK 41, ¶30; First State Bank, 1995 OK 21, ¶40. ¶7 The majority's reliance on In re Estate of Allen, 1987 OK 45, 738 P.2d 142, is misplaced because that cause is factually distinguishable. In Allen, this Court's application of the doctrine of equitable estoppel to bar a wife's claim for a share of her deceased husband's estate was primarily based on the wife's assertion of a later common law marriage in a divorce proceeding, resulting in a non-appealable divorce decree even though the common law marriage was void ab initio. Allen, 1987 OK 45, ¶5. The Allen Court stated: The predicate facts in this case constitute affirmative acts which give rise to a legal change in appellee's marital relationship with decedent. In particular, appellee's cohabitation with Gould and her affirmative recognition of her subsequent common law marriage to Gould. We therefore find appellee's prior assertion of legal status and judicial finding and decree from which there was no appeal operates as a bar to her later inconsistent claim. 1987 OK 45, ¶7 (emphasis added). In Allen, the application of equitable estoppel rested on the wife's assertion in a court of law that she was married to someone else, before trying to assert a claim on her real husband's estate, rather than the act of attempting a void ab initio marriage in and of itself. ¶8 Even were it not distinguishable, I believe Allen was wrongly decided and should not be followed by this Court, for two reasons. First, the Court's decision in Allen is inconsistent with earlier cases concerning the application of equitable estoppel to estate claims. See In re Estate of Cox, 1923 OK 397, ¶10, 217 P. 493 ("Although the wife deserts her husband, and enters into a bigamous marriage with another, with whom she lives until her husband's death, in the absence of a statute, she cannot be precluded or estopped from asserting her interest in his estate."); Brokeshoulder, 1921 OK 412, ¶64-65 (expressing willingness to apply estoppel only between parties to an illicit marriage when one party concealed their incapacity). See also Allen, 1987 OK 45, ¶¶1-6 (Kauger, J., dissenting). Second, the Allen Court partially based its decision on dicta from a prior opinion, Tatum v. Tatum, 1982 OK 62, 736 P.2d 506, specifically this statement: We did, however, state affirmative acts may indicate a change in character of the marriage relationship and that such legal change could manifest itself through some outward recognition that the relationship had terminated. We noted affirmative acts which might be recognized as changing the legal status such as suing for divorce or separate maintenance, active resistance to reconciliation efforts or cohabitation with another. Such indicia were found absent in that case. Allen, 1987 OK 45, ¶6 (citing Tatum, 1982 OK 62, ¶14). Such reasoning is inconsistent with the statutory nature of termination of the marriage contract, and the requirement divorce be adjudicated by the courts. ¶9 The majority's decision, and reliance on Allen, is effectively a determination that Appellant's void attempted ceremonial marriage to Treece somehow altered her legal relationship as Decedent's wife at the time of his death. It did not, as Oklahoma law concerning plural marriages and capacity to enter the marriage contract, discussed above, perfectly illustrate. Framing the issue as one of equitable estoppel does not alter this, as Allen is inapplicable and the modern requirements for equitable estoppel emphasized by this Court on numerous occasions have not been met. Appellant, as the surviving spouse of the Decedent, has a prior right of appointment pursuant to 58 O.S. 2011 § 122, and should not be estopped from asserting that right because she was separated from Decedent and entered into a void ab initio ceremonial marriage with someone else.

0c2168ea-e56d-4f11-b05b-05721ae7698e

Mustang Run Wind Project, LLC v. Osage City Bd of Adjustment

oklahoma

Oklahoma Supreme Court

MUSTANG RUN WIND PROJECT, LLC2016 OK 113Case Number: 113463Decided: 11/01/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MUSTANG RUN WIND PROJECT, LLC, Plaintiff/Appellee v. OSAGE COUNTY BOARD OF ADJUSTMENT, Defendant/Appellant, v. THE OSAGE NATION, Counter-Appellant. APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY ¶0 Mustang Run Wind Project filed an application with the Osage County Board of Adjustment for a conditional use permit to operate an energy facility using wind turbines. The Board denied the application and Mustang filed an appeal in the District Court for Osage County. The Honorable Robert G. Haney, District Judge, for Ottawa and Delaware Counties was assigned to hear the matter after judges in Osage County recused. The Osage Nation and Osage Minerals Council intervened. A trial de novo was held and Judge Haney ordered the County Board of Adjustment to issue a conditional use permit. The Osage County Board of Adjustment and the Osage Nation appealed to this Court and the appeal was retained. We hold the Osage County Board of Adjustment possesses authority to grant conditional use permits, the trial judge's findings are not against the clear weight of the evidence, and affirm the trial court's judgment requiring the Board of Adjustment to issue a conditional use permit with any additional reasonable conditions. JUDGMENT OF THE DISTRICT COURT AFFIRMED Joel L. Wohlgemuth and Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Plaintiff/Appellee Mustang Run Wind Project LLC. R. Tom Hillis, Assistant District Attorney of Osage County, Pawhuska, Oklahoma, for Defendant/Appellant Osage County Board of Adjustment. John W. Moody, Tulsa, Oklahoma for Counter Appellant, Osage Nation. EDMONDSON, J. ¶1 Mustang Run Wind Project, LLC, (Mustang) filed an application with the Osage County Board of Adjustment for a conditional use permit involving between 9,406 and 9,453 acres of land. Mustang proposed to use the land for placing sixty-eight wind turbines on less than 150 acres and generating electricity.1 Public meetings on the proposed wind energy facility were held in April and May 2014. The proposed facility is close to another "wind farm" which had obtained a permit three years previously. Mustang's application included land zoned for agricultural use and was then being used for agriculture and ranching. The County Board of Adjustment denied the application. ¶2 Mustang filed an appeal in the District Court for Osage County. The Osage Nation and Osage Minerals Council filed a motion to intervene in the District Court proceeding. The motion to intervene was granted and they filed a trial brief. ¶3 At a trial de novo counsel for the parties presented argument and relied upon evidence submitted to the County Board of Adjustment. The trial judge's five-page order found for Mustang and ordered the Board of Adjustment to issue a conditional use permit to Mustang. Osage County Board of Adjustment and Osage Nation filed an appeal to this Court and we retained the appeal. I. ¶4 Osage Nation argues the Osage County Board of Adjustment "had no power or authority to approve a conditional use permit" because such power was not given by the Legislature to counties. The Osage Nation invokes language of unauthorized legislative power exercised by a county board of adjustment in providing a special use permit and this district court's review of the board's decision on a request for such a permit. Osage Nation identifies five "county zoning and enabling acts" of the Legislature and argues that none of these statutory schemes allows a county board of adjustment to grant a special use permit.2 ¶5 The Osage Nation's argument centers on both 19 O.S. 2011 §§ 865.63 and 866.23. Osage Nation argues § 866.23 gives a county board of adjustment "only three powers," to (1) decide an appeal where an error of law has occurred, (2) decide requests for map interpretations or decisions on other special questions, and (3) authorize a variance from zoning that would cause a hardship based upon the shape or topography of property. Appeals to the County Board of Adjustment may be taken by any person aggrieved or by a public officer, department, board or bureau affected by any decision of the County Inspecting Officer in administering the county zoning regulations or building line and setback regulations. Such appeals shall be taken within a period of not more than ten (10) days, by filing written notice with the County Board of Adjustment and the County Inspecting Officer, stating the grounds thereof. An appeal from the County Board of Adjustment shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken shall certify to the Board of Adjustment that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. The County Board of Adjustment shall have the following powers and it shall be its duty: 1.To hear and decide appeals where it is alleged that there is error of law in any order, requirement, decision or determination made by the County Inspecting Officer in the enforcement of the county zoning regulations. 2. To hear and decide requests for map interpretations or for decisions on other special questions upon which it is authorized to pass by the regulations adopted by the Board. 3. Where, by reason of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under this act would result in peculiar and exceptional difficulties to, or exceptional and demonstrable undue hardship upon, the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such demonstrable difficulties or hardships, provided such relief can be granted without substantially impairing the intent, purpose, and integrity of the zone plan or other element of the comprehensive plan as embodied in the zoning regulations and map. In exercising the above powers, such Board of Adjustment may, in conformity with the provisions of this act, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. In acting upon any appeal, such Board of Adjustment shall, in its consideration of and decision thereon, apply the principles, standards and objectives set forth and contained in all applicable regulations, ordinances and resolutions and in the comprehensive plan. 19 O.S.2011 § 866.23. Section 866.23 is part of the City-County Planning and Zoning Act, 19 O.S. 2011 §§ 866.1-866.35. The language in § 865.63 is part of the County Planning and Zoning Act, 19 O.S.2011 §§ 865.51-865.69. The language in § 865.63 of the County Planning and Zoning Act is not identical to the language in § 866.23 referencing a City-County Planning and Zoning Commission.3 Because the materials presented in the appellate record appear to show the existence of a cooperative municipal and county planning commission, i.e., "Pawhuska-Osage County Planning Area Commission" which regulates zoning in all of Osage County including incorporated areas, and our conclusion § 866.23 provides authority for conditional use permits, we need not examine § 865.63. ¶6 The Osage Nation points to three statutes relating to municipal boards of adjustment, two allowing "special exceptions"(11 O.S. §§ 44-104 and 44-106) and one a "specific use permit" (11 O.S. § 43-113); and argues that "if the Legislature intended for counties to have the power to grant a specific or conditional use permit, it would have amended the City-County Planning and Zoning Act in 2003 when it amended the Oklahoma Municipal Code to grant the power to the governing body of a municipality to approve specific use permits." ¶7 The language in § 866.23 relied on by the Osage Nation also appears in 19 O.S.2011 § 863.21. This language has appeared continuously in county zoning statutes since the various forms of comprehensive county zoning legislation were enacted in 1949.4 The argument of the Osage Nation is each and every county adjustment board does not have, and has never had, the authority to grant a special or conditional use permit. In other words, the Osage Nation claims that no owner of real property in Osage County may obtain any type of conditional use permit from a county board of adjustment. ¶8 Osage Nation also concludes this lack of authority to issue a conditional use permit by a county board of adjustment also strips such authority from a District Court to approve a conditional use permit in a statutorily authorized review of the board's decision in a District Court trial de novo.5 We disagree. ¶9 A zoning variance and a special permit granted by a local government entity are historic procedures designed to (1) act as a safety valve when applying a zoning regulation to "prevent governmental restrictions from operating in such a manner that the burden on an individual landowner amounts to a taking," and (2) adjust application of ordinances impacting upon an owner's proposed use of property unforeseen when ordinances were created.6 Flexibility in land-use regulation has been provided in many states by procedures for granting (1) area variances, a deviation from strict compliance with physical standards such as setbacks, lot size and frontage, (2) use variances, which allow use prohibited by zoning regulations, and (3) special use permits (or conditional use permits) where the use of the property is conditionally allowed by ordinance.7 Historically, some states distinguished a zoning "board of adjustment" which could grant area/use variances and special permits and a zoning "board of appeal" which typically heard appeals from zoning administrators.8 Section 866.23 appears to combine the functions of the historic board of appeal which heard appeals from a zoning official and a board of adjustment which adjusted the application of zoning ordinances for a particular situation. It authorizes a board of adjustment : "1.To hear and decide appeals . . . [and] 2. To hear and decide requests . . . for decisions on other special questions upon which it is authorized to pass by the regulations adopted by the Board." ¶10 The Pawhuska-Osage County Planning and Zoning ordinances adopted by the Osage County Board of County Commissioners (1) state they are adopted pursuant to 11 O.S. §§ 101-109 (Chapter 43), & 19 O.S. 866.1-866.36 (Ordinance §1.1), (2) establish areas allowing conditional use permits (Ordinance 1.7.1), (3) create a Board of Adjustment (Ordinance § 6.1) and (4) authorize the Board of Adjustment to grant conditional use permits (Ordinance § 6.5.2). A board of adjustment authorized by Pawhuska-Osage County Planning and Zoning ordinances to hear an application of a special use permit is within the board's statutory authority to hear and decide requests for a decision authorized by § 866.23. Boards of adjustment were historically given the power to "adjust" the application of zoning ordinances and the board of adjustment's authority in this case to issue a conditional use permit corresponds to that historic role. Our conclusion is consistent with viewing § 866.23 in harmony with common sense, reason, and our State Constitution, and as an effort by our Legislature to provide Oklahoma landowners a procedure seeking approval for uses of their property that would otherwise be disapproved upon application of zoning ordinances.9 ¶11 We reject the claim made by Osage Nation that a property owner in Osage County may not obtain a conditional use permit for proposed uses of his or her property. Because we reject this argument we also reject the claim a District Court lacks authority to review a decision made by a county board of adjustment. II. ¶12 Osage County Board of Adjustment argues (1) the trial judge failed to consider Osage County Zoning Ordinance, Section 6.5.2, which is used by the Board of Adjustment in deciding to grant a conditional use permit; and (2) the factors considered by the Board show a discretion to deny a conditional use permit when the applicant satisfies the minimum requirements for obtaining a permit. ¶13 Osage County Board of Adjustment's appellate brief does not refer to the record on appeal for the substance of the ordinance or to any argument relating to judicial notice of a county ordinance. An examination of the trial court record on appeal shows a filing by Mustang which has attached an uncertified and undated photocopy of a document purporting to represent a portion of the Pawhuska Osage County Planning Area: Zoning Ordinance, and containing Section 6.5.2 (8).10 The Osage Nation's objection before the Board of Adjustment contains material which appears to be uncertified photocopies of certified photocopies of the ordinance.11 We need not address (1) whether the photocopies of the ordinances were official records in accordance with 12 O.S.2011 §§ 2902 & 3005,12 or (2) issues relating to judicial notice,13 or (3) the allocation of the burden to present the ordinances in a judicially cognizable form in either this appeal14 or in a District Court trial de novo,15 because a court may rely upon facts not in dispute which are admitted or stipulated in briefs.16 Due to all parties' reliance on similar language for § 6.5.2 we have addressed this argument by the Board. ¶14 The argument is simply: the trial court did not cite to ordinance 6.5.2 in its order, so the trial court must not have considered it when making its decision. Board argues it has authority to consider "the general welfare" of the people of Osage County when making its decision and this was not considered by the trial court. Section 6.5.2 states in part: . . . The Board shall make written findings certifying that the application complies with the pertinent individual conditions of use as set forth in Article 3. That any additional conditions of use specified in the granting of the permit are compatible with the general provisions of these regulations, as well as the provisions for the district in which such use is permitted, and that satisfactory provisions and arrangements have been made concerning the following where applicable: (1) Safety of the motoring public and of pedestrians using the facility and the are immediately surrounding the site. (2) Safety from fire hazard and measures for fire control. (3) Protection of adjacent property from flood or water damage. (4) Noise producing elements and glare of vehicular and stationary lights and effects of such lights on the established character of the neighborhood. (5) Location, lighting, and types of signs and relation of signs to traffic control and adverse effects on adjacent properties. (6) Street size and adequacy of pavement width for traffic reasonably expected to be generated by the proposed use around the site and in the immediate neighborhood. (7) Adequacy of parking as determined by requirements of these regulations for off-street parking facilities in the use district in which the site is located; location of ingress and egress points for parking and off-street loading spaces, and protection of public health by surfacing and all parking areas to control dust. (8) Such other measures as will secure and protect public health, safety, morals, and general welfare. During one proceeding the trial judge listed what he understood to be all objections made against Mustang's project, asked counsel if he had missed anything which needed to be added to that list for his review, scheduled trial briefs, and provided an opportunity if counsel wanted to call witnesses presenting new material.17 The trial judge's order states he "made known to the parties that I was accepting all previous testimony, all pleadings and any other evidence that was presented at the September hearing date from either the parties or any other resident or citizen who wished to do so."18 ¶15 The trial judge's order addressed objections to Mustang's project which related to the project's effect on: (1) mineral interests owned by the Osage Nation, (2) eagles, prairie chickens, and/or birds, (3) the Tallgrass Prairie and/or the views of the area of the Osage Nation Heritage Trail Byway. The judge also reviewed objections concerning decrease in neighboring land values, and presence of towers which "may be blown over, cause fires and/or throw ice off turning blades," and the effect of a project when "there may be Indian burial sites and/or historical artifacts." ¶16 The trial judge stated he had reviewed the transcript of the public meetings, and the pleadings and documents in the District Court proceeding. His order states: "That at those meetings the Petitioner [Mustang] presented its application and without question showed it had complied with all requirements for the issuance of a permit."19 ¶17 The trial judge made specific findings of fact concerning objections relating to Mustang's project and the presence of eagles and the greater prairie chicken population. He characterized as "pure speculation" the claim an eagle could fly into a wind turbine blade and die. He noted the absence in the record of any scientific study on the issue, and no agency charged with preservation of eagles had objected to the project. He determined there was no evidence showing an adverse effect upon the prairie chicken population by Mustang's project. ¶18 He compared the "small footprint of the turbines" to the footprint of drilling rigs or a tank battery, and questioned the parties' argument concerning the negative impact on viewshed of an area including wind turbines where the Osage Nation "requires so many wells be drilled in this area." He noted this small footprint in an area where oil drilling occurs and denied the objection based upon the viewshed of the Tallgrass Prairie and the Osage Nation Heritage Trail Byway. The trial judge found the allegation of harm to mineral interests to be "without merit." ¶19 The trial judge made a finding "There was no evidence that any burial sites and/or Indian artifacts are, were, or ever were in the area covered by the leases" and characterized this argument by the parties as "pure speculation." ¶20 The trial judge noted the use of adjoining property for cattle and horses. He determined that "the wind farm would have no effect at all on use of adjoining property" and "any objection as to decreased property values is pure speculation." The trial judge also considered the Osage Nations' argument that the Osage County Board of Adjustment did not have authority to approve or reject Mustang's project. He denied this objection. The trial judge's findings include the following. The Court has reviewed the statements of the Board of Adjustment made when they denied the permit as no written findings were made herein. The best the Court can determine is the Board did not think that a wind farm fits within their "vision" for Osage County and/or for adjacent landowners. This Court finds the vision concept to be amorphous, and without a foundation to be relied upon. It appears some members of the Board were more concerned with adjoining landowners than with the rights of the surface owners to use their property in a lawful manner and receive compensation therefore. The trial judge noted the positive benefit of increased revenue to the Shidler School District from Mustang's project, and he compared the increased revenue Shidler District would receive to the revenue currently received by another school district.20 He noted "both the Federal government as well as the State of Oklahoma have made energy production thru wind power a priority."21 The trial judge noted a conditional use permit had been granted for another wind farm in the same area "two to three years earlier [and] it seems inconsistent for one board to say yes and a subsequent board to say no for the same area with no definite reason therefore."22 ¶21 The police power of the state operates when necessary to protect the health, morals, safety, and general welfare of the public.23 The power to enact and enforce zoning laws is derived from a governmental entity's police powers.24 The phrase "general welfare of the public" encompasses more than public health, safety and morals regulations. In the context of land use the phrase includes consideration of such concepts as natural scenic beauty, quiet seclusion for residents of the community, and the economic welfare of the landowners and the community as a whole.25 ¶22 As observed by the U. S. Supreme Court in 1995, "land use restrictions aim to prevent problems caused by the 'pig in the parlor instead of the barnyard.'"26 Some of the objections raised to Mustang's project treat the wind turbines as the proverbial pig in the parlor with allegations that wind turbines upset the natural scenic beauty and have an adverse impact on wildlife. These are claims based upon the "general welfare" of the community. The Board's trial brief in the District Court argued for the application of Ordinance 6.5.2 by the trial court.27 The trial judge's order denied these claims based upon the evidence before him. The trial judge considered and adjudicated the "general welfare" objections although he did not expressly cite Ordinance 6.5.2 in the order. ¶23 The Board of Adjustment's allegation of error includes the concept that the form of the trial court's order is erroneous because no citation of the ordinance appears on the face of the order. Historically, the form of a judgment did not negate it's legal vitality when the court record shows the order was intended to be a judgment, and it could be determined (1) whom the judgment was in favor of, (2) whom against, and (3) what the court ordered or decreed should be done, together with the amount of recovery, if there was a money judgment.28 While the particular form of a trial court order may be required in certain instances,29 an appeal from the Board of Adjustment to a District Court pursuant to 19 O.S. § 865.64 contains no unique requirements for the form of the judgment rendered by the District Court.30 We additionally note that proceedings in a District Court on an appeal from a Board of Adjustment in zoning matters are generally characterized as being equitable in nature,31 and an adjudication in equity values substance over form.32 ¶24 Osage County Board of Adjustment cites no authority or public policy for requiring a trial court to cite an ordinance when the trial court record clearly shows the ordinance was before the trial court to consider and the court's adjudication included a party's objections based upon applying the ordinance. We decline to elevate form over substance and this assignment of error is without merit. ¶25 The Board makes a similar argument and argues in its appellate brief the order of the trial court does not "specifically cite" an Osage County Wind Ordinance. Again, appellant's argument is that the ordinance is not cited, and thus must not have been applied and this failure necessarily shows trial court error. Appellant does not cite the appellate record where this ordinance occurs or the effect of the ordinance's application to this controversy. Mustang's trial court brief discusses the Wind Energy Ordinance and has attached thereto an uncertified photocopy of material purporting to be the Wind Energy Ordinance which corresponds to statements made by the Osage Nation.33 The Osage Nation also presented uncertified photocopies of the ordinances to the trial court. We construe the statements by the parties in their appellate briefs and submissions in the trial court as recognizing the substance of the Wind Energy Ordinance as that appended to Mustang's trial court brief and Osage Nation's objection before the Board of Adjustment.34 ¶26 Mustang's brief argues the ordinance provides "land in Osage County may be utilized for construction of wind farms, and "the Board of Adjustment has authority to grant conditional use permits for wind energy projects."35 The purpose of the Osage County Wind Energy Ordinance "is to establish minimum requirements and regulations for the placement, construction, and modification of Wind Energy Facilities...."36 The ordinance includes various requirements such as (1) minimum distances of turbines from residences, public roads, and storage buildings, (2) blade height, (3) color of the turbines, (3) lighting, (4) signage, (5) access to the turbines themselves as well as locked gated roads, (6) soil erosion, (7) system maintenance, (8) and a required agreement with the Osage County Commission for maintenance and repair of roads due to additional wear caused by the construction and maintenance of a wind energy facility. ¶27 Mustang's trial brief argues that the Board of Adjustment recognized Mustang had satisfied federal and state requirements as well as requirements of the applicable ordinances. The brief then quotes the chairman of the Board of Adjustment and a statement for the denial of Mustang's application: "We're really here to look at from our vision, is this appropriate for adjacent landowners and is it appropriate for the county." The brief argues that the Board of County Commissioners and Zoning Board had already determined a wind farm was appropriate in Osage County, and the Board of Adjustment was failing to properly apply both Ordinance 6.5.2 and the Wind Energy Ordinance. ¶28 The Board of Adjustment's trial brief argues it possesses the discretion to deny an application for a conditional use permit for a wind farm when an applicant has satisfied the Wind Energy Ordinance. It asserts that its authority to consider the "general welfare" of the citizens is sufficiently broad to give it discretion to deny the permit. Osage Nation argues the Board's denial of the application was correct, there is a presumption in favor of the Board's decision, Mustang failed to satisfy its burden before the trial court, and the trial court's decision is not supported by evidence or law. Similarly, Osage Nation argued in its trial brief the zoning ordinance gives discretion to the Board when approving a conditional use permit, and states this discretion is exercised to "secure and protect public health, safety, morals, and general welfare" and assure "protection of adjacent properties and the public interest."37 ¶29 A board of adjustment's decision to deny a conditional use permit is subject to judicial de novo review in a District Court: "Said cause shall be tried de novo in the District Court and said Court shall have the same power and authority as the County Board of Adjustment, together with all other powers of the District Court in law or in equity."38 If the Board of Adjustment had discretion to deny any and all applicants for a conditional use permit based solely upon the particular Board's "vision" of a "general welfare" of the citizens, a type of unfettered discretion without any articulated standard, as implied by the Board; then the trial court would be possessed of the same discretion on an appeal of the board's decision: "said Court shall have the same power and authority as the County Board of Adjustment." We reject the Board's view and the implied conclusion that the District Court would have such unfettered discretion. ¶30 We have stated "A governmental entity may broadly use its power to regulate land use unless the regulation does not have a substantial relationship to the public health, safety, morals, or general welfare or is an unreasonable and arbitrary exercise of its police power."39 The exercise of governmental zoning power must not be arbitrary or unreasonable.40 A board of adjustment deciding an application for a variance or a conditional use does not exercise a legislative power in changing a zoning ordinance, but exercises a quasi-judicial power based upon the facts presented to the board.41 One consequence of these principles is that when a board of adjustment, a governmental agency, seeks to balance competing interests of a property owner and the public the board's discretion must be based upon the evidence before it and fixed principles.42 ¶31 A board of adjustment hearing a request for a variance presupposes the reasonableness of zoning regulations as a whole, and relaxes the general rules of the ordinance to alleviate conditions peculiar to particular property.43 A conditional use is a use allowed by an ordinance and the ordinance is presupposed to be reasonable. Upon an application for a special or conditional use permit the question usually turns on: (1) whether the conditions specified by the ordinance have been fulfilled by the applicant for the special use permit, and (2) whether additional conditions specified by the board have been fulfilled when the board is vested with authority to create additional conditions upon an applicant when seeking a specific use permit. A special or conditional use permit "is one issued for a use which the ordinance expressly permits in a designated zone upon proof that certain facts and conditions detailed in the ordinance exist."44 If an applicant complied with the ordinance-specified conditions for a conditional use permit, then the question becomes whether the board of adjustment was possessed of discretionary authority to create additional conditions, and if imposed, whether they were reasonable. ¶32 The record before the trial court included a transcript of the board's meeting when the vote was taken to disapprove the conditional use permit. Three members voted to disapprove, one abstained, and the chairman did not vote. Comments were made by the chairman and a board member. One comment was "we're really here to look at from our vision, is this appropriate for adjacent landowners and is it appropriate for the county." This comment was followed by some general comments by the chairman concerning his uncertainty about the exact economic benefits the county would receive from Mustang's proposed project.45 The trial judge had before him the complete record from the Board of Adjustment. ¶33 When the Osage County Board of Adjustment approves a conditional use permit it "shall make written findings certifying that the application complies with the pertinent individual conditions of use as set forth in Article 3 [of the Ordinances]."46 This ordinance also states as follows. The Board shall consider the application and site plan and shall grant or deny the application. In granting an application, the Board shall impose such requirements and conditions, in addition to those expressly stipulated in these regulations for the particular use, as the Board may deem necessary for the protection of adjacent properties and the public interest. This ordinance states the Board may "deny the application" and both Osage Nation and the Board of Adjustment argue this power to deny the application is a power to deny a conditional use permit even when an applicant has satisfied the requirements of all relevant ordinances. None of the appellants has pointed to any statutory authority that a board of adjustment possesses legislative power to rewrite a zoning ordinance approved by its board of county commissioners. A board of adjustment does not possess "unconfined and unrestrained freedom of action" to "depart from a comprehensive plan."47 We do not view this authority to deny an application as power to determine whether a permitted special use is a use beneficial to the community; that decision has been made by a county zoning ordinance allowing the operation of the wind turbines as part of its plan. We view the power to deny an application consistently with the authority of a board of adjustment to hear facts concerning special or conditional use permits. It is the operation of wind turbines in this specific proposed project that is at issue for this permit and not the use of wind turbines in the county. ¶34 Consistent to some extent with this view, Osage Nation and the Board of Adjustment also argue Mustang failed to present facts showing that public health, safety, morals, and general welfare of adjacent landowners in particular would not be harmed if the project was approved. Statements from adjacent landowners stated they would be harmed from the project, but the trial judge found the nature of this alleged harm to be speculative. ¶35 The trial judge determined Mustang's application for a conditional use satisfied the applicable ordinances. The trial judge determined the objections were not based upon credible evidence and some of them lacked a quality of reasonableness. That record is before us in the present appeal. We must agree with the trial court's factual findings if they are supported by the evidence before the trial judge.48 ¶36 The trial court agreed that the Board of Adjustment possessed discretion to impose reasonable conditions in addition to those created by the relevant ordinances. The trial judge ordered the Board of Adjustment to issue a conditional use permit to Mustang "with such additional reasonable conditions as can be shown with a basis therefore." More than twenty years ago we noted a trial judge's fairness in granting a board a second opportunity to decide under what conditions a permit would be granted, rather than just ordering the permit issued as the judge was authorized to do.49 The same may be stated in this case. ¶37 The effect of the trial judge's ruling is that when a zoning ordinance allows a property owner to use his or her property in a manner desired by the owner upon a showing that such use will be in accordance with reasonable conditions, then the objections to such use must also be founded upon reason and evidence. Zoning laws, including both the granting and denial of special use permits, may not be imposed in an arbitrary and capricious manner. Property rights and the use of property are fundamental rights on which this country was established, and it is a board of adjustment's duty to determine the reasonableness of a property owner's request based upon the evidence before the board.50 The trial judge noted the absence of written findings by the board setting forth its reasons for denying the permit. The trial judge applied zoning ordinances and made an assessment of the reasonableness of the application as well as the objections to the proposed project. The trial judge had the entire record before him and his findings are not against the clear weight of the evidence. The trial court's judgment is affirmed. CONCLUSION ¶38 The Osage County Board of Adjustment possesses authority to grant conditional use permits. The trial judge's findings are not against the clear weight of the evidence. The trial court's judgment requiring the Board of Adjustment to issue a conditional use permit with any additional reasonable conditions is affirmed. ¶39 COMBS, V.C.J.; and KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COLBERT, and GURICH, JJ., concur. ¶40 REIF, C. J., not participating. FOOTNOTES 1 Judgment or Order of the District Court, Nov. 12, 2014, O.R. 2136-2141, at 2136 "Facts" "B." 2 The five statutes cited and their statutory schemes are: (1) 19 O.S.2011 § 863.21 (counties containing city of 180,000 population); (2) 19 O.S.2011 § 865.63 (county planning and zoning); (3) 19 O.S.2011 § 866.23 (city-county planning and zoning); (4) 19 O.S.2011 § 868.18 (counties over 500,000 population); and (5) 19 O.S.2011 § 869.6 (Lake Area Planning Commission). The parties do not address 19 O.S.2011 §§ 864.1-864.16, inclusive, and the Joint City-County Electrical Examining and Appeals Board in counties containing a city of 180,000 or more population). 3 19 O.S. 2011 § 865.63: Appeals to the county board of adjustment may be taken by any person aggrieved or by a public officer, department, board or bureau affected by any decision of the county inspecting officer in administering the commission's rules and regulations. Such appeals shall be taken within a period of not more than ten (10) days, by filing written notice with the county board of adjustment and the county inspecting officer, stating the grounds thereof. An appeal from the county board of adjustment shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken shall certify to the board of adjustment that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. The county board of adjustment shall have the following powers and it shall be its duty: To hear and decide appeals where it is alleged that there is error of law in any order, requirement, decision or determination made by the county inspecting officer in the enforcement of the commission's rules and regulations. In exercising the above powers, such board of adjustment may, in conformity with the provisions of this act, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. In acting upon any appeal, such board of adjustment shall, in its consideration of and decision thereon, apply the principles, standards and objectives set forth and contained in all applicable regulations and plans as adopted. 4 For the similar language occurring in the decennial statutes see 19 O.S.1951 § 861.19; 19 O.S.1961 §§ 863.21, 865.18, and 866.23. The language occurs in the 1971, 1981, 1991, 2001, and 2011 versions of 19 O.S. §§ 863.21, 866.23. The cited language in 19 O.S.2011 § 866.23 is found in 19 O.S.Supp.1949 § 861.19. Although § 861.19 was repealed in 1953 by S.B. No. 353 § 32, to the extent it was inconsistent with prior statutes, the same language appears in the then new Act at § 21. 1953 Okla. Sess. Laws pp. 536, 539. Similarly, the 1951 statute was repealed by H.B. 840, 1955, but with the same language enacted in § 21 of that Act. 1955 Okla. Sess. Laws Ch. 19A, §§ 22, 42, pp. 172, 539. The 1955 version of the Act codified at 19 O.S.Supp.1955 §§ 863.1- 863.43, was determined by this Court to be a special and not a general law when parties agreed the Act was for the purpose of applying only to the City of Tulsa and excluding the City of Oklahoma City, and no reasonable explanation was offered for the exclusive application. Elias v. City of Tulsa, 1965 OK 164, 408 P.2d 517. The Court did not address the constitutionality of the Act as amended after 1955. 5 We observed in Bankoff v. Board of Adjustment of Wagoner County, 1994 OK 58, 875 P.2d 1138, 1143, that 19 O.S. § 866.24 provides in part: "[s]aid cause shall be tried de novo in the District Court and said Court shall have the same power and authority as the County Board of Adjustment, together with all other powers of the District Court in law or in equity." A similar procedure is used for appeals from municipal boards of adjustment. Vinson v. Medley, 1987 OK 41, 737 P.2d 932, 938 (in an appeal to a district court from a municipal board of adjustment "There must be a complete examination of all issues, both of fact and law. The cause stands as if it has never been resolved before."). 6 Jonathan E. Cohen, A Constitutional Safety Valve: The Variance in Zoning and Land-Use Based Environmental Controls, 22 B.C. Envtl. Aff. L.Rev. 307, 308 (1995) (safety valve for unconstitutional takings); City of Memphis v. Qualls, 16 Tenn. App. 387, 64 S.W.2d 548, 549 (1933) (an adjustment board is created to adjust differences between officials and property owners arising from the enforcement of zoning ordinances because it would be difficult to create zoning ordinances to meet every conceivable future need). The question whether a zoning regulation has "gone too far" as to constitute a taking is decided on "a case by case basis." In re Petition No. 382, 2006 OK 45, ¶ 12, 142 P.3d 400, 407. See, e.g., Koontz v. St. Johns River Water Management Dist., ___ U.S. ___, 133 S. Ct. 2586, 2595, 186 L. Ed. 2d 697 (2013) (when landowner sought permit to build on property the government agency could not condition issuance of permit on landowner's relinquishment of a portion of the property unless there existed a nexus and rough proportionality between the government's demand and the effects of the proposed land use). 7 Ivancovich v. City of Tucson Board of Adjustment, 22 Ariz.App. 530, 529 P.2d 242, 248 (Div. 2, 1974) (a use variance is one which permits a use of land other than that allowed by the zoning ordinance, and an area variance involves such matters as setback line, frontage requirements, height limitations, lot size restrictions, density regulations and yard requirements); Holasek v. Village of Medina, 303 Minn. 240, 226 N.W.2d 900, 903 (1978) (a variance allows a property owner to use his property in a manner forbidden by an ordinance, while a special-use permit allows him to put his property to a use which the ordinance expressly permits); Helen M. Maher, Religious Freedom and Zoning, 5 Buff. Envtl. L. J. 309, 328-329, (1998) ("special use permits are issued for uses identified in zoning ordinances as appropriate to the district, but which must receive local board approval"). 8 See, e.g., Alan R. Madry, Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin, 91 Marq. L. Rev. 485, n.1 (200&) (discussing the difference between boards of adjustment patterned after the 1920s era Standard State Zoning Act proposed by the U. S. Dept. of Commerce, and municipal zoning boards of appeal in Wisconsin). 9 St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 918 ("We measure legislation not merely against a single constitutional provision. Rather, 'statutes and generally, the constitution must be construed as a consistent whole, in harmony with common sense and reason', with all pertinent portions of the constitution being construed together."). 10 Mustang Wind Run Project, LLC's Response, etc., June 11, 2014, Exhibit A, O. R. Vol. 8, at 1430-1438. 11 See notes 16, 33, and 34 infra, and discussions relating to uncertified copies and our acceptance of the documents due to the parties' reliance on them in this proceeding. 12 12 O.S. 2011 § 3005: The contents of an official record or of a private record authorized to be recorded or filed in the public records and actually recorded or filed, if otherwise admissible, may be proved by a copy in perceivable form, certified as correct in accordance with Section 2902 of this title or testified to be correct by a witness who has compared it with the original. If a copy which complies with this section cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted. In Hishaw v. City of Oklahoma City, 1991 OK CR 122, 822 P.2d 1139, the Court of Criminal Appeals stated that a municipal ordinance used as the basis for a prosecution must be reflected in the record, either by way of introduction in evidence in the trial court in accordance with 12 O.S. § 2902, or set forth verbatim by the court during trial or in its findings or judgment, or the wording of the ordinance must have been agreed to by the parties and the stipulation entered in the record during trial. See Professor Whinery's comment on Hishaw in 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 23.06 n. 3 (2d ed., 2000): Revision of Portion of the Rules of the Court of Criminal Appeals, 2016 OK CR 20(Oct. 5, 2016), Rule 2.2 (Form and Contents of Record), paragraph F (When a City or Municipality is a Party) (When a city or municipality is a party, a certified copy of the specific ordinance(s) involved in the case shall be included in the record. It shall be the responsibility of the city or municipality to ensure the ordinance(s) are included in the record for appellate review.) 13 The court may consult and use any source of pertinent information, whether or not furnished by a party when taking judicial notice of law. Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d 276, 294; 12 O.S.2011 § 2203 ("The court may consult and use any source of pertinent information, whether or not furnished by a party"). However, municipal ordinances have traditionally not been within the scope of a court's judicial notice in the absence of specific statutes requiring judicial notice in specific circumstances. Pelican Production Corp. v. Mize, 1977 OK 235, 573 P.2d 703, 704; 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 5.05, 76-78 (2d ed., 2000). 14 An appellant has the burden to preserve a trial court record and then create a record on appeal that demonstrates the alleged error in the trial court's decision. Ray v. Ray, 2006 OK 30, ¶ 12, 136 P.3d 634, 637 ("The appealing party must include in the record for appeal all materials necessary for corrective relief."); Pracht v. Oklahoma State Bank, 1979 OK 43, 592 P.2d 976, 978 ("The appellant bears the burden of demonstrating a sufficient record and applicable law to demonstrate in this Court that the trial court committed error since error in the lower court is not presumed."). 15 Generally, the burden of proof as to a particular fact rests upon the party asserting that fact, and whether a party has a burden to assert a particular fact often depends upon whether the fact is part of a claim or defense made by the party. Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073. The trial de novo in the District Court was based upon the record before the Board of Adjustment that was filed with the District Court and any non-cumulative additional evidence the parties desired to produce. Generally, burdens of proof are not altered when a trial de novo examines the decision of a board of adjustment. Hargrave v. Tulsa Bd. of Adjustment, 2002 OK 73, ¶ 6, 55 P.3d 1088, 1091, (Court noted that a party's burden of proof at the District Court trial de novo did not change from the party's burden of proof before the board of adjustment.). Cf. In re M.K.T., 2016 OK 4, ¶ 87, 368 P.3d 771 (when a party is pleading foreign law as a basis for a judicial decision that party "has the burden of going forward with proof of it at the risk of nonpersuasion."). 16 Booth v. McKnight, 2003 OK 49, 70 P.3d 855, (uncontroverted facts not appearing in the appellate record but in the parties' briefs may be considered to supplement an incomplete judgment roll); Board of Ed. of Ind. Sch. D. No. 48, Hughes Cty. v. Rives, 1974 OK 153, 531 P.2d 335, 336 (Court used in its opinion undisputed facts which were found in the appellate briefs). 17 Tr. Aug. 28, 2014, Vol. II, pp. 42-43, 50, 52-53, 55. 18 Order of the District Court, Nov. 12, 2014, O.R. 2136-2141, at 2137 "Facts" paragraph "H." 19 Order of the District Court, Nov. 12, 2014, O.R. 2136-2141, at 2137 "Facts" paragraph "E." 20 In one trial court hearing the trial judge observed "it looks like about every teacher, administrator in the Shidler School District signed one [letters] and sent it in, in favor of this [project]." Tr. Aug. 28, 2014, Vol. II, p.31. 21 Order of the District Court, Nov. 12, 2014, O.R. 2136-2141, at 2140, citing "17 O.S. § 160.12(1)(2)." 22 Order of the District Court, Nov. 12, 2014, O.R. 2136-2141, at 2140. 23 Indian Territory Illuminating Oil Co. v. Larkins, 1934 OK 125, 31 P.2d 608 (Syllabus by the Court). 24 In re Initiative Petition No. 382, 2006 OK 45, ¶ 11, 142 P.3d 400, 406. 25 See, e.g., Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 27 O.O.2d 388, 200 N.E.2d 328, 436 (1964) (discussing scenic beauty and legislation enacted under the police power to regulate or prohibit billboards); Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974) (acknowledging a village's police power as "ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people"); Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 22 P.2d 5, 16-17 (1933) (Under modern conditions a government entity's lawful exercise of a police power includes the general welfare which embraces regulations to promote the economic welfare, public convenience, and general prosperity of the community.). 26 City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995) quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 118, 71 L. Ed. 303 (1926). 27 Respondent's [Board of Adjustment's] Trial Brief, Sept. 10, 2014, O. R. at 2084-2088. 28 Dixon v. Peacock, 1914 OK 256, 141 P. 429, 432. 29 See, e.g., 12 O.S. 2011 § 696.3 (specifying the form for judgments, decrees and appealable orders). 30 19 O.S. 2011 § 865.64: An appeal to the district court from any decision, ruling, judgment, or order of said county board of adjustment may be taken by any person or persons, firm or corporation, jointly or severally, aggrieved thereby, or any department, board or official of government by filing with the clerk of said board within ten (10) days a notice of such appeal. No bond shall be required for such appeal, but costs may be required in the district court as in other cases. Upon filing of such notice, the clerk of said board shall forthwith transmit to the clerk of the district court the originals or certified copies of all papers constituting the record in such case, together with the order, judgment or decisions of said board. Said cause shall be tried de novo in the district court and said court shall have the same power and authority as the county board of adjustment, together with all other powers of the district court in law or in equity. An appeal to the Supreme Court from the decision of the district court shall be allowed as in other cases. 31 Triangle Fraternity v. City of Norman ex rel. Board of Adjustment, 2002 OK 80, ¶ 11, 63 P.3d 1, 5. 32 Sinclair Oil & Gas Co. v. Bishop, 1967 OK 167, 441 P.2d 436, 447-448; Robbins v. Warren, 1924 OK 1020, 230 P. 929. 33 The Osage Nation's objection filed with the Board of Adjustment has attached thereto uncertified photocopies of pages that appear to have been certified photocopies of both the Pawhuska Osage County Planning Area zoning ordinances and the Osage County Wind Ordinance. Petition by Osage Nation Objecting to Mustang Run Wind Project, April 10, 2014, Osage County Board of Adjustment, O.R. 1172-1294, 1296-1299. This material was part of the record before the trial court. 34 Booth v. McKnight, supra, at note 16. 35 Mustang's trial brief, August 27, 2014, O. R. Vol. 9, at 1630 - 1876, at 1634. 36 Mustang's trial brief, August 27, 2014, O. R. Vol. 9, at 1630 - 1876, at 1653-1655. 37 Osage Nation Trial Brief, September 10, 2014, O.R. at 2098-2101, 2101. 38 19 O.S.2011 § 866.24: An appeal to the District Court from any decision, ruling, judgment, or order of said County Board of Adjustment may be taken by any person or persons, firm or corporation, jointly or severally, aggrieved thereby, or any department, board or official of government by filing with the clerk of said Board within ten (10) days a notice of such appeal. No bond shall be required for such appeal, but costs may be required in the District Court as in other cases. Upon filing of such notice, the clerk of said Board shall forthwith transmit to the clerk of the District Court the originals or certified copies of all papers constituting the record in such case, together with the order, judgment or decisions of said Board. Said cause shall be tried de novo in the District Court and said Court shall have the same power and authority as the County Board of Adjustment, together with all other powers of the District Court in law or in equity. An appeal to the Supreme Court from the decision of the District Court shall be allowed as in other cases. 39 In re Initiative Petition No. 382, 2006 OK 45, ¶ 11, n. 19, 142 P.3d at 406, citing Nucholls v. Board of Adjustment of the City of Tulsa, 1977 OK 3, ¶ 11, 560 P.2d 556. 40 McConnell v. Town Clerk of Tipton, 1985 OK 61, 704 P.2d 479, 481, citing Keaton v. Oklahoma City, 1940 OK 215, 187 Okla. 593, 102 P.2d 938 ("Municipalities are authorized to enact zoning ordinances and when the legislative branch of the municipal government has acted in a particular case, its expressed judgment on the subject will not be overridden by the judiciary unless such judgment is unreasonable, arbitrary or constitutes an unequal exercise of police power."); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 548-549, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005), (Kennedy, J., Concurring, "This separate writing is to note that today's decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process."). 41 Banks v. City of Bethany, 1975 OK 128, 541 P.2d 178, 180 (principle applied to a municipal board of adjustment). 42 Christian v. Gray, 2003 OK 10, ¶ 45, 65 P.3d 591, 609 (the discretion possessed by a trial judge does not mean the decision of the trial judge is one without fixed principles by which its correctness may be determined upon appellate review). Cf. Maree v. Neuwirth, 2016 OK 62, ¶ 6, 374 P.3d 750, 752-753 (an abuse of discretion or arbitrary exercise of judicial or quasi-judicial power may occur "even though the officer is vested with judgment and discretion," and such arbitrary exercise of power is subject to correction when properly presented to the Court). 43 Nucholls v. Board of Adjustment of the City of Tulsa, 1977 OK 3, 560 P.2d 556, 559-560. 44 Harts Book Stores, Inc. v. City of Raleigh, 53 N.C.App. 753, 281 S.E.2d 761, 763-764 (1981) (rule stated and also holding that when an applicant for a special use permit satisfies a zoning ordinance's conditions for granting it, the permit is the applicant's by right and may not be withheld because zoning authorities feel it might be detrimental to a neighborhood or because neighbors oppose it); Brooks v. Fisher, 705 S.W.2d 135, 137-38 (Tenn.Ct.App.1985) (stating that neighborhood opposition cannot prevail against a land use permitted of right); Bartheld v. County of Koochiching, 716 N.W.2d 406, 411 (Ct.App.Minn. 2006) ("A county's denial of a conditional use permit is arbitrary where the applicant establishes that all of the standards specified by the zoning ordinance as conditions of granting the permit have been met."). 45 Pawhuska-Osage County Board of Adjustment, Public Hearing, May 8, 2014, O.R. 2031, 2046. 46 Ordinance 6.5.2, Power of the Board to Grant Conditional Use Permits, O.R. at 1259. 47 Bankoff v. Board of Adjustment of Wagoner County, 1994 OK 58, 875 P.2d 1138, 1144-1145, quoting Van Meter v. H. F. Wilcox Oil & Gas Co., 1935 OK 188, 41 P.2d 904, 909. 48 Triangle Fraternity v. City of Norman ex rel. Norman Bd. of Adjustment, 2002 OK 80, ¶ 11, 63 P.3d 1, 5. See also Vinson v. Medley, 1987 OK 41, 737 P.2d 932, 938 (in an appeal from a municipal board of adjustment, unless clearly contrary to the weight of the evidence, the district court's decree will not be disturbed); Robison v. Graham, 1990 OK 93, 799 P.2d 610, 618 ("Our standard of review in an equitable action is that '[o]rdinarily this court must affirm the judgment of the trial court sitting in equity unless it is found to be against the clear weight of the evidence.'"). 49 Bankoff v. Board of Adjustment of Wagoner County, 1994 OK 58, 875 P.2d at 1145. 50 Nucholls v. Board of Adjustment of the City of Tulsa, 1977 OK 3, 560 P.2d 556, 559-560.

d12a046a-39d9-45a1-bb01-cf1047a1d95a

Baggs v. Baggs

oklahoma

Oklahoma Supreme Court

BAGGS v. BAGGS2016 OK 117Case Number: 111780Decided: 11/15/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE THE MARRIAGE OF: JENNIFER D. BAGGS, Petitioner/Appellant, v. STEVEN J. BAGGS, Respondent/Appellee. APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY Honorable Gary D. McCurdy, Trial Judge ¶0 The petitioner/appellant, Jennifer D. Baggs (wife), filed for divorce from her firefighter husband, the respondent/appellee, Steven J. Baggs (husband). As part of the firefighter retirement plan, the husband was vested in what is known as a DROP or Plan B option created specifically for Oklahoma Firefighters pursuant to 11 O.S. 2011 §49-100 et seq. Plan B is an alternative option for firefighters' pensions available when a vested firefighter retires. It is not funded until the firefighter chooses the Plan B retirement alternative. The wife sought any portion of the Plan B which would be attributable to the years in which she and the husband were married, in the event he chooses Plan B when he retires, after the divorce is granted. The trial court declined to divide the Plan B option as marital property and the Court of Civil Appeals affirmed. We hold that, in the event the Plan B option is chosen by a vested former spouse when the firefighter retires, it is divisible to the extent that any funds deposited into it are attributable to the marital years. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS VACATED IN PART; TRIAL COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. Ann Hadrava, Edward Goldman, Oklahoma City, Oklahoma, for Petitioner/Appellant. Sherman A. Reed, Edmond, Oklahoma, for Respondent/Appellee. KAUGER, J.: ¶1 The first impression issue on appeal is whether a firefighter's alternative DROP/Plan B retirement option is divisible in a divorce, even though the option may or may not be chosen by the firefighter at retirement?1 We hold that in the event the Plan B option is chosen by the firefighter upon retirement, it is divisible to the extent any funds were deposited into it attributable to the marital years. FACTS ¶2 The petitioner/appellant, Jennifer D. Baggs (wife) married the respondent/appellee, Steven J. Baggs (husband) on October 17, 1995. The couple had two children together, a daughter and a son.2 After approximately the first 18 months of marriage, the wife did not work outside the home during the marriage. Rather, she "ran the home," took care of the finances and the children, and home schooled the children. The husband had been employed with the Oklahoma City Fire Department for approximately five years prior to the marriage, and he continued to work there throughout the marriage. He also worked a secondary job as an adjunct instructor at Oklahoma State University (OSU) in Oklahoma City for nearly a decade during the marriage, and he intermittently did yard and handyman work for extra money as well. ¶3 The wife filed for divorce in the District Court of Canadian County, Oklahoma on July 8, 2011. In August of 2011, the wife started nursing school at OSU in Oklahoma City in an attempt to become a registered nurse by 2016. She paid for school with loans and grants. The judge held a trial on July 27, 2012. At the beginning of the trial, counsel for the wife informed the court that the parties had reached an agreement regarding custody of the children, and the husband's 457 deferred compensation retirement account. Both parties agreed to joint custody of both children, with the father primary joint custodial residential parent of the girl, the mother primary joint custodial residential parent of the boy, and each parent having standard visitation of the child who was not in their primary custody. The counsel also noted that court had already signed a Qualified Domestic Relations Order (QDRO) regarding the deferred compensation account, and that it had already been submitted to the Oklahoma City Fire Department pension board. ¶4 The parties also agreed that the wife would be awarded the marital residence, and that she had already redeemed it from foreclosure by paying nearly $16,000.00 which she borrowed from family members. The remainder of the trial concerned alimony, child support, real property and personal property division, and other financial issues, as well as discussion of the value of the husband's pension with the Fire Department. In addition to his deferred compensation plan in which the parties had reached a division settlement, the husband, when he chooses to retire, will have the option to make an election between a traditional pension retirement and what is known as a Plan B or Deferred Retirement Option Plan (DROP/Plan B) which we detail forthcoming. ¶5 The wife sought any portion of the Plan B which might be attributable to the marital years, in the event the husband later decides to chose this retirement option after the divorce is granted. On April 24, 2013, the trial court issued the decree of dissolution of marriage, and awarded the wife ½ of the husbands retirement benefits, but declined to award any interest in a DROP/Plan B option stating: The Court herein declines to order Respondent to change the current form of the fund since this Court believes that it should not make investment decisions for the Parties, but it is empowered to equitably divide the marital assets as they currently exist. ¶6 The Court of Civil Appeals affirmed the trial court in so far as the Plan B issue was concerned and modified the trial court's property division. Regarding the Plan B, the appellate court relied on Ballinger v. Ballinger, 2014 OK CIV APP 92, 340 P.3d 644, a strikingly similar case in which the court determined that the Plan B retirement option available to a spouse post divorce is not divisible. The wife appealed on March 2, 2016. We granted certiorari on September 20, 2016, to address the first impression question of the divisibility of the DROP/Plan B option. IN THE EVENT THE PLAN B OPTION IS CHOSEN BY A FIREFIGHTER UPON RETIREMENT, IT IS DIVISIBLE TO THE EXTENT ANY FUNDS WERE DEPOSITED INTO IT ATTRIBUTABLE TO THE MARITAL YEARS. ¶7 The wife argues that: 1) the husband became vested during their marriage to be eligible to elect the Plan B when he retires; 2) if he does elect Plan B, it will then be funded and a portion of those funds are attributable to the pension he accrued during the marriage; and 3) because it was partially accrued during the marriage, it is at least partially marital property. She also argues that the fact that Plan B is a contingency that the husband has yet to enroll in is irrelevant, and does not cause the loss of its marital character. The husband argues that because there is no Plan B account in existence as of the date of the parties divorce, there can be no distribution to the wife. He insists that there is no reason to require a court to speculate about a contingent future distribution of a non-existent retirement benefit. A. The DROP (Deferred Retirement Option Plan)/ Plan B. ¶8 Title 11 O.S. 2011 §§49-100.1 - 143.6. govern the Oklahoma Firefighters Pension and Retirement System (the System).3 The eligible retirement date for a member of the System is the date in which the member completes 20 years of credited service or 22 years of credited service plus attainment of the age 50, depending on whether the member's start date is before or after November 1, 2013.4 Under the traditional path to retirement, any firefighter who reaches the retirement date and retires from service, is paid a monthly pension equal to their accrued retirement benefit.5 ¶9 An alternative to the traditional route is that a member may elect to participate in what is known as the DROP or commonly called Plan B. Under the DROP plan, in lieu of terminating employment and accepting the traditional retirement pension,6 an eligible member may elect to defer the receipts of benefits under the plan and continue working, but not continue to increase their years of credible service.7 Eligibility under this plan is also 20 years of credible service or 22 years, if employment was on or after November 1, 2013.8 The duration of participation may not to exceed five years and, at the conclusion of participation, employment terminates.9 ¶10 When the member participates in the DROP, the contributions of the member cease, but the employer contributions continue and interest are credited to the DROP account.10 The monthly traditional retirement benefits that would have been payable had the firefighter chosen to retire on the date they join the DROP plan are deposited into the DROP account.11 This is the first time the DROP account is funded.   ¶11 At the end of the DROP period (not more than five years), the participant may then receive a lump-sum payment from the account equal to the payments which were made into the account.12 In other words, once a firefighter is vested in the pension system, he or she will also be eligible to elect the DROP plan when the firefighter retires. The day the firefighter does elect the DROP plan, their pension payments would be calculated and deposited monthly into the DROP account as long as the firefighter continues to work for up to 60 months maximum. Employer contributions and interest are also credited to the account. Upon leaving employment, the firefighter would then receive both a lump-sum payment, and a monthly pension payment (calculated as if they had retired on the day they elected to participate in the DROP plan.)13 ¶12 Enrolling in the DROP is merely another way for firefighters to begin receiving pension benefits. The advantage of not opting to do the DROP would be a higher pension benefit based on a longer number of credible service years. On the other hand, the advantage of opting to do the DROP, would be receiving a lump-sump payment, and continuing to receive a salary for a few extra years, even though ultimately, the monthly pension benefit would be lower than if they had started collecting traditional retirement benefits. B. Retirement Benefits May be Divisible Marital Property Even if They Rest on a Contingency Such as Plan B. ¶13 A district court possesses power in a divorce proceeding to divide the marital estate.14 Title 43 O.S. 2011 §121 requires a fair and just division of jointly acquired property upon divorce.15 While §121 has specific provisions for military retirement, it does not generally address any pensions much less "contingent" type pensions such as the Plan B.16 ¶14 Generally, a pension right burdened with a conjugal interest is a type of marital asset divided between the parties to a divorce.17 We have said that "absent a specific statutory exception. . . a trial court may consider the pension as jointly acquired, make a grant of that property to one spouse and then make a compensating award to the other spouse."18 The contingent nature of a pension is irrelevant. For example, in Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646, we addressed pensions acquired through spousal efforts during the marriage and determined them to be divisible marital property under the predecessor to 43 O.S. 2011 §121.19 ¶15 Carpenter concerned the divorce of a couple who had been married for thirty-six years. At the time of the divorce, the husband had a pension and a profit sharing plan, in which he was a participant, with benefits paying upon his death, disability or retirement. The trial court held that the profit sharing plan was divisible marital property. The Court affirmed, stating: ¶23 In addressing this issue, we do not deem it significant whether the pension is "vested" in the sense that it is now due and owing, whether it is conditional or contingent upon continued employment for a prescribed period or terminable upon the occurrence nor non-occurrence of some future event. (See In Re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr. 633, 544 P.2d 561 (1976); Hutchins v. Hutchins, 71 Mich. App. 361, 248 N.W.2d 272 (1977).) In any of these events, it is a valuable right which has been purchased through joint efforts of the spouses to the extent that it has been acquired or enhanced during the marriage, and as such becomes jointly acquired property during the marriage. DeRevere v. DeRevere, 5 Wash. App. 741, 491 P.2d 249 (1971).20   ¶24 The practical problems inherent in "dividing" a pension which is unmatured or contingent at the time of a divorce are resolved within the language of 12 O.S. 1981 § 1278 itself. It must be divided between the parties "as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof."   ¶16 The Oklahoma Firefighter Pension and Retirement System, 11 O.S. 2011 §49-126 expressly addresses the divisibility of firefighter pensions as marital property. It provides for qualified domestic orders, and recognizes former spouses as alternative payees to pension benefits which have been determined to be marital property.21 Included within its provisions is the express recognition that the DROP/Plan B retirement option is divisible marital property to the extent any benefits which are deposited into it were accumulated during the marriage. Title 11 O.S. 2011 §49-126(9) provides: The alternate payee [former spouse] shall have a right to receive benefits payable to a member of the System under the Oklahoma Firefighters Deferred Option plan provided for pursuant to Section 49-106.1 of this title, but only to the extent such benefits have been credited or paid into the member's Oklahoma Firefighters Deferred Option Plan account during the term of the marriage. Clearly, the Plan B retirement option is divisible marital property because when it is chosen, it is then partially funded with a portion of retirement funds which are attributable to the marital years. The technicality here is simply that it cannot be divided until, at some point in the future, it is chosen, even if that choice occurs post-divorce. ¶17 Other courts have unanimously determined, under similar DROP systems to Oklahoma's, that a spouse is entitled to a portion of that part of their ex-spouse's retirement benefits which are attributable to the marital estate, even if the ex-spouse elects the retirement option deferred plan after the divorce.22 The only case which does not fall in line with these other courts and our prior caselaw is the Oklahoma Court of Civil Appeals case of Ballinger v. Ballinger, 2014 OK CIV APP 92, 340 P.3d 644, which has facts strickingly similar to this cause. To the extent Ballinger can be read to preclude equitable division of a DROP retirement plan, it is hereby overruled. ¶18 Implicit in the rationale of Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646, is the idea that pensions, contingent upon the occurrence or non-occurrence of some future event, are valuable rights if the contingency has been acquired through joint efforts of the spouses -- to the extent that it has been acquired or enhanced during the marriage, and as such becomes jointly acquired property during the marriage. Pursuant to 11 O.S. 2011 §49-126(9), supra, firefighter DROP benefits were contemplated by the Legislature as being divisible marital property. ¶19 Firefighter pension rights are vested when a firefighter retires or could retire because the firefighter is eligible for pension benefits.23 In this cause, the firefighter husband had worked as a firefighter for five years prior to the marriage and an additional sixteen years during the marriage giving him the minimal twenty years necessary, by the time the divorce was filed, to vest in his pension benefits and to vest in his ability to select the Plan B option upon retirement. Although the Plan B is not immediately divisible because it has not yet been funded, or selected, if it is chosen upon his retirement, the former wife is entitled to any portions thereof which were accrued during the marriage. While this calculation may not be easy to make, it is not impossible, nor is its difficulty a reason to deny to the wife what is fair, just and reasonable. Accordingly, the cause is reversed and remanded to the trial court to enter a final divorce decree which protects the wife's interest in the Plan B retirement option should the husband chose to retire and select this option upon his retirement. CONCLUSION ¶20 A district court possesses power in a divorce proceeding to divide the marital estate.24 Title 43 O.S. 2011 §121 requires a fair and just division of jointly acquired property upon divorce.25 Generally, a pension right burdened with a conjugal interest is a type of marital asset divided between the parties to a divorce.26 ¶21 Under the rationale of Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646, pensions contingent upon the occurrence or non-occurrence of some future event, are valuable rights if the contingency has been acquired through joint efforts of the spouses during the marriage, and as such becomes jointly acquired property during the marriage. Pursuant to 11 O.S. 2011 §49-126(9), supra, firefighter DROP benefits were contemplated by the Legislature as being divisible marital property. Consequently, the cause is reversed and remanded to the trial court to enter a final divorce decree which protects the wife's interest in the Plan B retirement option should the husband chose to retire and select this option upon his retirement. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS VACATED IN PART; TRIAL COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. ALL JUSTICES CONCUR. FOOTNOTES 1 In the Petition in Error filed May 17, 2013, the wife raised thirteen issues on appeal. After the Court of Civil Appeals decided the cause, the wife, in her Petition for Certiorari filed March 2, 2016, raised only the first impression issue of the divisibility of the DROP?Plan B option. This issue is dispositive. Nevertheless, this Court affords certiorari claimants review of issues undecided in an appeal which are properly preserved and briefed. Hough v. Leonard, 867 P.2d 438, 445-46 (Okla.1993). Today's decision vacates only that portion of the Court of Civil Appeals opinion addressing the DROP/Plan B property division and leaves in tact the remaining property division issues also addressed by the Court of Civil Appeals. 2 At the time of the divorce trial, the daughter was 16 and the son was 14. The father also had a son from a previous relationship who attended college. 3 Title 11 O.S. 2011 §§49-100.1 - 143.6. Title 11 O.S. Supp. 2013 §49-100.1 provides in pertinent part: As used in this article: 1. "System" means the Oklahoma Firefighters Pension and Retirement System and all predecessor municipal firefighters pension and retirement systems; 2. "Article" means Article 49 of this title; 3. "State Board" means the Oklahoma Firefighters Pension and Retirement Board; 4. "Local board" means the local firefighters pension and retirement boards; 5. "Fund" means the Oklahoma Firefighters Pension and Retirement Fund; . . . 4 Title 11 O.S. Supp. 2013 §49-100.1 provides in pertinent part: . . .6. "Member" means all eligible firefighters of a participating municipality or a fire protection district who perform the essential functions of fire suppression, prevention, and life safety duties in a fire department. The term "member" shall include but not be limited to the person serving as fire chief of any participating municipality, provided that a person serving as fire chief of a participating municipality shall meet the age, agility, physical and other eligibility requirements required by law at the time said person becomes a member of the System. Effective July 1, 1987, a member does not include a "leased employee". The term "leased employee" means any person (other than an employee of the recipient) who pursuant to an agreement between the recipient and any other person ("leasing organization") has performed services for the recipient (or for the recipient and related persons determined in accordance with Section 414(n)(6) of the Internal Revenue Code of 1986, as amended) on a substantially full-time basis for a period of at least one (1) year, and such services are performed under primary direction or control by the recipient. Contributions or benefits provided a leased employee by the leasing organization which are attributable to services performed for the recipient employer shall be treated as provided by the recipient employer. A leased employee shall not be considered an employee of the recipient if the requirements of the safe harbor provisions of Section 414(n)(5) of the Internal Revenue Code of 1986, as amended, are satisfied. Effective July 1, 1999, any individual who agrees with the participating municipality that the individual's services are to be performed as a leased employee or an independent contractor shall not be a member regardless of any classification as a common law employee by the Internal Revenue Service or any other governmental agency, or any court of competent jurisdiction; 7. "Normal retirement date" means the date at which the member is eligible to receive the unreduced payments of the member's accrued retirement benefit. Such date shall be the first day following the date the member completes twenty (20) years of credited service. For a member whose first employment with a participating employer of the System occurs on or after November 1, 2013, such date shall be the first day following the date the member completes twenty-two (22) years of credited service and has attained the age of at least fifty (50) years. If the member's employment continues past the normal retirement date of the member, the actual retirement date of the member shall be the first day following the date the member terminates employment with more than twenty (20) years of credited service, or with respect to members who are required to complete twenty-two (22) years of service, the first day following the date the member terminates employment with more than twenty-two (22) years of service and who has also attained the age of at least fifty (50) years; . . . 5 Title 49 O.S. 2011 §49-106 provides in pertinent part: A. Any firefighter who reaches the firefighter's normal retirement date shall be entitled, upon written request, to retire from such service and be paid from the System a monthly pension equal to the member's accrued retirement benefit; provided, that the pension shall cease during any period of time the member may thereafter serve for compensation in any municipal fire department in the state. If such a member is reemployed by a participating municipality in a position which is not covered by the System, retirement shall also include receipt by such member of in-service distributions from the System. . . . 6 Title 11 O.S. 2001 §49-101-106. 7 Title 49 O.S. Supp. 2014 §49-106.1 provides in pertinent part: A. In lieu of terminating employment and accepting a service retirement pension pursuant to Sections 49-101 and 49-106 of this title, any member of the Oklahoma Firefighters Pension and Retirement System serving as an active firefighter in a fire department of a participating municipality who has not less than twenty (20) years of creditable service, or any member of the Oklahoma Firefighters Pension and Retirement System whose first employment with a participating employer of the System occurs on or after November 1, 2013, and who has not less than twenty-two (22) years of creditable service and who is eligible to receive a service retirement pension may elect to participate in the Oklahoma Firefighters Deferred Option Plan and defer the receipts of benefits in accordance with the provisions of this section. . . . 8 Title 49 O.S. Supp. 2014 §49-106.1, see note 7, supra. 9 Title 49 O.S. Supp. 2014 §49-106.1 provides in pertinent part: . . .C. The duration of participation in the Oklahoma Firefighters Deferred Option Plan for active firefighters shall not exceed five (5) years. Participation in the Oklahoma Firefighters Deferred Option Plan must begin the first day of a month and end on the last day of a month. At the conclusion of a member's participation in the Oklahoma Firefighters Deferred Option Plan, the member shall terminate employment with all participating municipalities as a firefighter, and shall start receiving the member's accrued monthly retirement benefit from the System. Such a member may be reemployed by a participating municipality but only in a position not covered under the System, and receive in-service distributions of such member's accrued monthly retirement benefit from the System. . . . 10 Title 49 O.S. Supp. 2014 §49-106.1 provides in pertinent part: . . . D. When a member begins participation in the Oklahoma Firefighters Deferred Option Plan, the contribution of the member shall cease. The employer contributions shall continue to be paid in accordance with subsection B of Section 49-122 of this title. Employer contributions for members who elect the Oklahoma Firefighters Deferred Option Plan shall be credited equally to the Oklahoma Firefighters Pension and Retirement System and to the member's Oklahoma Firefighters Deferred Option Plan account. The monthly retirement benefits that would have been payable had the member elected to cease employment and receive a service retirement shall be paid into the member's Oklahoma Firefighters Deferred Option Plan account. . . . 11 Title 49 O.S. Supp. 2014 §49-106.1, see not 7, supra. 12 Title 49 O.S. Supp. 2014 §49-106.1 provides in pertinent part: . . .F. A member in the plan shall receive, at the option of the member, a lump-sum payment from the account equal to the payments to the account or an annuity based upon the account of the member or may elect any other method of payment if approved by the Board of Trustees. If a member becomes so physically or mentally disabled while in, or in consequence of, the performance of his or her duty as to prevent the effective performance of his or her duties that the State Board approves an in-line-of-duty disability pension, the payment from the account shall be an in-line-of-duty disability payment. Notwithstanding any other provision contained herein to the contrary, commencement of distributions under the Oklahoma Firefighters Deferred Option Plan shall be no later than the time as set forth in subsection B of Section 49-106 of this title and a member whose first service with a participating municipality of the System occurs on or after November 1, 2013, and who participates for the first time in the Oklahoma Firefighters Deferred Option Plan on or after November 1, 2013, must receive a distribution of the entire remaining balance in the member's Oklahoma Firefighters Deferred Option Plan account no later than April 1 of the calendar year following the later of: 1. The calendar year in which the member reaches seventy and one-half (70 1/2) years of age; or 2. The actual retirement date of the member. . . . 13 Title 11 O.S. Supp. 2014 §49-106.1 also has an additional alternative which involves a "back drop date," which gives the firefighter the option of back dating their election of DROP in order to receive benefits. The statute provides in pertinent part: H. In lieu of participating in the Oklahoma Firefighters Deferred Option Plan pursuant to subsections A, B, C, D, E and F of this section, a member may elect to participate in the Oklahoma Firefighters Deferred Option Plan pursuant to this subsection as follows: 1. For purposes of this subsection and subsection I of this section, the following definitions shall apply: a. "back drop date" means the member's normal retirement date or the date five (5) years before the member elects to participate in the Oklahoma Firefighters Deferred Option Plan, whichever date is later, b. "termination date" means the date the member elects to participate in the Oklahoma Firefighters Deferred Option Plan pursuant to this subsection, and the date the member terminates employment with all participating municipalities as an active firefighter, c. "earlier attained credited service" means the credited service earned by a member as of the back drop date, and d. "deferred benefit balance" means all monthly retirement benefits that would have been payable had the member elected to cease employment on the back drop date and receive a service retirement from the back drop date to the termination date, all the member's contributions and one-half (1/2) of the employer contributions from the back drop date to the termination date, with interest based on how the benefit would have accumulated on a compound annual basis as if the member had participated in the Oklahoma Firefighters Deferred Option Plan pursuant to subsections A, B, C, D, E and F of this section from the back drop date to the termination date; and 2. At the termination date, the monthly pension benefit shall be determined based on earlier attained credited service and on the final average salary as of the back drop date. The member's individual deferred option account shall be credited with an amount equal to the deferred benefit balance, the member shall terminate employment with all participating municipalities as a firefighter, and shall start receiving the member's accrued monthly retirement benefit from the System. Such a member may be reemployed by a participating municipality but only in a position not covered under the System, and receive in-service distributions of such member's accrued monthly retirement benefit from the System. The provisions of subsections B, C, E, F and G of this section shall apply to this subsection. A member shall not participate in the Oklahoma Firefighters Deferred Option Plan pursuant to this subsection if the member has elected to participate in the Oklahoma Firefighters Deferred Option Plan pursuant to subsections A, B, C, D, E and F of this section. 14 Tubbs v. State of Oklahoma ex rel. The Teachers' Retirement System of Oklahoma, 2002 OK 79, ¶9, 57 P.3d 571; Larman v. Larman, 1999 OK 83, ¶17, 991 P.2d 536. 15 Title 43 O.S. 2011 §121 provides in parts A and B: A. When a dissolution of marriage is granted, the decree shall restore: 1. To the wife her maiden or former name, if her name was changed as a result of the marriage and if she so desires; 2. To the husband his former name, if his name was changed as a result of the marriage and if he so desires. B. The court shall enter its decree confirming in each spouse the property owned by him or her before marriage and the undisposed-of property acquired after marriage by him or her in his or her own right. Either spouse may be allowed such alimony out of real and personal property of the other as the court shall think reasonable, having due regard to the value of such property at the time of the dissolution of marriage. Alimony may be allowed from real or personal property, or both, or in the form of money judgment, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall, subject to a valid antenuptial contract in writing, make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to be paid such sum as may be just and proper to effect a fair and just division thereof. The court may set apart a portion of the separate estate of a spouse to the other spouse for the support of the children of the marriage where custody resides with that spouse. 16 Title 43 O.S. 2011 §121 provides in parts C-G: C. A servicemember's portion of Special Monthly Compensation (SMC) awarded by or from the United States Department of Veterans Affairs for service-connected loss or loss of use of specific organs or extremities shall be separate property, not divisible as a marital asset nor as community property. For purposes of identifying SMC, it is the sole responsibility of the servicemember to prove with competent evidence what amount of his or her disability compensation is SMC. D. A servicemember's portion of Combat-Related Special Compensation (CRSC) shall be separate property, not divisible as a marital asset nor as community property, if a specific dollar amount of CRSC can be proved by the servicemember as compensation for combat-related loss of limb or loss of bodily function and the CRSC award was applied for and established prior to the date of the filing of the dissolution of marriage action. E. Pursuant to the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C., Section 1408, a court may treat disposable retired or retainer pay payable to a military member either as property solely of the member or as property of the member and the spouse of the member. If a state court determines that the disposable retired or retainer pay of a military member is the sole and separate property of the military member, the court shall submit clear and concise written findings of such determination to be included in the decree or final order. If a state court determines that the disposable retired or retainer pay of a military member is marital property, the court shall submit clear and concise written findings of such determination to be included in the decree or final order and shall award an amount consistent with the rank, pay grade, and time of service of the member at the date of the filing of the petition, unless the court finds a more equitable date due to the economic separation of the parties. F. Unless otherwise agreed to by the parties, any division of an active duty military member's retirement or retainer pay shall use the following language: "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying fifty percent (50%) times a fraction, the numerator of which is ____x____ months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service." G. In the case of a member's retiring from reserve duty, unless otherwise agreed by the parties, any division of a reservist's retirement or retainer pay shall use the following language: "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying fifty percent (50%) times a fraction, the numerator of which is __X____reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned." 17 Tubbs v. State of Oklahoma ex rel. The Teachers' Retirement System of Oklahoma, see note 14, supra; Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925. 18 Tubbs v. State of Oklahoma ex rel. The Teachers' Retirement System of Oklahoma, see note 14, supra; Rice v. Rice, 1988 OK 83, ¶8, 762 P.2d 925. 19 The predecessor of 43 O.S. 2011 §121 before it was renumbered was 12 O.S. 1981 §1278. 20 We note that the Court of Civil Appeals in Duty v. Duty, 2007 OK CIV APP 43, 162 P.3d 939 determined that unvested stock options obtained during marriage were marital property subject to division. 21 Title 11 O.S. Supp. 2010 §49-126 provides in pertinent part: B. . . .2. The term "qualified domestic order" means an order issued by a district court of this state pursuant to the domestic relation laws of this state which relates to the provision of marital property rights to an alternate payee and which creates or recognizes the existence of the right of an alternate payee and assigns to an alternate payee the right to receive a portion of the benefits payable with respect to a member of the System. 3. The term "alternate payee" means any spouse, former spouse, minor or disabled child or children, or other dependent of the member who is recognized by a domestic relations order as having a right to receive benefits payable with respect to a member of the System. 4. For purposes of the payment of marital property, to qualify as an alternate payee, a spouse or former spouse must have been married to the related member for a period of not less than thirty (30) continuous months immediately preceding the commencement of the proceedings from which the qualified domestic order issues. 5. A qualified domestic order is valid and binding on the State Board and the related member only if it meets the requirements of this subsection. 6. A qualified domestic order shall clearly specify: a. the name and last-known mailing address (if any) of the member and the name and mailing address of the alternate payee covered by the order, b. the amount or percentage of the member's benefits to be paid by the System to the alternate payee, c. the number of payments or period to which such order applies, d. the characterization of the benefit as to marital property rights or child support, and e. each plan to which such order applies. 7. A qualified domestic order meets the requirements of this subsection only if such order: a. does not require the System to provide any type or form of benefit, or any option not otherwise provided under state law as relates to the System, b. does not require the System to provide increased benefits, and c. does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee pursuant to another order previously determined to be a qualified domestic order or an order recognized by the System as a valid order prior to June 7, 1993. 8. A qualified domestic order shall not require payment of benefits to an alternate payee prior to the actual retirement date of the related member. 9. The alternate payee shall have a right to receive benefits payable to a member of the System under the Oklahoma Firefighters Deferred Option plan provided for pursuant to Section 49-106.1 of this title, but only to the extent such benefits have been credited or paid into the member's Oklahoma Firefighters Deferred Option Plan account during the term of the marriage. 10. The obligation of the System to pay an alternate payee pursuant to a qualified domestic order shall cease upon the earlier of the death of the related member or the death of the alternate payee. Upon the death of the alternate payee, the assignment to the alternate payee of the right to receive a portion of the benefits payable with respect to the member shall cease and the payments of benefits to the member shall be reinstated. 11. This subsection shall not be subject to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. Section 1001, et seq., as amended from time to time, or rules and regulations promulgated thereunder, and court cases interpreting said act. 12. The Oklahoma Firefighters Pension and Retirement Board shall promulgate such rules as are necessary to implement the provisions of this subsection. 13. An alternate payee who has acquired beneficiary rights pursuant to a valid qualified domestic order must fully comply with all provisions of the rules promulgated by the State Board pursuant to this subsection in order to continue receiving his or her benefit. C. The provisions of subsection A of this section shall not apply to a Child Support Enforcement Division order for a support arrearage pursuant to Section 240.23 of Title 56 of the Oklahoma Statutes and current child support payments made pursuant to a valid court order. D. The provisions of subsection A of this section shall not apply to a federal tax levy made pursuant to Section 6331 of the Internal Revenue Code of 1986, as amended, and the collection by the United States on a judgment resulting from an unpaid tax assessment. E. The provisions of subsection A of this section shall not apply in the case of an overpayment to a member or other payee. Such overpayment may be corrected through a return of the overpayment, or an adjustment of future payments, or a combination of these two methods, as approved by the State Board. The term "other payee" shall include, but not be limited to, alternate payees as defined in subsection B of this section, beneficiaries, designated recipients, and other individuals eligible to receive benefits pursuant to Section 49-113 of this title. 22 Pulliam v. Pulliam, 114 A.3d 242, 254 (Md. App. 2015)[Years of service accumulated during marriage contributes to eligibility to participate in DROP and DROP benefits are subject to division even if not enrolled until after divorce.]; Pullo v. Pullo, 926 So. 2d 448, 451 (Fla. 1st D.C.A. 2006) [Former wife entitled to portion of DROP account, even though former husband joined the DROP plan five years after the parties divorced.); Killingsworth v. Killingsworth, 925 So. 2d 977, 982 (Ala. Civ. App. 2005) [Right to participate in DROP is part of vested benefits and DROP election does not change character of husband's retirement benefits nor result in a new post-divorce asset that was not subject to distribution in the divorce.]; Stavinoha v. Stavinoha, 126 S.W.3d 604, 612 (Tex. 14th D.C.A. Houston 2004) [Ex-wife is entitled to a percentage of the community interest in all of the disputed benefits credited to ex-husband's DROP account.]; Swanson v. Swanson, 869 So. 2d 735, 738 (Fla. App. 4 Dist. 2004)[Portion of value of ex-husbands DROP benefits belong to the wife]; Smith v. Smith, 839 So. 2d 1255, 1258 (La. App. 2 Cir. 2003) [Former wife entitled to share of former husband's deferred retirement option plan (DROP) funds which were attributable during the life of their community, even though former husband entered the DROP program after the parties divorced.]. In unpublished opinions, courts in Ohio and California have reached similar results. Collins v. Collins, 2015 WL 4899420 (Ct. App. Ohio 2015); In re Marriage of Ketaily, 2014 WL 5427534 (Ct. App. Cal. Dist. 6 2014). 23 Baker v. Oklahoma Firefighters Pension and Retirement System, 1986 OK 8, ¶4, 718 P.2d 348. 24 Tubbs v. State of Oklahoma ex rel. The Teachers' Retirement System of Oklahoma, see note 14 supra; Larman v. Larman, see note 14, supra. 25 Title 43 O.S. 2011 §121, see note 15 supra. 26 Tubbs v. State of Oklahoma ex rel. The Teachers' Retirement System of Oklahoma, see note 14, supra; Thielenhaus v. Thielenhaus, see note 17, supra.    

850cbb42-a376-4c77-ab03-e3770f16aed1

Laubenstein v. BoDe Tower, LLC

oklahoma

Oklahoma Supreme Court

LAUBENSTEIN v. BODE TOWER, L.L.C.2016 OK 118Case Number: 112105Decided: 12/06/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KEN LAUBENSTEIN and BILLIE WALLACE, Plaintiffs/Appellees,v.BODE TOWER, L.L.C., Defendant/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY, STATE OF OKLAHOMA, HONORABLE NORMAN D. THYGESEN ¶0 Plaintiffs filed a lawsuit against the defendants asserting a nuisance claim. Plaintiffs' cause of action was predicated on the placement of a cellular telephone tower adjacent to their respective properties. Following a bench trial, the lower court entered a judgment in favor of the plaintiffs and directed BoDe Tower, LLC to disassemble the cellular tower. The Court of Civil Appeals, Division IV, affirmed the judgment. We granted a writ of certiorari and conclude the trial court's decision was against the clear weight of the evidence. COURT OF CIVIL APPEALS OPINION IS VACATED AND THE TRIAL COURT'S JUDGMENT FILED JULY 29, 2013 ISREVERSED; ON REMAND THE TRIAL COURT IS DIRECTEDTO ENTER JUDGMENT IN FAVOR OF DEFENDANTS Thomas Marcum, BURRAGE LAW FIRM, Durant, OK, for Defendants-AppellantsD.D. Hayes, HAYES LAW OFFICE, Muskogee, OK, for Plaintiffs-Appellees GURICH, V.C.J. Facts & Procedural History ¶1 BoDe Tower is an Oklahoma limited liability company which owns a tract of land in the Gooseneck Bend area of Muskogee County. The property lies less than three miles outside of the City of Muskogee near a sharp meander in the Arkansas River. In 2009, BoDe Tower began the process of securing authorization from state and federal officials for the construction of a telecommunications tower on the tract in an effort to fill a gap in cellular coverage. Testimony indicated cellular reception was non-existent in the area. One local resident testified he had "zero" reception and was looking forward to future coverage.1 ¶2 BoDe hired an expert engineering firm, Monte R. Lee & Co., to assist with completing mandatory paperwork and ensuring compliance with all regulatory prerequisites.2 Prior to construction of the tower, BoDe was required to obtain clearance from multiple governmental agencies, including: (1) Federal Communications Commission; (2) U.S. Fish & Wildlife Service; (3) Federal Aviation Administration; (4) U.S. Army Corps of Engineers; (5) Oklahoma Department of Agriculture; and (6) Oklahoma Historical Society. BoDe Tower fully complied with all state and federal requirements before constructing the telecommunications tower. Further, no zoning requirements or restrictive covenants prohibited assembly of the tower on BoDe's property. There is no dispute that BoDe's construction of the tower was a lawful endeavor.3 ¶3 As required by federal law, BoDe consulted with local Native American tribes who were given an opportunity to voice concerns over the potential impact the cellular tower might have on historic or cultural sites.4 No objections were made. The FAA, however, conditioned its approval of the proposed siting on installation of specific warning lights designed to alert air traffic.5 BoDe also issued public notice of the planned development in the Muskogee Phoenix and informed nearby residents of the proposed cellular tower. Neighbors and BoDe's principal owner conducted a meeting relating to the project in February 2010. ¶4 On February 9, 2010, adjacent property owners Ken Laubenstein and Billie Wallace filed an action in the District Court of Muskogee County, alleging the proposed cellular tower was a public and private nuisance.6 Although the petition sought to enjoin construction of the tower, Plaintiffs never pursued injunctive relief. Assembly of the tower was finalized sometime in 2010. ¶5 A bench trial was held over five days, spanning from August, 13, 2012 to April 26, 2013. Testimony from a representative of BoDe's engineering consultant established full compliance with all state and federal regulatory requirements prior to installation of the tower. Laubenstein was the only resident plaintiff who testified at the trial. ¶6 The vast majority of Laubenstein's testimony centered around his efforts to build a pristine and isolated personal wildlife refuge around his home. Because he viewed the property as his private sanctuary for birds and animals, Laubenstein disliked any disruption to his solitude. He explained during trial, "I just don't like disorder around me, and I want a clean, clear - - clean environment in which to live."7 In fact, when he first moved into his residence, Laubenstein was immediately unnerved by existing noise, light, and car emissions caused by traffic and security lighting in the area. To help eliminate these irritations, Laubenstein planted 700 trees throughout his acreage. He also built a four-foot earthen berm around the perimeter of his home in an effort to block all noise, light, and car emissions. The following exchange took place during trial: Q. And you were bothered by the car lights coming down -- car lights and sound coming down Woodland Road, and that's why you built this berm and all these plantings, to cover the noise and the light from the travel down the road? A. Well, the plantings, I wanted privacy. You know, the fact that I put - - yes, I don't want traffic noise and lights.8 Laubenstein removed security lighting throughout his entire property to ensure it was completely dark. He even persuaded neighbors to install glare shields on their security lighting to purge any interference with his tranquility. Despite living less than three miles from Muskogee, Laubenstein was also bothered by the reflective glow of city lights, as the illumination interfered with his astronomy hobby. He characterized the area as "semisuburban."9 Laubenstein testified it was his hope and intention to leave his property in an immaculate unchanged condition for future scientific study. ¶7 Laubenstein's nuisance claim was grounded entirely on his dissatisfaction with the tower's appearance and its federally mandated warning lights.10 For example, the heart of his claim is best summarized in the following testimony: Well, from the place that I enjoy sitting the most, and I sit there day and night, it depicts the tower across the way, with its flashing light on top and three lights that are halfway up the tower, and it shows it reflecting in the water, and the reflection comes almost all the way across the water, right to where I am sitting. . . . It's about 10 or 12 feet from where I sit, constantly on and off, red and no red. And it's extremely unnatural and, frankly, it's very annoying. It's more than that, it's intrusive.11 It was clear Laubenstein was particularly fastidious and acutely sensitive to any foreign stimulus on his property. Aside from aesthetic concerns, Laubenstein offered nothing to establish the cellular tower created an environment so inhospitable as to cause "substantial injury to comfort, health, or property." Kenyon v. Edmundson, 1920 OK 351 (syl. 4), 193 P. 739, 740. ¶8 On June 28, 2013, the trial judge announced his ruling, which concluded the cellular tower was a private nuisance. He directed the tower to be removed from the property within sixty days. However, the abatement directive was stayed pending appellate review. BoDe appealed the lower court ruling and COCA affirmed the nuisance finding. In upholding the decision, COCA declined to give weight to the lawful status of the cellular tower under either 50 O.S. 2011 §§ 1 or 4 and held there was sufficient evidence to find a private nuisance in fact. Standard of Review ¶9 Laubenstein requested that the trial court enjoin BoDe from constructing and operating its telecommunications tower. An action for abatement of a nuisance by permanent injunction is equitable in nature. Jackson v. Williams, 1985 OK 103, ¶ 9, 714 P.2d 1017, 1020. "In a case of equitable cognizance, a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity." McGinnity v. Kirk, 2015 OK 73, ¶ 8, 362 P.3d 186, 190 (citation omitted). When reviewing a case at equity, this Court is not bound by the trial court's findings and will consider the whole record and weigh the evidence. Harrell v. Samson Resources Co., 1998 OK 69, ¶ 31, 980 P.2d 99, 107 (citation omitted). Analysis ¶10 We have said that a nuisance "arises from an unreasonable, unwarranted, or unlawful use" of property. Briscoe v. Harper Oil Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36. An alleged nuisance must "substantially interfere with the ordinary comforts of human existence." Kenyon, 1920 OK 351, ¶ 6, 193 P. at 741 (emphasis added). Further, "a mere trifling annoyance, inconvenience, or discomfort" should not be deemed a nuisance. Id. A nuisance action may not be maintained when based on (1) lawful use of the property; (2) which affects solely the "aesthetic taste" of the aggrieved party. Bixby v. Cravens, 1916 OK 406, ¶ 10, 156 P. 1184, 1187. The evidence in this case unequivocally established the tower was lawfully constructed, and the nuisance claim was predicated entirely on Laubenstein's distinctive aesthetic preferences. ¶11 Nuisance claims founded solely on aesthetic harm are not actionable. City of McAlester v. King, 1957 OK 265, ¶ 13, 317 P.2d 265, 270 (rejecting nuisance claim arising from a water tower constructed on an adjacent tract which affected plaintiffs' view and impaired lighting).12 Laubenstein's entire case hinged on the cellular tower being visually unpleasant. In Bixby, 1916 OK 406, 156 P. 1184, we rejected an aesthetic nuisance claim based on a neighbor's construction of a wooden fence between two neighboring properties. As in the present case, the plaintiff in Bixby alleged that the fence was an aesthetic nuisance. Specifically, he argued the fence was unsightly, impaired his view, impeded airflow and light to his premises, and greatly damaged the value of the property. Id. ¶ 2, 156 P. at 1185. We found the complaints were not an actionable nuisance: [T]he fence complained of did not constitute a nuisance and was not erected and maintained purely out of spite and ill will toward complainant. . . but was erected in the exercise of a lawful right of the owner to improve and benefit his own property. The complainant is doubtless a man of education and refinement, and evidently takes great pride in his home and in beautifying the grounds surrounding the same, for all of which he is to be commended. He was doubtless annoyed and harassed at the unsightly view that this alley fence presented. Still the defendants in error had a perfect right to erect the fence and maintain the same to protect their home and their property and add to its privacy, comfort, and convenience, and they were not compelled to consult the 'aesthetic taste' of their neighbors as to the kind of a fence they should build or whether the smooth or the rough side thereof faced in or out, or the color of the paint they should use thereon. Id. ¶ 10, 156 P. at 1187; see also Oliver v. AT&T Wireless Serv., 90 Cal. Rptr. 2d 491, 501 (Cal. Ct. App. 1999) ("[T]he displeasing appearance of an otherwise lawful structure [cellular tower] on one side of a boundary cannot be deemed to substantially interfere with the enjoyment [of plaintiff's property]").13 ¶12 Our jurisprudence demands evidence of substantial interference with the use and enjoyment of property. see, e.g., Kenyon, 1920 OK 351, 193 P. 739 (Defendant's business left animal carcasses on the property, resulting in noxious odors and green fly infestation.); Epps v. Ellison, 1921 OK 279, 200 P. 160 (Cotton oil mill and cotton gin covered area with dust and lint from operations, and emitted steam and exhaust from the engine; noise, dust and emissions caused nearby homes to become uninhabitable and entirely worthless.); City of Tecumseh v. Deister, 1925 OK 661, 239 P. 582 (Defendant's malfunctioning septic system caused raw sewage to flow across plaintiff's property, leading to the death of livestock and made plaintiff's home uninhabitable.); Fairfax Oil Co. v. Bolinger, 1939 OK 350, 97 P.2d 574 (Vibrations from defendant's operation of an oil and gas well caused physical damage to the premises.); Cities Serv. Oil Co. v. Merritt, 1958 OK 185, 332 P.2d 677 (Saltwater pollution from drilling operations rendered landowners water well permanently unpotable.); Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, 933 P.2d 272 (Leaking hydrocarbons from drilling activity poisoned cattle grazing on plaintiff's property.). The aforementioned decisions present facts markedly different from those in the current appeal. In each of the cases, plaintiffs faced either physical injury to their property or the offensive activity rendered their homes uninhabitable. Conclusion ¶13 Considering the totality of the evidence presented in this case, BoDe's cellular tower cannot be deemed actionable nuisance. Our case law prohibits nuisance claims based entirely on aesthetic concerns. It would be wholly unreasonable to allow one individual's visual sensitivities to impede development of cellular phone service for the residents of Muskogee. BoDe Tower undertook significant investment and complied with all regulatory hurdles. The judgment of the Court of Civil Appeals is vacated, and the trial court's judgment in favor of the Plaintiffs is reversed. On remand, the trial court is directed to enter judgment in favor of the Defendants. COURT OF CIVIL APPEALS OPINION IS VACATED AND THE TRIAL COURT'S JUDGMENT FILED JULY 29, 2013 ISREVERSED; ON REMAND THE TRIAL COURT IS DIRECTEDTO ENTER JUDGMENT IN FAVOR OF DEFENDANTS ¶14 Combs, C.J., Gurich, V.C.J., Kauger, Watt, Winchester, Taylor, Colbert, Reif, JJ., concur. ¶15 Edmondson, J., recused. FOOTNOTES 1 Bruce Thompson testified that he had endured difficulty as a result of no telephone service following two separate ice storms. Tr. Vol. IV, p. 69-70. 2 Monte R. Lee & Co. assisted BoDe Tower with obtaining approval of the cellular tower siting. This process necessitated conformity with multiple statutory conditions, including the Telecommunications Act of 1996 (TCA of 1996)(47 U.S.C. § 251 et. seq.); National Environmental Policy Act (NEPA)(42 U.S.C. § 4321 et seq); and the National Historic Preservation Act (NHPA)(16 U.S.C. § 470, et seq.). In addition, BoDe had to obtain specific approval of the siting through the Antenna Structure Registration (ASR) administered by the FCC. 3 Title 50 O.S. 2011 § 1 defines what can be construed as a nuisance: A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or Second. Offends decency; or Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or Fourth. In any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities. (emphasis added). 4 National Historic Preservation Act (NHPA)(16 U.S.C. § 470, et seq.); 36 C.F.R. § 800.3. 5 Title 50 O.S. 2011 § 4 provides: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." COCA determined 50 O.S. 2011 § 4 did not apply to the present case because the cell tower site was not "designated." To reach this conclusion, COCA relied on our prior decision in E.I. Du Pont de Nemours Powder Co. v. Dodson, 1915 OK 256, 150 P. 1085. However, E.I DuPont does not mandate that property be specifically zoned for the activity. It merely required approval of the particular site by a person with statutory authority to issue such a finding. DuPont, ¶ 10, 150 P. at 1088. 6 Billie Wallace was a named party in the petition; however, the record indicates her property was the subject of a foreclosure proceeding, and she did not participate in the trial. Therefore, any claims raised by Ms. Wallace are deemed abandoned. 7 Tr. Vol. I, p. 16. 8 Tr. Vol. II, p. 47. 9 Tr. Vol. II, p. 51. The Court takes judicial notice that the population of Muskogee in 2010 was 39,225. see, http://www.census.gov/quickfacts/table/PST045215/4050050,40101. 10 Although Laubenstein expressed concern over radio frequency (RF) emissions from the tower, he admitted this fear was mere speculation. COCA referenced this testimony when weighing the evidence in support of the trial court's ruling. However, it should be noted that the TCA of 1996 prohibits state regulation of cell tower siting on the basis on RF emissions when the facility is in compliance with FCC regulations. 47 U.S.C. § 332(c)(7)(B)(iv). Section 332(c)(7)(B)(iv) reads: No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC]'s regulations concerning such emissions. Preemption of state law includes claims brought under either the common law or state statute. see Johnson v. American Towers, 781 F.3d 693, 706 (4th Cir. 2015); Farina v. Nokia, Inc., 625 F.3d 97 (3rd Cir. 2010). 11 Tr. Vol. I, p. 56. 12 see also Julian Conrad Juergensmeyer and Thomas E. Roberts, Private Nuisances, Land Use Planning and Development Regulation Law § 14.4, n.26 (3d ed. Apr. 2016 update) citing Rankin v. FPL Energy, LLC, 266 S.W.3d 506 (Tex. Ct. App. 2008) (finding emotional response to obstruction to aesthetic view created by wind farm was not actionable as nuisance claim). 13 Recently U.S. District Judge Timothy D. DeGiusti issued an order granting summary judgment to Kingfisher Wind, LLC rejecting nuisance claims brought by numerous landowners. Walker v. Kingfisher Wind, LLC, Case No. CIV-14-914-D (Doc. 160) (October 13, 2016). As with Laubenstein's claims, aesthetic injuries were the basis of one of the claims in Kingfisher Wind, wherein plaintiffs sought the removal of multiple wind turbines.

943b9f0b-377e-4595-9947-5a968a3b17d0

Martin v. Gray

oklahoma

Oklahoma Supreme Court

MARTIN v. GRAY2016 OK 114Case Number: 114660Decided: 11/08/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Kourtni S. Martin, Petitioner, v. Nicholas L. Gray and Goodville Mutual Casualty Company, Respondents REVIEW OF CERTIFIED INTERLOCUTORY ORDER ¶0 Petitioner sought review of a certified interlocutory order from the District Court of Oklahoma County, Honorable Bryan C. Dixon, which applied Kansas law and dismissed Petitioner's bad-faith claim with prejudice. REVIEW PREVIOUSLY GRANTED; TRIAL COURT REVERSED; CAUSE REMANDED FOR DISMISSAL. Gerard P. Pignato and Dixie A. Craven, PIGNATO, COOPER, KOLKER & ROBERSON, P.C., Oklahoma City, Oklahoma, and Monty L. Cain, CAIN LAW OFFICE, Oklahoma City, Oklahoma, for Petitioner. Sean H. McKee and Matthew Benjamin Free, BEST & SHARP, Oklahoma City, Oklahoma, for Respondent, Goodville Mutual Casualty Company. COLBERT, J. ¶1 The issue in this review of a certified interlocutory order is whether the trial court erred by applying Kansas law to dismiss an insured's claim of bad faith for an insurer's failure to pay uninsured motorist (UM) coverage. This Court holds that Kansas law does not apply to this insured's claim for bad faith and, therefore, the trial court erred. FACTS AND PROCEDURAL HISTORY ¶2 Kourtni S. Martin (Insured) suffered serious injuries from an automobile collision in Oklahoma City with Nicholas L. Gray on May 31, 2013. At the time of the collision, Insured had UM coverage with Goodville Mutual Casualty Company (Insurer). The policy was purchased by her parents while they lived in Kansas. She was, however, a listed/rated driver in the policy. Before the collision, Insured's parents notified the Kansas agent that she was moving to Oklahoma to live with her grandmother and that her vehicle would be garaged in Oklahoma. After the collision, the claim was reported to the agent in Kansas who then transmitted the claim to Insurer which is located principally in Pennsylvania. The claim was adjusted out of Pennsylvania. Insured was unable to locate Gray. Her attempts to serve Gray, or his insurer, in Oklahoma and Texas failed. ¶3 Insured filed this lawsuit against Gray on January 4, 2015, alleging negligence. After service by publication, Gray answered asserting a general denial. Insured sought compensation from Insurer pursuant to her UM policy and negotiations began between Insured and Insurer regarding medical bills and projected future medical bills substantially in excess of $100,000. Insurer offered $27,000 for medical expenses under the "Kansas No Fault Benefits" and $10,000 in UM coverage. ¶4 On August 17, 2015, Insured filed an amended petition which added a breach of contract claim against Insurer1 and a claim for Insurer's bad faith.2 In response, Insurer filed a motion to dismiss the bad-faith claim insofar as Kansas law does not recognize such a claim as a matter of law. The trial court granted Insurer's motion and held Kansas law applied to Insured's claims for breach of contract and bad faith against Insurer. The trial court determined that dismissal of the bad-faith claim affected a substantial part of the merits of the controversy and that an immediate appeal may materially advance the ultimate termination of the litigation pursuant to section 952(b)(3) of title 12 of the Oklahoma Statutes. Litigation of the matter was stayed pending review on January 8, 2016. This Court granted Insured's petition to review the certified interlocutory order. STANDARD OF REVIEW ¶5 "The purpose of a motion to dismiss is to test the law that governs the claim in litigation rather than to examine the underlying facts of that claim." Rogers v. Quiptrip Corp., 2010 OK 3, ¶ 4, 230 P.3d 853, 856. "Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083. The trial court's decision on a choice of law issue is reviewed de novo. Edwards v. McKee, 2003 OK CIV APP 59, ¶ 9, 76 P.3d 73, 76. ANALYSIS ¶6 The trial court applied Kansas law to Insured's contract and bad-faith claims. The trial court applied Kansas law under Insurer's alternative theories of (1) the rule codified at section 162 of title 15 of the Oklahoma Statutes3 or (2) the conflicts of law rule derived from Oklahoma's uninsured motorist statute found at section 3636(A) of title 36.4 Today's question, however, is whether a claim of an insurer's bad faith is independent of a claim for breach of contract for the purpose of conflicts of law analysis.5 ¶7 This Court holds that a claimed violation of an insurer's implied-in-law duty of good faith and fair dealing presents an independent tort pursuant to Christian v. American Home Assurance Company and McCorkle v. Great Atlantic Insurance Company, requiring application of the law of the state with the most significant relationship to the alleged violation. Therefore, the trial court erred when it held that Kansas law applied automatically to Insured's breach of contract and tort claim based on the duty of good faith and fair dealing. ¶8 The trial court appears to have reasoned that Kansas law applied to both claims believing that a bad-faith claim arises out of contract. Insurer relies on Panama Processes, S.A. v. Cities Serv. Co., 1990 OK 66, 796 P.2d 276. There, this Court applied the choice of law rules governing contracts to two alternative breach of duty theories arising out of a letter agreement, (1) "the good faith duty implied in every contract6 and (2) the pure fiduciary duty of the Anglo-American law that arises from a trust-based relationship." Id., ¶ 31, 796 P.2d at 289. The Panama Processes Court noted that "[u]nderlying the breach of duty theory of recovery is the issue whether it should be characterized as sounding in tort or in contract. Oklahoma jurisprudence indicates that it could be characterized as either, since the breach in some instances is a tort arising out of a contractual relationship." Id., ¶ 32, 796 P.2d at 289. However, because the breach of duty theory in Panama Processes was "based on breach of fiduciary obligations stemming from the letter agreement" the choice of law rules concerning contracts were applied. Id. ¶9 Oklahoma jurisprudence does not support reliance on Panama Processes in this matter. In 1977, this Court approved and adopted the rule "that an insurer has an implied duty to deal fairly and act in good faith with its insured and that the violation of this duty gives rise to an action in tort for consequential and, in a proper case, punitive, damages may be sought." Christian v. Am. Home Assurance Co., 1977 OK 141, ¶ 25, 577 P.2d 899, 904. "This is a distinct tort based upon an implied duty of the insurer to act in good faith and deal fairly with its insured. This duty is not consensual, it is imposed by law." Id., ¶ 6, 577 P.2d at 901. A few years later, in McCorkle v. Great Alt. Ins. Co., 1981 OK 128, ¶ 27, 637 P.2d 583, 588, this Court reaffirmed Christian and held that it applies to all types of insurance companies. In doing so, this Court emphasized the tort of bad faith is an "independent and intentional tort." Id., ¶ 22, 637 P.2d at 587. Thus, it is well-established that a bad-faith claim presents a tort. ¶10 The choice of law applicable to a tort claim is the "most significant relationship" test adopted in Brickner v. Gooden, 1974 OK 91, 525 P.2d 632. There, this Court abandoned the rule that the place of the wrong governs the applicable law on all issues of multi-state tort actions and held as a general principle: the rights and liabilities of parties with respect to a particular issue in tort shall be determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties. The factors to be taken into account and to be evaluated according to their relative importance with respect to a particular issue, shall include: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties occurred. Id., ¶ 23. ¶11 The actions by Insurer related to the bad-faith claim appear to have occurred primarily in Oklahoma and Pennsylvania: (1) any injury from the alleged bad faith occurred in Oklahoma where Insured is located; (2) the alleged conduct causing injury from bad faith occurred in Oklahoma or Pennsylvania, where the claim was handled; (3) the domicile of Insurer and Insured are Pennsylvania and Oklahoma, respectively, and (4) the place where the relationship between the parties occurred has yet to be determined. However, because the trial court did not apply the most significant relationship test, there has been no evaluation of these factors according to their relative importance. ¶12 Normally, this matter would have been remanded to the trial court for application of the most significant relationship test to Insured's bad-faith claim. However, the parties have filed a "Joint Motion to Dismiss Appeal" with prejudice based on the "voluntary settlement of all issues related to this matter." "Ordinarily a court would not consider a case once the case has become moot, however, exceptions to the mootness doctrine exist for reasons of public interest or likelihood of recurrence. Pearce v. Oklahoma, 1998 OK 106, ¶ 5, 970 P.2d 175; Payne v. Jones, 1944 OK 86, ¶¶ 4-5, 146 P.2d 113." Shirazi v. Childtime Learning Ctr., Inc., 209 OK 13, ¶ 4 n.4, 204 P.3d 75 (public interest exception to the mootness doctrine applied to uncertainty by the bench and bar concerning recent employment discrimination holdings). "This Court is the 'final arbiter' of whether [the] mootness doctrine applies." In re Doornbos, 2006 OK 904 ¶ 2, 151 P.3d 126. ¶13 This Court determines that the issue of the proper conflicts of law analysis for an insured's claim of bad faith against an insurer under Oklahoma law is one of broad and substantial public interest which has the potential to affect every insured. This cause is remanded to the trial court with instructions to dismiss the action, after mandate has issued, based on the parties' settlement. REVIEW PREVIOUSLY GRANTED; TRIAL COURT REVERSED; CAUSE REMANDED FOR DISMISSAL. CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt Edmondson, Colbert, J.J. DISSENT: Winchester, Taylor, Gurich JJ. FOOTNOTES 1 Insured's breach of contract claim against Insurer alleges: "Goodville breached its contract with Plaintiff by failing and refusing to pay her all of the benefits to which she is entitled up to the policy limits." 2 Insured's bad-faith claim alleges Insurer's failure "to train and educate its claim handlers on proper claim-handling technique and requirements in Oklahoma" resulted in a "woefully inadequate," "delayed," and "biased" investigation "which treated its insured as an adversary." 3 "A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." 4 The rule provides: No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section. Okla. Stat. tit. 36, § 3636(A) (2011). See Bernal v. Charter Cnty. Mut. Ins. Co., 2009 OK 28, ¶ 14, 209 P.3d 309, 316 ("By its own terms, § 3636(A) applies solely to a policy 'issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state . . ..'"). 5 Insured devotes a paragraph of her Brief in Chief to another issue. The issue involved the Insured's Motion for Default [Judgment] or Alternatively to Deem Certain Defenses Waived. Insured argues that "[h]ad the District Court ruled in [Insured's] favor on that issue, [Insurer] would not have been able to file its Motion to Dismiss [Insured's] Bad Faith Claim." That issue, however, was not certified for immediate appeal and, as a result, will not be addressed by this opinion. 6 As this Court has long held: Although a contractual relation may exist between parties, nevertheless a tort may arise in the course of the performance under contract so that a breach of the contract may not be the gravamen of the action, but an intentional wrong may be. The contract in such case is the mere incident creating the relation furnishing the occasion for the tort and giving rise to an action ex delicto, especially where the acts constituting the breach are willful, designed, intentional, or malicious. Hall Jones Oil Corp. v. Claro, 1969 OK 113, ¶ 0, Syl. 1, 459 P.2d 858.

faf18166-dc64-4723-9809-cbb73f9aab30

Vasquez v. Dillard's Inc.

oklahoma

Oklahoma Supreme Court

VASQUEZ v. DILLARD'S, INC.2016 OK 89Case Number: 114,810Decided: 09/13/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JONNIE YVONNE VASQUEZ, Plaintiff/Respondent,v.DILLARD'S, INC., QUALIFIED EMPLOYER, Defendant/Petitioner. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSIONEN BANC ¶0 Defendant/petitioner, Dillard's Inc. (Dillard's/employer), seeks review of the Workers' Compensation Commission's (Commission) order finding the Employee Injury Benefit Act (Opt Out Act), 85A O.S. Supp. 2014 §§201-213 inoperable based upon multiple constitutional infirmities. The plaintiff/respondent, Jonnie Yvonne Vasquez (Vasquez/employee), urges affirmance of the Commission's order finding the Opt Out Act unconstitutional. Having determined that we have authority to address the constitutional challenges presented, the Court addresses a single dispositive issue: whether the Opt Out Act is an unconstitutional special law. We hold that the Opt Out Act is an unconstitutional special law within the meaning of the Okla. Const. art. 5, §59 creating an impermissible select group of employees seeking compensation for work-related injuries for disparate treatment. ORDER OF THE WORKERS' COMPENSATIONCOMMISSION EN BANC VACATED; CAUSE REMANDED. G. Calvin Sharpe, Catherine L. Campbell, Amy D. White, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Defendant/Petitioner, Dillards, Inc.Jay M. Wallace (pro hac vice), Alana Ackels (pro hac vice), BELL NUNNALY & MARTIN LLP, Dallas, Texas, Rabindranath Ramana, CALVERT LAW FIRM, Oklahoma City, Oklahoma, for Plaintiff/Respondent, Jonnie Yvonne VasquezBob Burke, Oklahoma City, Oklahoma, Patrick R. Wyrick, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the State of OklahomaBrandon Burton, Oklahoma City, Oklahoma, Kathleen G. Sumner, Greensboro, NC, Amici Curiae for Academic Experts in support of Respondent VasquezBrandon Burton, Oklahoma City, Oklahoma, Daniel M. Dalmat, Daniel M. Rosenthal, JAMES & HOFFMAN, P.C., Washington, D.C., Amici Curiae for National Employment Law ProjectLarry Derryberry, Douglas A. Rice, DERRYBERRY & NAIFEH, LLP, Oklahoma City, Oklahoma, Amici Curiae for AIA, PCI and NAMIC in support of Respondent Vasquez WATT, J: ¶1 With the constitutionality of the Oklahoma Employee Injury Benefit Act, 85A O.S. Supp. 2014 §§201-213, squarely before this Court in the instant cause, we determine that we have authority to address the special law issues presented pursuant to the legislative directive contained in 85A O.S. Supp. 2014 §213(A)1 and under Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. The core provision of the Opt Out Act, 85A O.S. Supp. 2015 §2032 creates impermissible, unequal, disparate treatment of a select group of injured workers. Therefore, we hold that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 §§201-213, is an unconstitutional special law under the Oklahoma Constitution, art. 2, §59.3 PROCEDURAL POSTURE ¶2 Vasquez, Dillard's employee, injured her neck and shoulder as she lifted shoe boxes while working on September 11, 2014.4 On that date and on September 24th, she filed claims for benefits under Dillard's Opt-Out plan. Dillards denied the claims on October 3 and 10, 2014, respectively. The employee appealed to the Workers' Compensation Commission, filing a Notice of Claim for Compensation on December 5, 2014. ¶3 The employer sought removal to federal court on August 6, 2015 on grounds that the federal court had exclusive jurisdiction under the Employee Retirement Income Security Act (ERISA). The United States District Court for the Western District disagreed and remanded the cause to the Commission on September 30, 2015. The Commission heard arguments in the cause in February, issuing an order in the cause on September 26, 2015. It found that the Opt Out Act: 1) constituted an unconstitutional special law;5 2) denied equal protection to Oklahoma's injured workers;6 and 3) denied injured workers the constitutionally protected right of access to courts.7¶4 On March 17, 2016, Dillard's filed a petition for review with this Court. Extensive briefing ensued by the parties, the Attorney General,8 and various amici curiae. The most recent filing in the cause, the employee's Submission of Supplemental Authority, occurred on the afternoon of July 30th. We issue today's opinion in conjunction with the Legislature's directive that appeals alleging constitutional challenges to the Opt Out Act should be expedited 9 and in recognition that multiple cases concerning challenges similar to the one presented here have currently been stayed by the Commission. DISCUSSION ¶5 a. Constitutional issues are properly before this Courtpursuant to the legislative mandate of 85A O.S. Supp. 2014 §213(A)and Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. ¶6 Dillard's assertions that this Court lacks jurisdiction to hear the instant cause are unconvincing. In §213(A) of the Opt Out Act,10 the Legislature directs that whenever the constitutionality of the Act is challenged, the Supreme Court shall11 retain the appeal. Furthermore, we are instructed to expedite review. ¶7 We have recently determined in Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477, that the Commission has no authority to determine the facial constitutionality of the Opt Out Act as a special law. Therefore, the Commission's determinations of constitutionality were not authorized as a blanket strike of the Opt Out Act. ¶8 The portion of Robinson important to these proceedings is found at ¶14. It provides that "this Court has a duty to review the constitutionality of a challenged legislative enactment when presented with a justiciable case or controversy. . . ." We are presented with such a cause here. ¶9 At issue is a challenge to the constitutionality of the Opt Out Act. Robinson confirms that it is this Court's responsibility to address the issue currently before us. Furthermore, the Legislature has directed us to do so in a timely manner. Therefore, we determine that issues related to the constitutionality of the Opt Out Act are properly before this Court.12 ¶10 b. The Opt Out Act is an unconstitutional special law,creating an impermisible select group of employeesseeking compensation for work-related injuriesfor disparate treatment, in violation ofart. 5, §59 of the Oklahoma Constitution. ¶11 Before addressing the various arguments of the parties, it is helpful to understand the test for determining whether a law violates the special law prohibition of art. 5, §59. Its terms are that: "Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." Statutes facing an art. 5, §59 challenge are considered pursuant to a three-part test to determine constitutonal muster. First, is the law special or general? Second, if the law is special in nature, does a general law apply? And, finally, if a general law is not applicable, is the statute a permissible special law?13 ¶12 The first prong requires us to identify the class. If the statute relates to all persons or things within the class, it is a general law. Where the law singles out less than an entire class of similarly affected persons or things for different treatment, it is a special law. Under the second prong, the question is whether the legislation is susceptible of general treatment or if some special situation makes treatment by a general law impossible. Third, it must be determined whether the special law is so substantially related to a valid legislative objective that it will survive the constitutional challenge.14 ¶13 The above analysis was posited by this Court in Reynolds v. Porter, 1988 OK 88, 760 P.2d 818. We consider the arguments of the parties, in which many of the concerns of the Attorney General are subsumed, in making our determination as to whether the Opt Out is general or special in nature. ¶14. 1) The defined class for special law analysisis made up of injured employees. ¶15 Dillard's contends that there is no disparate treatment of the class at issue in the Opt Out Act. It does so by alleging that the relevant stautorily-created class is composed of "all employers" rather than injured employees. Vasquez insists that the class at issue is that of "injured employees." We consider the employer's argument unconvincing and agree with the employee. ¶16 The employer relies on Grimes v. City of Oklahoma City, 2002 OK 47, 49 P3d 719 for the propisition that the defined class should be considered to be employers rather than employees. Grimes upheld, against a special law attack, the municipality's right to determine the manner in which to support economically the schools within its corporate limits. In so doing, we recognized that the members of the class were the municipalities, all of which were given the same option. ¶17 Grimes is distiguishable on its facts and provides no assistance to the employer's arguments. It did not address any issue related to the workers' compensation scheme or rights among injured employees. Rather, it concerned the authority of municipalities to manage tax revenues in support of select public schools. In determining that no special law was involved and in defining the class at issue, the Grimes court looked to the title of the legislative act, "Municipal support of public school systems." It determined that the title of the act, referring to municipalities, indicated that the class at issue was made up of all municipalities of the state and was general in nature. ¶18 Here, the title of the Opt Out Act makes no mention of employers. Rather, the legisation is entitled as the "Employee Injury Benefit Act." Furthermore, the title of the Administrative Act refers to "workers" rather than employers. Just as the title of the act was considered to encompass the identified class in Grimes, it also serves as legislative intent here that the identified class is that of "injured employees."15 ¶19 2) The Opt Out Act does not guarantee membersof the subject class, all employees, the same rightswhen a work related injury occurs.Rather, it provides employers the authority tosingle out their injured employees for inequitable treatment. ¶20 The employer makes the rather incredible argument that the Opt Out Act provides a baseline of Core Coverage requirement in §203(B) guaranteeing individual injured employees equal treatment. Vasquez relies on the same statutory provision for the proposition that inequitable treatment is specifically allowed. We are convinced by the very language of the statutory provision that the employee's position is viable. ¶21 Title 85A O.S. Supp. 2015 §203(B) provides: The benefit plan shall provide for payment of the same forms of benefits included in the Administrative Workers' Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a scheduled member, death and medical benefits as a result of an occupational injury, on a no-fault basis, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in §§45, 46, and 47 of this title. For this purpose, the standards for determination of average weekly wage, death beneficiaries, and disability under the Administrative Workers' Compensation Act shall apply under the Oklahoma Employee Injury Benefit Act, but no other provision of the Administrative Workers' Compensation Act defining covered injuries, medical management, dispute resolution or other process, funding, notices or penalties shall apply or otherwise be controlling under the Oklahoma Employee Injury Benefit Act, unless expressly incorporated. [Emphasis supplied.] ¶22 Rather than providing employees of qualified plan employers equal rights with those of employees falling within the Workers' Compensation Act, the clear, concise, unmistakeable, and mandatory language16 of the Opt Out Act provides that, absent the Act's express incorporation of some standard, such employers are not bound by any provision of the Workers' Compensation Act for the purpose of: defining covered injuries; medical management; dispute resolution or other process; funding; notices; or penalties. The statutory language itself demonstrates that injured workers under the Opt Out Act have no protection to the coverage, process, or procedure afforded their fellow employees falling under the Administrative Workers' Compensation Act. There is little question that §203 specifically allows the employers creating their own plans to include conditions for recovery making it more difficult for the injured employee falling within to recover for a work-related injury than a counterpart covered by the Administrative Act. ¶23 Analysis under the first prong of the three part test in determining the nature of a law as general or special in nature is accomplished. The class being that of "all employees" rather than "all employers" coupled with the reality that "all employees" are not guaranteed the same rights when injuries occur, we determine that the Opt Out Act is a special law. ¶24 3) The applicable general law is theAdministrative Workers' Compensation Act. ¶25 The second prong of the test requires a determination of whether a general law applies. Dillard's contends that there is no generally applicable legislative provision. Vasquez insists the general law exists in the form of the Workers' Compensation Act. We agree with the employee. ¶26 There is undoubtedly a general law covering the issue of compensation for individuals injured during the course of their employment. Absent the existence of the Opt Out Act, all injured employees, not specifically excluded from the Workers' Compensation Act's coverage, could proceed to seek redress for work-related injuries. The Administrative Workers' Compensation Act defines, with enumerated exceptions, an "employee" as "any person in the service of an employer under any contract of hire or apprenticeship."17 Section 3 of 85A O.S. Supp. 2014 provides that "every employer" and "every employee" shall be bound by the Administrative Act absent exclusivity enumerated in the Act. "Every" ordinarily means "any" or "all" and suggests a broad, expansive meaning inclusive in nature.18 There is no question that its subject is "general" in nature and that all employees covered by its provisions may seek relief thereunder. ¶27 3) The Opt Out Act is not a constitutionallypermissive special law. ¶28 Dillard's final contention is that even if the Opt Out Act is a special law, it is constitutionally permissible because the Act is substantially and reasonably related to a legitimate government objective. Some of the identified underlying goals posited by the employer include: providing a more effective system of identifying and treating workplace injuries; improving access to medical treatment; improving worker health and safety; and encouraging job creation. Dillard's argues that the Legislature intended to accomplish these goals by giving employers the freedom to manage and administer the provision of benefits to their injured employees. Vasquez points to the general law as the Administrative Workers' Compensation Act and argues that there is no distinctive characteristic which warrants treating less than all injured employees similarly. We agree with the employee's reasoning. ¶29 We remain convinced that the employer-enumerated goals of the Opt Out Act cannot save it from the constitutional challenge presented. This Court has previously made it clear we will not accept the invitation of employers to find a discriminatory state statute constitutional by relying on the interests of employers in reducing compensation costs.19 ¶30 This Court recently visited an argument similar to the one presented here in Maxwell v. Sprint PCS, 2016 OK 41, 369 P.3d 1079. The Maxwell employer insisted that deferral of permanent partial disability benefits to a subclass of injured workers under the Administrative Workers' Compensation Act was a constitutionally permmissive special law. ¶31 In Maxwell, we recognized the Legislature's authority to exclude entire classes of employees from coverage under the workers' compensation system generally. Nevertheless, the Court also acknowledged that the Legislature was without power to vary the effect of an award by excluding one group of claimants from benefits accorded other recipients. In so doing, we relied upon the following statement from Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶10, 5 P.3d 594, 598, wherein this Court wrote: For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination.... If there is neither a distinctive characteristic upon which a different treatment may reasonably be founded nor one which furnishes a practical and real basis for discrimination between the two groups within the class, the distinction becomes arbitrary and without relation to the subject matter. (citations omitted.) ¶32 The class at issue here is composed of workers seeking compensation for their work-related injuries. No distinctive characteristic exists for the disparate treatment of injured employees simply upon the basis that the employer has opted out of the general workers' compensation system. ¶32 The heart of the Opt Out Act is §203.Simple excision of the offending provision wouldeviscerate the very foundation of the Oklahoma Employee Injury Benefit Act. ¶33 The Attorney General argues that the Compensation Commission and, presumably, this Court, should either read §203 to provide identical benefits as found within the confines of the Administrative Act, eliminating the disparate treatment of the class, or merely sever the unconstitutional portion of the statute. Although we recognize that the Opt Out Act contains a severance provision providing for severance of any offending provision,20 the suggestion that the Act can be saved by simply requiring that qualified employers treat their employees exactly as the Administrative Act requires, would effectively frustrate any rational reason for an employer to go to the trouble and expense of developing a plan required to mirror the surviving statutory scheme. Such employers would be liable to the same extent as an employer having complied with the Administrative Act. CONCLUSION ¶34 A general law encompasses all of a class. A special law is one that rests on a false or deficient classification.21 We do not correct the Legislature nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma's Constitution.22 ¶35 Since the passage of the dual workers' compensation system, this Court has been asked to rule on a multitude of challenges to the new scheme's constitutionality. In each of those causes, we have begun with the premise that such statutory provisions are presumed to be, and should be construed so as to be, constitutional whenever possible. Often over vigorous special writings, the Court decided the causes on the narrowest grounds possible. Nevertheless, this cause squarely presents the issue of whether the Opt Out Act is an unconstitutional special law demonstrated by the language of a statutory provision which is the heart of the Act's premise. As we consider this issue dispositive, we have not reached other constitutional challenges to the Opt Out Act based on denials of equal protection, due process, and access to courts. ¶36 The constitutionality of the Oklahoma Employee Injury Benefit Act, 85A O.S. 2014 §§201-213 is squarely before this Court in the instant cause. Therefore, we determine that we have authority to address the special law issues presented pursuant to the legislative directive contained in 85 O.S. Supp. 2014 § 213(A)23 and under Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. The core provision of the Opt Out Act, 85A O.S. Supp. 2015 sec. 203,24 creates impermissible, unequal, and disparate treatment of a select group of injured workers. Therefore, we hold that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 §§201-213, is an unconstitutional special law under the Oklahoma Constitution, art. 2, §59.25 ¶37 This action is a direct attack on constitutional grounds pursued because the employee believed her rights were denied under an unconstitutional statutory provision. Neither the United States nor the Oklahoma Constitution delineates the effective date of judicial opinions. We are cognizant that there are a number of causes currently pending in the Commission which have been stayed because they concerned issues similar to those presented here. Therefore, this decision is to be given effect in the immediate cause, in the causes currently being challenged before the Commission and in the appellate pipeline, and prospectively to all future cases after the issuance of mandate.26 ¶38 The cause is remanded for proceedings consistent with the provision of the Court's opinion. ORDER OF THE WORKERS' COMPENSATIONCOMMISSION EN BANC VACATED; CAUSE REMANDED. REIF, C.J., COMBS, V.C.J. (by separate writing), KAUGER, WATT, EDMONDSON, and COLBERT, JJ. - CONCUR GURICH, J. (by separate writing) - CONCURS SPECIALLY WINCHESTER (by separate writing), and TAYLOR, JJ. - DISSENT FOOTNOTES 1 Title 85A O.S. Supp.2014 §213(A), see note 8, infra. 2 Title 85A O.S. Supp. 2015 §203(B) provides "The benefit plan shall provide for payment of the same forms of benefits included in the Administrative Workers' Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a scheduled member, death and medical benefits as a result of an occupatioal injury, on a no-fault basis, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in Sections 45, 46, and 47 of this title. For this purpose, the standards for determination of average weekly wage, death beneficiaries, and disability under the Administrative Workers' Compensation Act shall apply under the Oklahoma Employee Injury Benefit Act, but no other provision of the Administrative Workers' Compensation Act defining covered injuries, medical management, dispute resolution or other process, funding, notices or penalties shall apply or otherwise be controlling under the Oklahoma Employee Injury Benefit Act, unless expressly incorporated." [Emphasis supplied.] 3 The Okla. Const. art. 5, §59 providing: "Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." We do not address whether the Opt Out Act might violate another constitutional special laws provision. See, the Okla. Const. art. 5, §46 providing in pertinent part: The Legislaure shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts . . ." 4 We express no opinion on the merits of the employee's claim. Rather, the issue is left to the Commission on remand. In addition, our holding that the Opt Out Act is unconstitutional eliminates the necessity of enumerating the multiple ways in which Dillard's plan and its coverage provisions are more restrictive or different from those included in the Administrative Act. 5 The Okla. Const. art. 5, §§59 and 46, see note 3, supra. 6 Fair School Finance Council v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135, 1148; McKeever Drilling Co. v. Egbert, 1934 OK 763, ¶15, 40 P.2d 32, 35-36. The terms of §7 are: "No person shall be deprived of life, liberty, or property, without due process of law." 7 The Okla. Const. art. 2, §6 providing in pertinent part: "The courts of this state . . . shall be open to every person and justice . . . shall be administered without sale. . . ." 8 Title 12 O.S. 2011 §1653 (c) 9 Title 85A O.S. Supp. 2014 §213(A) providing: "In any action brought to challenge, in whole or in part, the costitutionality of this act, any party to such action may take a direct appeal from the decision of any lower court to the Supreme Court and the Supreme Court shall retain the appeal. The Supreme Court on an expedited basis shall consider the appeal." 10 Id. 11 Generally, the use of "shall" signifies a command. Zeier v. Zimmer, Inc. 2006 OK 98, fn. 13, 152 P.3d 861; Cox v. State ex rel. Oklahoma Dept. of Human Services, 2004 OK 17, ¶27, 87 P.3d 607, 618; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶7, 921 P.2d 338. Nevertheless, there may be times when the term is permissive in nature. Cox v. State ex rel. Oklahoma Dept. of Human Services, this note, supra; Minie v. Hudson, 1997 OK 26, ¶27, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶9, 619 P.2d 869. 12 Initially, Dillard's asserted that the Court lacked the authority to address the constitutional issues on grounds that the cause was governed by ERISA and that the federal law preempted the Workers Compensation Act. The employer sought removal which was denied by the United States District Court for the Western District of Oklahoma. Its order provides in pertinent part at page 3 (located at p. 122 of the record): ". . . The court concludes that the OIEBA (sic) is part of Oklahoma's statutory scheme governing occupational injuries and workplace liability; in other words, the OIEBA (sic) is part of Oklahoma's statutory scheme governing workmen's compensation. The court further concludes that this action arises under the workmen's compensation laws of Oklahoma. Accordingy, 28 U.S.C. §1445© makes this action nonremovable. The fact that the plan under which plaintiff claims may be (and is presumed to be, for present purposes) an ERISA plan, does not change these conclusions. . . ." To the extent that issues are not briefed, they are considered waived. Rouse v. Oklahoma Merit Protection Comm'n, 2015 OK 7, fn. 2, 345 P.3d 366; Johnson v. Ford Motor Co., 2002 OK 24, fn.2, 45 P.3d 86; Burrows v. Burrows, 1994 OK 129, ¶ 3, 886 P.2d 984. 13 Reynolds v. Porter, 1988 OK 88, ¶5, 760 P.2d 816. 14 Id. 15 Clearly, the class at issue under the Workers' Compensation Act, is also defined as that of injured employees. Recently, in Torres v. Seaboard Foods, LLC, 2006 OK 20, ¶47, 373 P.3d 1057, we declined the employer's invitation to adopt a distinction between the "class of employees" similarly injured under the Administrative Workers' Compensation Act. 16 See, note 11, supra, and the cases cited therein. 17 Title 85A O.S. Supp. 2013 § 2(8)(a). 18 Coffee v. Henry, 2010 OK 4, ¶3, 240 P.3d 1056. 19 Torres v. Seaboard Foods, Inc., see note 15, supra. 20 Title 85A O.S. Supp. 2014 §213(B)(1) providing in pertinent part: ". . . To the extent this act, or any part thereof, is declared to be unconstitutional or unenforceable, it is specifically intended that: 1. For partial invalidity of this act, where any part thereof, is declared to be unconstitutional or invalid, the same shall not affect the validity of the act as a whole, or any part thereof other than the part so decided to be unconstitutional or invalid . . ." 21 Zeier v. Zimmer, see note 11, supra; Jack v. State, 1937 OK 384 ¶8, 82 P.2d 1033; Barrett v. Board of Comm'rs of Tulsa County, 1939 OK 68, ¶ 0, 90 P.2d 442. 22 Zeier v. Zimmer, see note 11, supra; Hovat v. State ex rel. Dept. of Corrections, 2004 OK CIV APP 59, ¶10, 95 P.3d 190, cert. denied, 2004 OK 52, 94 P.3d 80, released for publication by order of the Supreme Court of the State of Oklahoma (2004). 23 Title 85A O.S. Supp.2014 sec. 213(A), see note 9, supra. 24 Title 85A O.S. Supp. 2015 sec. 203, see note 2, supra. 25 The Okla. Constitution art. 5, §59, see note 1, supra. 26 DuLaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶20, 868 P.2d 676, 685. COMBS, V.C.J., concurring specially, with whom Kauger and Colbert, JJ., join: ¶1 I concur in the majority's determination that the Employee Injury Benefit Act (Opt Out Act), 85A O.S. Supp. 2014 §§ 200-213 is an unconstitutional special law within the meaning of Okla. Const. art. 5, § 59. Determining the special law issue to be dispositive, the majority declines to address other constitutional infirmities present in the Opt Out Act. ¶2 I write separately to emphasize that I would expand on the majority's special law analysis and address other areas in which the Opt Out Act is constitutionally deficient. Specifically, in addition to being an unconstitutional special law because it subjects injured workers to disparate court procedure and process, the Opt Out Act fails to provide adequate due process protections. My reasons remain the same as those I set out previously in my separate writing in Coates v. Fallin, 2013 OK 108, 316 P.3d 924. GURICH, J., with whom COLBERT, J., joins, concurring specially: ¶1 The bottom line in the case before us is this: The state of Oklahoma can either allow an employer to opt out1 of the state's workers' compensation system entirely and lose exclusive remedy protections; OR the state can require an employer to provide coverage for work-place injuries under the state's workers' compensation system and be given the protections of exclusive remedy. Because the system as it stands now seeks to allow an employer to both opt out of the workers' compensation system and still be provided with exclusive remedy protections, I concur with the majority in concluding that the Oklahoma Employee Injury Benefit Act (OEIBA)2 is inoperable as a matter of law and must be found unconstitutional in its entirety. However, I write separately to explain several additional concerns. Texas Opt-Out System vs. Oklahoma Opt-Out System ¶2 Texas has, since the inception of its workers' compensation system, allowed employers to opt out.3 Under the Texas Workers' Compensation Act (TWCA),4 an employer can choose whether or not to "subscribe" to workers' compensation insurance.5 If an employer subscribes to workers' compensation insurance under the TWCA, an injured employee "may recover statutorily-prescribed benefits without regard to the employer's fault or the employee's negligence."6 "In exchange, the employee may not bring common-law claims against the subscribing employer."7 Additionally, under the Texas system employees also have the option of opting out--"an injured employee may retain the right to assert common-law claims against a subscribing employer if the employee timely elected in writing to waive workers' compensation insurance coverage."8 When an employee timely waives workers' compensation insurance coverage, "the employer may raise all common-law defenses."9 Thus, under the Texas system, participation in the workers' compensation system is "voluntary and elective as to both employer and employee."10 ¶3 However, the Texas system also gives an employer the option to not subscribe to workers' compensation insurance at all, i.e. opt out.11 If an employer provides no benefits for an on-the-job injury, the "[n]onsubscribing employers' employees retain the right to bring personal-injury claims against their employers" in the courts.12 In defending against such claims, however, a nonsubscribing employer loses all traditional common-law defenses, thus, "encourag[ing] employers to subscribe and penaliz[ing] those who do not."13 ¶4 In addition, employers in Texas who opt out can also establish an alternative benefit plan to provide certain benefits for on-the-job injuries. Importantly, such plans are not required to provide the same benefits as provided for in the TWCA, and the plans are not regulated in any way by the TWCA. Thus, "[w]hile some plans provide adequate coverage, others do not primarily because the State does not regulate the adequacy of the benefits received under the plans. A nonsubscribing employer has the unfettered discretion in determining the amount of benefits it will provide employees under an alternative plan."14 Such alternative benefit plans are, generally speaking, covered by the Employee Retirement Income Security Act (ERISA), and do not "guarantee substantive benefits."15 In Texas, injured workers seeking to recover benefits under such alternative plans may end up in federal court as such claims are removable under ERISA's civil enforcement provision.16 ¶5 Under Oklahoma's newly created workers' compensation system, enacted under Title 85A and effective February 1, 2014,17 employers may continue to provide coverage for workplace injuries under the traditional no-fault workers' compensation system, now governed by the Administrative Workers' Compensation Act (AWCA).18 Employers are provided immunity from civil liability, and "[t]he rights and remedies granted to an employee subject to the provisions of the [AWCA] [are] exclusive of all other rights and remedies of the employee . . . ."19 ¶6 Employers may also "opt out" of the AWCA and instead be governed by the OEIBA.20 The newly enacted system requires employers to choose whether to provide coverage under the AWCA or to maintain an employee benefit plan under the OEIBA.21 Thus, unlike in Texas, an employer in Oklahoma cannot opt out of the workers' compensation system entirely. An employer in Oklahoma who elects to "opt out" not only remains subject to the mandates of the OEIBA,22 but is also subject to the jurisdiction of the Workers' Compensation Commission23 and certain regulations of the Oklahoma Insurance Commissioner.24 In addition, an employer who "opts out" under the OEIBA maintains exclusive remedy protections, and the exclusive remedy protections are "as broad as the exclusive remedy protections of Section 5 of [the AWCA], and thus preclude a covered employee's claim against a qualified employer, its employees, and insurer for negligence or other causes of action."25 Neither the AWCA nor the OEIBA allows an injured worker to opt out by waiving his or her employer's workers' compensation insurance coverage and retaining the right to assert common-law claims in court.26 Oklahoma's opt-out system is an opt-out system in name only. The Dillard's Employee Benefit Plan is an ERISA Plan ¶7 ERISA was enacted by Congress in 1974 and "is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans." Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90 (1983). ERISA "imposes participation, funding, and vesting requirements on pension plans," and "sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans." Id. at 91. However, "ERISA does not mandate that employers provide any particular benefits." Id. "Congress' goal in passing ERISA was to replace the patchwork of state laws governing this area with a uniform body of federal law," and "[o]ne of the tools Congress placed into ERISA to accomplish this goal was a preemption provision." Noyola v. Oasis Car Wash, Inc., 220 F. Supp. 2d 638, 641 (E.D. Tex. 2002). ERISA preempts "'any and all State laws insofar as they may now or hereafter relate to any employee benefit plan' covered by ERISA." Shaw, 463 U.S. at 91 (emphasis added). ¶8 In the case before us, the Dillard's employee benefit plan at issue is an ERISA plan. Dillard's asserted before the Commission that its employee benefit plan is a plan governed by ERISA because it includes both occupational benefits, as required by the OEIBA, and non-occupational death benefits for employees injured while off the job.27 The Commission specifically found that the Dillard's plan is an ERISA plan.28 When Dillard's removed this case to federal court, it argued that the plan is an ERISA plan and governed by such because it "is a multi-benefit plan providing for enhanced benefits" citing ERISA § 4(b)(3) and 29 U.S.C. § 1003(b)(3).29 The Dillard's plan falls under the definition of an "employee welfare benefit plan" because it is a plan established or maintained for the purpose of providing participants or beneficiaries medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, or death.30 In addition, Dillard's is the sponsor, administrator, and fiduciary for the Dillard's plan (all terms specifically defined by ERISA),31 and Dillard's denial of Respondent Vasquez's claim in this case was "in accordance with ERISA Claim Regulations" under 29 C.F.R. 2560.503-1.32 Finally, Respondent Vasquez filed her claim "'seeking to enforce her rights under the terms of the Dillard's Plan, and to clarify her rights to future benefits under the terms of the Dillard's Plan,' which tracks the express language of ERISA's civil enforcement provision."33 ¶9 In addition, § 211(B)(5) of the OEIBA indicates the Legislature intended for all employee benefit plans to be ERISA plans in order to comply with the OEIBA. Section 211(B)(5) of the OEIBA directs that in an appeal from an adverse benefit determination, "[t]he Commission en banc shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e)(1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant's plan, to enforce the claimant's rights under the terms of the plan, or to clarify the claimant's rights to future benefits under the terms of the plan."34 Section 1132(e)(1) of Title 29 of the United States Code, as referenced above in § 211(B)(5) of the OEIBA, is the civil enforcement provision of ERISA that allows a participant in an ERISA plan to "recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."35 Under § 1132(e)(1), an action brought to recover benefits under an ERISA plan may only be brought in a federal district court or a state court of competent jurisdiction.36 The OEIBA is not Preempted by ERISA ¶10 Because the Dillard's Plan is an ERISA plan, the OEIBA is subject to preemption by ERISA.37 If ERISA preempts the OEIBA,38 this Court does not have jurisdiction to decide the constitutional issues presented in this case because Respondent Vasquez's only recourse to recover benefits due her under the terms of the Dillard's plan was by filing an action in a federal district court or a state court of competent jurisdiction, not in the Commission.39 This Court would have jurisdiction to decide the issues in the case but only in a perfected appeal from a state district court.40 However, as I discuss below, the OEIBA is not preempted by ERISA, and the issues in this case can be reviewed by this Court in an appeal pursuant to 85A O.S. Supp. 2013 § 211(B)(7). I agree with the majority that the Commission only had the power to strike down the OEIBA as it was unconstitutionally applied to Respondent Vasquez in this case.41 ¶11 ERISA preempts "'any and all State laws insofar as they may now or hereafter relate to any employee benefit plan' covered by ERISA." Shaw, 463 U.S. at 91 (emphasis added). Thus, under ERISA, a benefit plan must be a "covered employee benefit plan" for preemption to apply. See Dist. of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 129 (1992). "Congress [has] explicitly exempted state workers' compensation schemes from ERISA's purview, leaving intact the states' traditional regulation and oversight of this specialized system of insurance." Combined Mgmt. Inc. v. Superintendent of Bureau of Ins. of State of Me., 22 F.3d 1, 4 (1st Cir. 1994) (internal citations omitted). Thus, certain ERISA plans are exempt from ERISA coverage if the plans are "maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws."42 ¶12 Federal courts in Texas are the only courts that have addressed whether an employee benefit plan written to allow an employer to "opt out" of the state's workers' compensation system is an employee benefit plan "covered by ERISA" or whether the employee benefit plan falls within the exception to preemption reserved for state workers' compensation plans.43 In Hernandez v. Jobe Concrete Products, Inc., 282 F.3d 360 (5th Cir. 2002), an employee injured his back in the course and scope of his employment. After he returned to work he alleged he was required to perform difficult manual labor in contravention of his doctor's instructions and was forced to quit as a result. He sued his former employer in state court for unlawful retaliation, negligence, breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Employer removed the case to federal court alleging that the employee's state law claims were preempted by ERISA because his claims related to an employee benefit plan. The district court dismissed the case, and on appeal, the U.S. Court of Appeals for the Fifth Circuit found that under the Texas workers' compensation system, the employer was a "nonsubscriber" because the employer had elected not to carry insurance coverage under the TWCA, and instead, had elected to adopt its own occupational injury plan to cover on-the-job injuries. The court concluded that because employers, under Texas law, were not required to carry workers' compensation insurance of any kind, the employer's decision to adopt its own plan was not a decision clearly required by Texas law. Id. at 364. The court held that "[b]ecause the exemption in [29 U.S.C.] § 1003(b) was designed to allow states to control their workers' compensation schemes, it should not apply where a 'state voluntarily cede[d] control over certain plans by allowing employers to exist outside of the workers' compensation system.'"44 ¶13 Hernandez is clearly distinguishable because unlike in Texas, compliance with either the AWCA or the OEIBA in Oklahoma is mandatory.45 Employers in Oklahoma must provide workers' compensation coverage through either the AWCA or through an employee benefit plan written to comply with the OEIBA. An employer, under Oklahoma law, cannot choose to exist completely outside of the workers' compensation system by providing no coverage at all for work-place injuries as is the case in Texas. Thus, an employee benefit plan written to comply with the OEIBA is a plan that must necessarily be maintained in order to comply with Oklahoma workers' compensation laws.46 ¶14 In addition, Oklahoma's opt-out system does not relinquish control of work-place injury claims to the courts. Employers who opt out under the OEIBA continue to maintain exclusive remedy protections, and employees are specifically precluded from bringing negligence or other causes of action against their employers in the court system. In addition, the Commission, not the state or federal courts, continues to exercise jurisdiction over work-place injury claims. The inclusion of § 211(B)(5) of the OEIBA47 provides additional evidence that Oklahoma's opt-out system is not a true opt-out system. The Legislature cannot declare in one portion of the OEIBA that employee benefit plans are ERISA plans subject to the civil enforcement provision of ERISA and ERISA preemption, yet in another portion of the OEIBA, dictate that employers must follow certain procedures in administering such plans and continuing to subject employers to the jurisdiction of the Commission. Thus, the OEIBA continues to reflect the type of workers' compensation laws traditionally exempted from ERISA coverage. ¶15 Finally, the state of Oklahoma continues to exercise control over employers who adopt employee benefit plans pursuant to the OEIBA. Although § 203 of the OEIBA provides that no provision of the AWCA defining covered injuries or medical management shall apply, that same section also requires opt-out plans to include certain forms of benefits on a no-fault basis with "dollar, percentage, and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits" found in the AWCA.48 Additionally, although § 202 of the OEIBA provides that "neither the Workers' Compensation Commission, the courts of this state, or any state administrative agencies shall promulgate rules or any procedures related to design, documentation, implementation, administration or funding of a qualified employer's benefit plan," § 202 also requires qualified employers to register their employee benefit plans with the state Insurance Commissioner and to comply with any rules promulgated by the Commissioner regarding such registration compliance.49 Section 204 also requires a qualified employer to either "self-fund or insure benefits payable under the benefit plan," and mandates an employer to "secure compensation to covered employees."50 ¶16 "Congress' intention in crafting the § 1003(b)(3) exemption was to allow states to keep control over their workers' compensation systems."51 Because the state of Oklahoma continues to exercise control over the workers' compensation system and does not allow employers to exist completely outside of that system, the exemption from ERISA coverage continues to apply. The Dillard's plan in this case was maintained solely for the purpose of complying with Oklahoma's workers' compensation laws under 29 U.S.C. § 1003(b)(3), and ERISA preemption does not apply. The OEIBA is Unconstitutional ¶17 "Article V, section 46 [of the Oklahoma Constitution] is an unequivocal mandate to the Legislature. Under no circumstances is the Legislature allowed to pass a special law regarding one of the subjects listed in section 46." Lafalier v. Lead-Impacted Cmtys. Relocation Assistance Trust, 2010 OK 48, ¶ 26, 237 P.3d 181, 192. Included within the list of subjects is a prohibition against "[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate." Okla. Const. art. 5, § 46 (emphasis added). ¶18 "'In a § 46 attack, the only issue to be resolved is whether a statute upon a subject enumerated in that section targets for different treatment less than an entire class of similarly situated persons or things.'" Zeier v. Zimmer, 2006 OK 98, ¶ 11, 152 P.3d 861, 866 (citing Reynolds v. Porter, 1988 OK 88, 760 P.2d 816). "The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things." Id., ¶ 13, 152 P.3d at 867. "The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the § 46 interdiction of special law has been offended." Id. ¶19 In the case before us, the class of similarly affected persons is injured workers, and the AWCA establishes generally applicable procedures for awarding benefits to such workers. An injured worker proceeding under the AWCA would be subject to the following procedures governing the adjudication of benefits. Under the AWCA, an employee must report an injury to his or her employer within 30 days.52 Claims for compensation are heard by an administrative law judge who "shall hold a hearing on application of any interested party, or on its own motion." 85A O.S. Supp. 2013 § 71(B). At the hearing, "the claimant and the employer may each present evidence relating to the claim," and the evidence may include verified medical reports which shall be accorded such weight as may be warranted when considering all evidence in the case." 85A O.S. Supp. 2013 § 71(C)(1). The administrative law judge "shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence." 85A O.S. Supp. 2013 § 71(C)(1)(b)(2). An injured worker may appeal the decision of an administrative law judge to the Commission. After holding a hearing, the Commission "may reverse or modify the decision only if it determines that the decision was against the clear weight of the evidence or contrary to law." 85A O.S. Supp. 2013 § 78(A). Although an injured employee and his or her employer may settle the case at any time, they must "file a joint petition for settlement with the Commission." 85A O.S. Supp. § 87. Such joint petition must be "approved by the Workers' Compensation Commission or an administrative law judge," and "[a]n official record shall be made by an official Commission reporter of the testimony taken to effect the Joint Petition." 85A O.S. Supp. 2013 § 115. ¶20 In stark contrast, an injured worker proceeding under the OEIBA, and the Dillard's plan specifically, is subject to the following procedures governing the adjudication of benefits. Under the Dillard's plan, an injured employee must report an injury by the end of his or her work day. Administrative Record at 181. All claims are initially decided by a company-designated claims administrator. No hearing of any kind is held by the claims administrator regardless of whether the injured worker seeks an "urgent or non-urgent" "pre-service claim for medical benefits" or whether the injured worker seeks a "post-service medical benefit, disability benefit, disfigurement benefit, occupational death benefit or non-occupational death benefit claim." Administrative Record at 191-93. The claims administrator is only required to "provide a written or electronic notice to the claimant" notifying him or her of any adverse benefit determination.53 ¶21 An injured employee may appeal an adverse benefit determination by the claims administrator to an appeals committee, which is a committee comprised of individuals selected by the company. Administrative Record at 149; 166. The injured worker may "submit written comments, documents, records, and other information relating to the claim for benefits," and may request "reasonable access to, and copies of, all documents, records, and other information that is [r]elevant to the claimant's claim for benefits (as determined by the Appeals Committee)." Administrative Record at 195. But again, the appeals committee holds no hearing and is only required to "provide notice to the claimant . . . of the Plan's benefit Determination . . . ."54 ¶22 The Dillard's plan also provides that "[e]very interpretation, choice, determination, or other exercise by the Claims Administrator or Appeals Committee of any power or discretion . . . shall be given the maximum deference provided by law and shall be conclusive and binding upon all parties having or claiming to have an interest under the Plan . . . ." Administrative Record at 188. Finally the Dillard's plan provides that the appeals committee shall have final authority regarding any decision made with respect to the administration of the plan and that "[t]here shall be no de novo review by any arbitrator or court of any decision rendered by the Appeals Committee and any review of such decision shall be limited to determining whether the decision was so arbitrary and capricious as to be any abuse of discretion." Id. Although the OEIBA allows an injured worker to appeal an adverse benefit determination to the Commission, the Commission can only "rely on the record established by the internal appeal process" and "[a]ny award by the administrative law judge or Commission shall be limited to benefits payable under the terms of the benefit plan . . . ."55 ¶23 In addition, at any time during the claims process, the claims administrator can perform a claim evaluation and demand a final claim settlement which releases the company from "any further known and unknown benefit and all other injury-related claims." Administrative Record at 187. If an injured worker refuses to accept the claims administrator's demand and unilateral final claim evaluation, "no further benefits will be payable" and the worker has no further recourse. Id. ¶24 The OEIBA is an impermissible special law because the procedures governing the adjudication of benefits under the OEIBA differ significantly from the procedures governing the adjudication of benefits under the AWCA.56 And again, because employers are not truly allowed to opt out of the workers' compensation system and remain subject to the jurisdiction of the Commission, such differential treatment cannot withstand the constitutional prohibitions of art. 5, § 46. The OEIBA is an unconstitutional special law.57 Severability ¶25 Dillard's has requested that if the Court finds the OEIBA unconstitutional, any unconstitutionality be remedied by striking § 209(A), the exclusive remedy provision of the OEIBA. Dillard's argues that striking exclusive remedy would allow employees, whose employers have opted out, to seek recourse for workplace injuries through private causes of action in the court system. But § 213 of the OEIBA--the Invalidity Clause--specifically provides that if "this act, or any part thereof, is declared unconstitutional or unenforceable, it is specifically intended that . . . [t]he rights and obligations of a qualified employer and its employees shall be subject to the exclusive remedy provisions of Section 5 of [the AWCA] . . . ."58 The Legislature has clearly expressed its intent to not allow workers' compensation claims to be adjudicated in the courts if the OEIBA is found unconstitutional. In addition, we cannot presume the Legislature would have enacted the remaining provisions of the OEIBA were this Court to sever all of its invalid portions.59 Thus, the only remedy is to strike the OEIBA in its entirety.60 Injured employees are not left without a remedy because under § 213 employers who have "opted-out" must still provide workers' compensation benefits to their employees to the extent the employer "would be liable to employees in compensation for such injuries under the [AWCA]."61 Conclusion ¶26 Workers' compensation "is a mutual compromise in which the employee relinquishes his/her right to sue for damages sustained in job-related injuries[,] and the employer accepts no-fault liability for a statutorily prescribed measure of damages." Evans & Assocs. Utility Srvcs. v. Espinoza, 2011 OK 81, ¶ 14, 264 P.3d 1190, 1195. "[W]orkers' compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker's employment . . . ." Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 8, 127 P.3d 572, 575 (emphasis added). "[E]xclusivity is at the heart of the essential Grand Bargain between employers and employees . . . [and] is workers' compensation."62 ¶27 "[T]his Court has long recognized that the protection of employees from the hazards of their employment is a proper subject for legislative action . . . ." Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d 924, 925. The Legislature, in exercising such power, is free to eliminate the workers' compensation system entirely, abolish exclusive remedy protections for employers, and leave work-place injury claims to the courts. However, the Legislature is not free to substantially reduce benefits for some injured workers under the guise of an "opt-out" system and force such injured workers to remain within the system through the use of exclusive remedy. I concur with the majority that the OEIBA is unconstitutional in its entirety. FOOTNOTES 1 Texas and Oklahoma are the only states to date that have enacted "opt-out" systems. Several states, including Tennessee and South Carolina, have considered opt-out legislation in the past few years but to date, no other state has enacted an opt-out system. See Jennifer C. Jordan, Opt Outs to Workers' Compensation: The Real Disconnect in What is Being Said and What is Being Implemented, LexisNexis Legal Newsroom Workers Compensation Law, Jan. 22, 2016. This same article notes that "[s]tates such as Arizona, Indiana, Georgia, Arkansas, Wisconsin and West Virginia were all mentioned . . . as potentially considering similar legislation." Id. 2 See 85A O.S. Supp. 2013 §§ 200-213. The Legislature enacted the OEIBA in 2013, and the Act went into effect on February 1, 2014. Respondent Vasquez was injured on September 11, 2014, and thus, the parties agree that the 2013 Act applies in this case. See Petitioner Dillard's, Inc.'s Brief-in-Chief at 8; Attorney General's Brief on the Merits of the Constitutional Claims at n.2; Respondent's Brief-in-Chief at n.2. 3 Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552 (Tex. 2001) ("[F]rom its inception, participation in the Act has been voluntary."). See also Middleton v. Tex. Power & Light Co., 185 S.W. 556, 559 (Tex. 1916). 4 See Tex. Lab. Code § 401.001 et seq. 5 See Lawrence, 44 S.W.3d at 556 (Baker, J., dissenting). 6 Id. at 555 (citing Tex. Lab. Code §§ 406.031; 406.033 and Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)). 7 Id. (citing James v. Vernon Calhoun Packing Co., 498 S.W.2d 160, 162 (Tex. 1973)). 8 Id. (citing Tex. Lab. Code § 406.034(b)). 9 Id. (citing Tex. Lab. Code § 406.034(d)). 10 Id. at 552 (majority op.) (citing Paradissis v. Royal Indem. Co., 507 S.W.2d 526, 529 (Tex. 1974)). 11 Id. at 555 (Baker, J., dissenting) (citing Tex. Lab. Code § 406.002). 12 Id. (citing Tex. Lab. Code § 406.033). 13 Id. (citing Tex. Lab. Code § 406.033(a) and Kroger Co., 23 S.W.3d at 349). 14 Phil Hardberger, Texas Workers' Compensation: A Ten-Year Survey--Strengths, Weaknesses, and Recommendations, 32 St. Mary's L.J. 1, 7 (2000). 15 Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016). ERISA seeks only "to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures." Id. 16 See 29 U.S.C. § 1132(e)(1). See also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987). 17 Senate Bill 1062 was enacted during the 2013 legislative session and repealed the Workers' Compensation Code. Enacted in its place in Title 85A was the Administrative Workers' Compensation Act (§§ 1-125), the Oklahoma Employee Injury Benefit Act (§§ 200-213), and the Workers' Compensation Arbitration Act (§§ 300-328). Section 400 dissolved the Workers' Compensation Court. Terms used in the AWCA are referenced in the OEIBA, and § 201 of the OEIBA specifically directs that "[u]nless otherwise defined in this section, defined terms in the [AWCA] shall have the same meaning in this act." 85A O.S. Supp. 2013 § 201(B). 18 See 85A O.S. Supp. 2013 §§ 1-125. 19 85A O.S. Supp. 2013 § 5. 20 85A O.S. Supp. 2013 §§ 200-213. 21 See 85A O.S. Supp. 2013 § 210(B) ("An employer who is not a qualified employer shall comply with the provisions of the [AWCA].)." 22 See, e.g., 85A O.S. Supp. 2013 § 203(B) ("The benefit plan shall provide for payment of the same forms of benefits included in the [AWCA] for temporary total disability, temporary partial disability, permanent partial disability, vocational rehabilitation, permanent total disability, disfigurement, amputation or total loss of use of a scheduled member, death, and medical benefits as a result of an occupational injury on a no-fault basis, and with dollar, percentage, and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in [the AWCA]. . . ."). 23 As discussed in more detail below, the OEIBA allows the Commission to review an adverse benefit determination by an opt-out employer. 85A O.S. Supp. 2013 § 211. 24 The OEIBA requires a qualified employer to either "self-fund or insure benefits payable under the benefit plan," but such employer must "secure compensation to covered employees." 85A O.S. Supp. 2013 § 204(A-B). An employer who fails to fulfill such requirements "is not relieved of the obligation for compensation to a covered employee." 85A O.S. Supp. 2013 § 204(D). In addition, "[a]n employer that has elected to become a qualified employer . . . shall notify the Insurance Commissioner in writing of the election and the date the election is to become effective . . . and [s]uch qualified employer shall pay the Commissioner an annual nonrefundable fee of [$1,500.00] on the date of filing written notice and every year thereafter." 85A O.S. Supp. 2013 § 202(B). 25 85A O.S. Supp. 2013 § 209. 26 I discuss the Texas opt-out system to emphasize the fact that employers who completely opt out of the state workers' compensation system are subject to tort liability in a court system and no longer retain exclusive remedy protections. Whether a system similar to the Texas opt-out system is constitutional under the Oklahoma Constitution is an open question and not the question before the Court in this case. 27 Record on Appeal at 251. 28 Id. 29 Record on Appeal at 101. 30 Section 1002 of ERISA defines an "employee welfare benefit plan" broadly to include: [A]ny plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). 29 U.S.C. § 1002. 31 Record on Appeal at 104. 32 Record on Appeal at 105. 33 Record on Appeal at 101. 34 85A O.S. Supp. 2013 § 211(B)(5). Section 211(B)(5) was amended in 2015 to provide: 5. If any part of an adverse benefit determination is upheld by the committee, the claimant may then file a petition for review with the Commission within one (1) year after the date the claimant receives notice that the adverse benefit determination, or part thereof, was upheld. The Commission shall appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo. The Commission shall prescribe additional rules governing the authority and responsibility of the parties, the administrative law judge and the Commission during the appeal processes. The administrative law judge and Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e)(1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant's plan, to enforce the claimant's rights under the terms of the plan, or to clarify the claimant's rights to future benefits under the terms of the plan[.] 85A O.S. Supp. 2015 § 211(B)(5). 35 29 U.S.C. § 1132(a)(1)(B). 36 Section 1132(e)(1) provides in its entirety: (e) Jurisdiction (1) Except for actions under subsection (a)(1)(B) [to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan] of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section. 29 U.S.C. § 1132(e)(1). 37 The practical effects of ERISA preemption in this case cannot be understated. Amicus Curiae in this case summarizes such effects as follows: [O]nce a 'qualified' employer's Benefit Plan is approved under §203 as an ERISA Benefit Plan, the State is completely preempted from exercising any authority over the design, documentation, implementation, administration, or funding of the ERISA Benefit Plan relating to on-the-job injuries sustained by Oklahoma citizens. . . . Thus, ERISA cannot be used to force Benefit Plans to provide injured workers the same benefits as mandated by the AWCA. . . . . Once an ERISA Benefit Plan satisfies § 203, state authority terminates. ERISA Benefit Plans would have unfettered 'discretion' to impose significant restrictions and limitations on claims. Disputes which are the subject of an ERISA Benefit Plan could be subject to federal court jurisdiction, as provided by ERISA, with a standard of review that is inferior to that for the claim of an injured worker whose employer has not opted-out. . . . AIA, PCI and NAMIC's, Amicus Curiae Brief in Support of Respondent, Vasquez, and in Favor of Affirmance at 5; 8 (citing Nance v. Sun Life Assurance Co. of Canada, 294 F.3d 1263, 1269 (10th Cir. 2002)) (emphasis added). 38 Other scholarship explains the consequences of ERISA preemption as follows: Because ERISA itself does not contain any substantive requirements for benefit levels--it merely requires that plans deliver what they promise to deliver--ERISA preemption is substantively empty. Handling payment of benefits under an ERISA plan means that employers would in effect be released from complying with any state-mandated substantive level of workers' compensation benefits. While an alternative plan might provide benefit levels that are substantively commensurate with state levels, it would not be required to do so as a matter of law. In effect, a previously mandatory benefit--one that was provided in exchange for relinquishment of tort rights--will have been converted to a discretionary benefit of the type ERISA was meant to regulate. Michael C. Duff, Are Workers' Compensation "Alternative Benefit Plans" Authorized by State Opt-Out Schemes Covered by ERISA?, 45 Brief 22, 23 (Spring 2016) (emphasis added). The Commission concluded that the Dillard's plan in this case is an ERISA plan, but because the plan "include[d] non-occupational death benefits, in addition to the benefits required under Section 203 of the Opt-Out Act, it does not fall within the ERISA exemption for plans 'maintained solely for the purpose of complying with applicable . . . workmen's compensation laws . . . .'" Record on Appeal at 251. The Commission's order recently issued in In re Claim of: Alexis L. Foster, CM-2016-01539K, and filed as supplemental authority in this case, sheds further light on the Commission's interpretation of ERISA as it applies in this case. In Foster, the Commission concluded that "[b]ecause a state cannot regulate an ERISA Plan, the Commission was not free to re-write Dillard's Plan by removing the offending definitions, which were authorized by the unconstitutional provision of the Opt-Out Act. Nor could the Commission decide the case on the basis of its re-writing of the Plan." Submission of Supplemental Authority, In re Claim of: Alexis L. Foster, CM-2016-01539K, Commission Order at 4. But the consequences of ERISA preemption are much more far-reaching. If ERISA preempts the OEIBA, the Legislature cannot, among other mandates, require an alternative benefit plan to provide for payment of the same forms of benefits included in the AWCA. If ERISA preempts the OEIBA, the Legislature cannot provide exclusive remedy protections to employers who adopt such alternative benefit plans, and the Legislature cannot mandate that an opt-out employer provide minimum appeal rights, including an appeal to the Commission. In all likelihood, if ERISA preemption applies, the Legislature cannot require qualified employers to register their employee benefit plans with the state Insurance Commissioner or comply with any rules promulgated by the Commissioner regarding such registration compliance. 39 The Legislature's attempt to make the Commission a "court of competent jurisdiction" under ERISA's civil enforcement provision found in 29 U.S.C. § 1132(e)(e)(1) is invalid. In enacting the AWCA, the Legislature repealed Title 85--the previous Workers' Compensation Code, which created and authorized the Workers' Compensation Court to function as a court of record. However, the Workers' Compensation Court was never a court of general jurisdiction and only had jurisdiction to hear and decide cases involving work-related injuries. The Commission remains a body with limited jurisdiction. Administrative law judges appointed by the Commission replaced Article 7 judges serving on the Workers' Compensation Court. See 85A O.S. Supp. 2013 §§ 19; 27; 400. The Commission and its administrative law judges have only quasi-judicial power consistent with any other administrative agency. More importantly, the expressed intent of the AWCA was to replace the Workers' Compensation Court, a court of record, with an administrative system. Provisions throughout Title 85A make clear that the Commission is an executive branch agency for all purposes and is not a court (with the full power of the judiciary) under any circumstances. Section 19(A) of the AWCA creates the Workers' Compensation Commission, which is "an executive agency of the State of Oklahoma. . . ." 85A O.S. Supp. 2013 § 19(A). Section 201 of the OEIBA specifically provides that the "'Commission'" when referred to in the OEIBA, "means the Workers' Compensation Commission under the Administrative Workers' Compensation Act." 85A O.S. Supp. 2013 § 201(A)(2) (emphasis added). 40 The Commission is not an intermediate appellate court established by the Legislature under Art. 7, § 1 of the Oklahoma Constitution for any purpose. 41 The Commission did not have the power to declare the OEIBA facially unconstitutional in the case before us. See Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, ¶ 15, 371 P.3d 477, 484. 42 29 U.S.C. § 1003(b)(3) (emphasis added). Section 1003 of Title 29, entitled "Coverage," provides in part: (b) The provisions of this subchapter shall not apply to any employee benefit plan if-- (1) such plan is a governmental plan (as defined in section 1002(32) of this title);(2) such plan is a church plan (as defined in section 1002(33) of this title) with respect to which no election has been made under section 410(d) of Title 26;(3) such plan is maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws;(4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or(5) such plan is an excess benefit plan (as defined in section 1002(36) of this title) and is unfunded. 29 U.S.C. § 1003(b) (emphasis added). 43 As discussed above, prior to Oklahoma, Texas is the only state to have enacted an opt-out system. As one scholar has noted, however, the cases decided by the federal courts in Texas arose in a period in which there was no sense that alternative plans might threaten to supplant traditional workers' compensation systems. In effect, different questions were being answered than the one being ask now. Will alternative benefit plans systematically deprive injured workers of adequate benefits for work-related injuries, thereby creating the potential for federal involvement in an area that has historically been exclusively a matter of state regulation? Alternative plans create the potential for shifting costs through undercompensation of workplace injuries by less generous private plans to federal programs, and may additionally transfer disputes over the compensability of workplace injuries to federal courts. Duff, supra note 38, at 23-24. 44 Id. See also Rojas v. DAJ Enter. Inc., 2001 WL 682223, at *3 (W.D. Tex. 2001) (concluding that "[i]n constructing a workers' compensation scheme that offers employers a choice between choosing to subscribe to workers' compensation insurance and choosing not to do so, the Texas scheme foregoes the standard mandatory workers' compensation system"); Guilbeaux v. 3927 Found. Inc., 177 F.R.D. 387, 393 (E.D. Tex. 1998) (concluding that "[i]f an employer is allowed to operate outside of the workers' compensation system, as employers in Texas are allowed to do, claims against those employers are left to the courts," and "[t]hus, the State of Texas has fashioned its workers' compensation scheme in such a way as to forgo control over injury or disability claims lodged against non-subscribing employers"). 45 Section 210 of Title 85A provides that "[a]n employer who is not a qualified employer [under the OEIBA] shall comply with the provisions of the [AWCA]." 85A O.S. Supp. 2013 § 210 (emphasis added). 46 Two federal district courts in Texas have held that whether or not an employer opted into the TWCA, such choice was made solely to comply with the TWCA, and therefore, ERISA preemption did not apply, providing additional support for the conclusion that the OEIBA is not preempted by ERISA. See Walker v. Health Benefit Mgmt. Cost Containment, Inc., 860 F. Supp. 1163 (N.D. Tex. 1994); Foust v. City Ins. Co., 704 F. Supp. 752 (W.D. Tex. 1989). 47 Section 211(B) provides in relevant part: The benefit plan shall provide the following minimum appeal rights: 5. If any part of an adverse benefit determination is upheld by the committee, the claimant may then file a petition for review with the Commission within one (1) year after the date the claimant receives notice that the adverse benefit determination, or part thereof, was upheld. The Commission shall appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo. The Commission shall prescribe additional rules governing the authority and responsibility of the parties, the administrative law judge and the Commission during the appeal processes. The administrative law judge and Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e)(1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant's plan, to enforce the claimant's rights under the terms of the plan, or to clarify the claimant's rights to future benefits under the terms of the plan . . . . 85A O.S. Supp. 2013 § 211(B)(5). 48 85A O.S. Supp. 2013 § 203. 49 85A O.S. Supp. 2013 § 202. 50 85A O.S. Supp. 2013 § 204. 51 Guilbeaux, 177 F.R.D. at 393-94. Congress also expressed its intent to keep federal courts out of state workers' compensation systems by preventing removal of "[a] civil action in any State court arising under the workmen's compensation laws of such State . . . ." 28 U.S.C. § 1445(c). In the case before us, Dillard's attempted to remove this case to federal court. The federal court specifically relied on this provision in remanding this case to the Commission, finding that "the O[EI]BA is part of Oklahoma's statutory scheme governing occupational injuries and workplace liability; in other words, the O[EI]BA is part of Oklahoma's statutory scheme governing workmen's compensation." Record on Appeal at 122. 52 Form CC-Form-1A provides that "[u]nless oral or written notice is given to the employer within thirty (30) days, the claim for compensation may be forever barred." Forms, Oklahoma Workers' Compensation Commission, https://ok.gov/wcc/Forms/index.html (last visited Aug. 18, 2016). Section 69 of the AWCA provides that a claim for compensation must be filed with the Commission "within one (1) year from the date of injury." 85A O.S. Supp. 2013 69(A)(1). 53 Administrative Record at 193. The notice of adverse benefit determination must include certain requirements including, among other requirements, "a description of the Plan's review procedures," and the "specific reason or reasons for the Adverse Benefit Determination." Administrative Record at 194. 54 Administrative Record at 195. As discussed above, the OEIBA requires the Dillard's Plan to provide such "minimum appeal rights." See 85A O.S. Supp. 2013 § 211(A-B). 55 85A O.S. Supp. 2013 § 211. Although § 211 was amended in 2015 to allows the Commission to "appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo," the Commission is still limited to relying on "the record established by the internal appeal process" and is "limited to benefits payable under the terms of the benefit plan . . . ." 85A O.S. Supp. 2015 § 211(A-B). If the Commission and the appointed ALJ are limited to relying on the record established by the internal appeal process, then the trial de novo is not actually a trial de novo. 56 Dillard's specifically acknowledges that the purpose of the opt-out act was to provide employers with the freedom to create and manage workers' compensation benefits and to allow employers to "set procedure for reviewing claims and provid[e] coverage that is tailor-made to an employer's unique work environment." Petitioner Dillard's, Inc.'s Brief-in-Chief at 25 (emphasis added). 57 The above discussion refers only to the procedural differences between the AWCA and the Dillard's plan. The difference in substantive benefits is also striking. See Respondent's Brief-in-Chief at 6-8. 58 85A O.S. Supp. 2013 § 213(B). 59 See Douglas v. Cox Ret. Props., Inc., 2013 OK 37, ¶ 12, 302 P.3d 789, 794. 60 No changes were made to the OEIBA during either the 2014 or 2016 legislative sessions. In 2015, the Legislature amended §§ 203, 205, and 211 of the OEIBA. See 2015 Sess. Laws 1565-1570. The amendment to § 203, which concerns information submitted to the Insurance Commissioner as part of the application for approval as a qualified employer, does not affect the core provision of § 203. The amendment to § 205 appears only to have corrected a typo, and thus, is procedural. The amendment to § 211, which changed the appeal process and the standard of review, does not apply to Respondent Vasquez in this case because the standard of review applicable to workers' compensation cases is that which is in effect when the claim accrues. Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1007, 1113. However, the amendment to the appeal process and standard of review in § 211 does not cure the constitutional deficiencies found in the OEIBA. The core provisions of the OEIBA have remained substantively unchanged since its enactment in 2013. The OEIBA is unconstitutional in its entirety. Any amendment made to the statue in 2015 is likewise void. See Poafpybitty v. Skelly Oil Co., 1964 OK 162, 394 P.2d 515, 518 ("Amendments are to be construed together with the original act to which they relate as constituting one law, and also together with other statutes on the same subject as part of a coherent system of legislation."). 61 See 85A O.S. Supp. 2013 § 213(B)(3) ("To the extent this act, or any part thereof, is declared to be unconstitutional . . . an employer that becomes a qualified employer under this act shall be liable for injury to employees only to the extent to which an employer that complied with the provisions of the [AWCA] would be liable to employees in compensation for such injuries under the [AWCA]."). See also 85A O.S. Supp. 2013 § 213(B)(4) of the OEIBA (allowing qualified employers 90 days "from any final decision declaring this act or any part thereof unconstitutional to secure compliance with the Administrative Workers' Compensation Act" ). 62 Duff, supra note 38, at 24 (emphasis added). WINCHESTER, J., with whom Taylor, J., joins, dissenting: ¶1 I respectfully dissent. The majority opinion emphasizes that statutory provisions are presumed constitutional, that the Court's function isn't to correct the Legislature, and that the Court should rule on the narrowest grounds possible. Unfortunately, the majority's result violates all three of these basic tenets. Neither the majority or concurring opinions, nor the Commission set forth or address the specific facts in this case, a simple undertaking which would allow the Court to make a narrow ruling that preserves the integrity of the Opt Out Act and avoids a resort back to the traditional system the Legislature sought to avoid. ¶2 At the heart of this case was whether Vasquez, the employee, should receive benefits for a preexisting condition. In September, 2014, Vasquez injured her shoulder/upper neck while at work for Dillard's. Dillard's provided coverage for most of her treatment under Dillard's Plan. Vasquez submitted a claim for an MRI in September, 2015. Dillard's sought the opinions of two doctors to review Vasquez's medical files and they determined her injury was the result of a preexisting condition. Dillard's denied the claim under the Plan and informed Vasquez of her right to appeal, which she did. The appeal went before Dillard's Appeals Committee and an independent medical examination of her file was performed. That opinion also found Vasquez's claim should be denied as her injury was both a preexisting condition and a degenerative injury. Vasquez then appealed to the Workers' Compensation Commission. Rather than addressing the facts of the case, the Commission went straight to the heart of the Opt Out Act and ruled that it was facially unconstitutional. Dillard's appealed to this Court but the majority, like the Commission, skirted the facts in its mission to find the entire Opt Out Act an unconstitutional, special law. ¶3 I would not strike the Opt Out Act but, instead, I would require the Commission to determine whether, under the facts presented, the employee was denied benefits under the Dillard's plan that she otherwise would have received under the Administrative Workers' Compensation Act. If the employee would not have been entitled to benefits under either system, as urged by Dillard's, then this becomes a much more straightforward review of a denial of benefits. I have no trouble concluding that if specific sections of Dillard's plan do not meet the requirements of the Opt Out Act then those provisions should be brought in line with the Act, as should any other plan that fails to meet such standards. However, the majority fails to narrowly tailor its ruling and instead, with a broad sweep of its brush, erases the entire Opt Out Act, leaving employees and their employers without a clear path to enforce their respective remedies or defenses. ¶4 The validity of Vasquez's claim was never entertained. Because the Administrative Workers' Compensation Act also prohibits recovery for preexisting and/or degenerative conditions, 85A O.S.2013 §§ 2(9)(b)(1), 2(9)(b)(6), 36, it appears that both Acts would have denied her claim. Instead of ruling on these narrow, factual grounds, the majority unnecessarily ventures into the constitutionality of the Opt Out Act and improperly strikes it down based upon hypothetical events. ¶5 As I have said in previous cases, legislation requires some compromise and with a system as complex and comprehensive as workers' compensation, this Court should adopt a more deferential, case-by-case approach. All new legislation needs fine-tuning, either by legislative amendment or court direction. Here, the Court has provided no guidance for employees, or their employers, as to where a cause of action should be pursued if the Opt Out Act ceases to exist. Further, other employers with plans under the Opt Out Act that have met or exceeded the Acts' terms will never get the opportunity to have the validity of their plans tested. I would remand the matter for determination on the factual issues before resorting to wiping out the Opt Out Act.

ab5e6324-14e9-49d8-9263-3398bcbcd055

C&H Power Line Construction Co. v. Enterprise Products Operating, LLC

oklahoma

Oklahoma Supreme Court

C&H POWER LINE CONSTRUCTION CO. v. ENTERPRISE PRODUCTS OPERATING, LLC2016 OK 102Case Number: 112177Decided: 10/11/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. C&H POWER LINE CONSTRUCTION CO., Plaintiff/Appellee, v. ENTERPRISE PRODUCTS OPERATING, LLC, and ENTERPRISE TEXAS PIPELINE, LLC, Defendants/Appellants. APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY, HONORABLE RUSSELL C. VACLAW, ASSOCIATE DISTRICT JUDGE. ¶0 While operating a large auger, James Neece, an employee of the plaintiff/appellee, ruptured an underground high pressure natural gas line belonging to the defendants/appellants. The blast killed Neece and damaged and destroyed equipment belonging to the plaintiff/appellee, which claimed that the accident was caused by the negligence, negligence per se, and gross negligence of the defendants/appellants for failure to mark the pipeline after they had been notified of the intention to dig in the area of their pipeline. The plaintiff/appellee claimed loss of its business as a result of the accident. The jury returned a verdict for the plaintiff/appellee for $26 million and punitive damages of $1 million. The court entered judgment, including pre-judgment interest of $3,476,160, for a total of $30,476,160. Upon appeal, this Court retained the matter. AFFIRMED. M. David Riggs, Donald M. Bingham, Stephanie L. Theban, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, PC.,Tulsa, Oklahoma, Robert A. Nance, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, PC., Oklahoma City, Oklahoma, for the plaintiff/appellee. Terry J. Barker, Joseph C. Woltz, Robert N. Lawrence, Kelly J. Tompkins, PEZOLD BARKER & WOLTZ, Tulsa, Oklahoma, Jody R. Nathan, Lawrence W. Zeringue, STAUFFER & NATHAN, P.C., Tulsa, Oklahoma, Kevin R. Carlson, GARRISON BROWN & CARLSON, Bartlesville, Oklahoma, for the defendants/appellants. Winchester, J. ¶1 The appellants/defendants, Enterprise Products Operating, LLC, and Enterprise Texas Pipeline, LLC, [hereinafter "Enterprise"] have raised issues regarding jury instructions, denial by the trial court of their motion for directed verdict, exclusion of evidence offered by the appellants, inclusion of inadmissible evidence, acceptance of a less than unanimous verdict, and awarding improper interest on the judgment. We hold that the trial court did not make any error requiring reversal or remand. The judgment of the trial court is affirmed. I. FACTS ¶2 The plaintiff/appellee, C&H Power Line Construction Company, built and repaired power lines. On June 7, 2010, while at a site in Texas, James Neese, a veteran employee of C&H was operating a 108,000 pound Hughes LLDH pressure drill equipped with a four foot diameter carbide tooth rock-drilling-style bit. He was drilling a hole for a power line tower. His auger struck an unmarked gas pipeline thirty-six inches in diameter with an operating pressure of over 1,000 pounds per square inch. He was killed in the resulting explosion and another C&H employee, a mechanic, was severely burned. Before drilling, C&H called the Texas One-Call system to have companies in their work area mark their lines. Although Enterprise was notified within the proper time, it did not mark its line. The other pipeline companies marked their lines. ¶3 C&H alleged that it was in the process of selling the company immediately before the accident and had a letter of intent for $33 million up front, with an earn-out provision for $10 million more. C&H claimed that the explosion caused the demise of the company, finally resulting in a sale of the company at substantially less than its value at the time of the accident. ¶4 The case was tried in the district court of Washington County, Oklahoma, but the parties agree that the substantive law would be that of Texas. The jury awarded $26 million in actual damages and $1 million in punitive damages. The trial court entered judgment, including $3,476,160 in pre-judgment interest for a total award of $30,476,160. I. JURY INSTRUCTIONS ¶5 Enterprise asserts that the trial court permitted the jury to award damages prohibited by law, that is, damages for death and injury to employees; damages for emotional distress by a corporation; and damages for changes in C&H's workers' compensation and its industry ratings. Enterprise argues that the trial court refused its proposed instructions limiting damages to those lawfully recoverable. Enterprise concludes that the jury verdict must be reversed. ¶6 Enterprise challenges the trial court's Instruction No. 19 as not properly instructing the jury on lawfully recoverable damages. That instruction provided: "If you decide for the Plaintiff on the question of liability you must then determine the amount of money that will reasonably and fairly compensate Plaintiff for the loss or destruction of the Plaintiff's business. "For business lost or destroyed, which loss or damage was proximately caused by the occurrence in question, that amount is the difference between the market value of the business immediately before and immediately after the occurrence in question. "'Market value' means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling." ¶7 Texas law provides that "the proper measure of damages for destruction of a business is measured by the difference between the value of the business before and after the injury or destruction." Sawyer v. Fitts, 630 S.W.2d 872, 874-875 (Tex. App. 1982). Enterprise cites this very case. In the Sawyer case, the business was completely destroyed and Enterprise argues that damages based on market value of a business are available only if a business is totally destroyed and not when it continued as a business. It proposed Revised Instruction 21 to instruct the jury that C&H had to prove that its business was totally destroyed by the accident before C&H could seek damages based on the total value of its business. However, the wording of the rule cited in Sawyer contemplates the possibility that there may be some value after the destruction of a business, which amount is stated as "the difference between the value of the business before and after the injury or destruction." Sawyer cites Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956) where a building and its contents including fixtures and merchandise were damaged by fire. The Supreme Court of Texas held that the measure of damages in such a case is the "reasonable cash market values of the property at the time it was destroyed by the fire, or if not totally destroyed, the difference between the reasonable cash market values of the property immediately before and immediately after it was damaged." Sawyer, 630 S.W.2d at 874. This is correctly reflected in the trial court's Instruction No. 19, "[T[he amount of money that will reasonably and fairly compensate Plaintiff for the loss or destruction of the Plaintiff's business . . . is the difference between the market value of the business immediately before and immediately after the occurrence in question." ¶8 In another approach to this same issue, Enterprise claims the court failed to give the proper instruction on negligence. In its proposed Instruction No. 15 Enterprise inserts its theory that C&H has the burden of proving that its business was totally destroyed. In fact, it inserted the theory of total destruction twice into the four sentences. Enterprise's theory is incorrect, as discussed above, and its proposed Instruction No. 15 would be an erroneous instruction had it been given. The instructions by the court on this matter properly reflects the law. ¶9 Enterprise also argues that the court's Instruction No. 19 failed to properly limit the damages. The company proposed Revised Instruction 20 on causation of damages so the jury could be instructed to limit damages to those caused by Enterprise and by the accident. Its proposed Revised Instruction 25 would have advised the jury that it could not award damages for death or injury to employees, emotional distress to C&H, or changes in workers' compensation ratings. ¶10 None of these proposed instructions accurately reflects the law that the court properly instructed the jury to follow, which is to ascertain the difference between the market value of the business immediately before and immediately after the occurrence. The law considers what a buyer would be willing to pay for the company before the accident and after the accident. Experts for both parties testified to the items the experts asserted should be considered when valuing the company before and after the accident. The theory of C&H was that the company had been and would have continued to increase in value. The theory of Enterprise was that the value of C&H was declining in value. Those involve fact questions properly determined by the jury. ¶11 If the value of the company is set immediately before the accident, and then individual items of damage are deducted, the result no longer represents what a willing buyer would pay to purchase the business. For example, Enterprise argues that employers may not bring a wrongful death action for the death of an employee, and it objects because the effect of the death of C&H's employee was not subtracted from the amount that C&H's expert set for the company. A wrongful death action is not a part of these proceedings. An employee died, but C&H has not made a claim based on his death. C&H's damages are based on what a purchaser of the company would have paid immediately before and after the injury. ¶12 The value of the company is a package consisting of, among other things, tangible items such as machinery, and intangibles such as goodwill. All of those items are considered in the decision of a buyer to purchase a company. Loss of a key highly skilled employee, whether through death or disability, affects the value, but the damage is not the same as that for wrongful death. Even if a company cannot recover separate damages for emotional distress, nor for changes in workers' compensation ratings, the emotional outlook and ratings barriers to acquiring new jobs still have an impact on the value of a company to a prospective buyer, who is entitled to consider these items in making an offer for the purchase of the business. ¶13 C&H's expert1 testified that the methods he used to set a value on C&H were based on "Generally Accepted Accounting Principles" (GAAP). That expression is a term of art, which carries with it specific legal consequences. Godchaux v. Conveying Techniques, Inc., 846 F.2d 306, 315 (5th Cir. 1988). The Godchaux case explained that standard accounting practice recognizes a hierarchy of general principles and published standards of the American Institute of Certified Public Accountants. The prevalent customs and usages of the accounting profession are followed. Godchaux, 846 F.2d at 315. GAAP is not a "canonical set of rules that will insure identical accounting treatment of identical transactions," and so GAAP tolerates "a range of 'reasonable' treatments." Godchaux, 846 F.2d at 315, citing Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 544, 99 S. Ct. 773, 787, 58 L. Ed. 2d 785 (1979). ¶14 C&H's expert testified about methods used to value a company and to determine the diminution of value. He testified that prior to the accident; C&H had enterprise value of $39,600,000, asset value of $39,000,000, market approach value of $36,193,000 and income approach value of $32,131,000, and that if a buyer wants an opinion on the value of a business, a workable range is plus or minus ten percent. The expert explained each of these methods of placing a value on a company to the jury, in detail, with demonstrative charts. He further testified that before the explosion C&H was a business very likely to succeed. C&H presented evidence that it sold its remaining assets for $12,000,000 in October of 2011. This evidence presented by C&H gave the jurors four methods of placing a value on a company immediately before the accident according to Generally Accepted Accounting Principles. In addition, C&H presented evidence of the sale amount being discussed by a party that expressed interest in purchasing the company just prior to the accident. ¶15 Enterprise chose to challenge these values placed on C&H by asserting what it believed should be excluded from these GAAP calculations. On cross-examination C&H's expert explained that measuring individual elements results in an overlap, which makes the resulting value less reliable and more speculative. Enterprise's expert testified about C&H's financial statements and documents, debts, profits and losses. Enterprise includes a substantial amount of facts in its briefs, facts that were presented to the jury and which Enterprise believes should be persuasive in supporting its viewpoint that the verdict against it was erroneous. ¶16 In Florafax International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287, this Court set forth the general appellate standard of review concerning actions at law tried to a jury. "In an action at law, a jury verdict is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this Court will not disturb the jury's verdict or the trial court's judgment based thereon. Where such competent evidence exists, and no prejudicial errors are shown in the trial court's instructions to the jury or rulings on legal questions presented during trial, the verdict will not be disturbed on appeal. In an appeal from a case tried and decided by a jury an appellate court's duty is not to weigh the evidence and determine which side produced evidence of greater weight, i.e. it is not an appellate court's function to decide where the preponderance of the evidence lies -- that job in our system of justice has been reposed in the jury. In a jury-tried case, it is the jury that acts as the exclusive arbiter of the credibility of the witnesses. Finally, the sufficiency of the evidence to sustain a judgment in an action of legal cognizance is determined by an appellate court in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it." [Citations omitted.] ¶17 The trial court must give jury instructions that accurately reflect the law and apply to the issues. Covel v. Rodriguez, 2012 OK 5, ¶ 26, 272 P.3d 705, 715-716. Jury Instruction No. 19 accurately reflects the law as stated in Sawyer, and directly addresses one of the issues presented and tried in this case, and that is whether C&H's business had been destroyed by the culpable actions of Enterprise. The instruction is not erroneous. Additionally, the testimony of C&H's expert reasonably supported the verdict of the jury. The verdict was within the range of his evaluation of the value of the company immediately before the accident, and within the amount paid for the company when it was subsequently sold. The jury heard that evidence, heard the proper instruction, and reached its verdict based on that evidence. ¶18 The final assertion of error regarding an instruction by the trial court involves Enterprise's "Revised Jury Instruction No. 19." The title given this proposed instruction is "Contributory/Comparative Negligence Per Se." It would instruct that as a part of Enterprise's defense it claims that the plaintiff or the non-parties were negligent by violating either statutes or regulations, which if proven, was the proximate cause of the injury. That is a negligence per se defense. A portion of that five-page instruction quotes sections of the Texas Administrative Code, tit. 16, including § 18.4(e). It provides circumstances under which an excavator (C&H) must give a second notice to the notification center, when the excavator knows of the existence of an underground pipeline, lacks a positive response for the excavation area, or that response is unclear or obviously erroneous. ¶19 C&H asserts that Enterprise mischaracterized the facts. Enterprise attempts to use C&H's knowledge of other pipelines in the area. C&H knew where those pipelines were located. There was no doubt involved about pipelines from other companies. The question was whether Enterprise had a pipeline in the area. Enterprise's agent had reported to C&H's agent that it was "all clear." Had C&H called a second time, the same agent would have taken the call. All this evidence was before the jury. Witnesses were questioned about this and the attorneys argued their respective sides during closing. The trial court properly rejected Enterprise's proposed instruction. II. EXCLUDED EVIDENCE ¶20 Enterprise complained that the trial court excluded evidence of C&H's mismanagement and dissipation of corporate funds on gambling, boats, and other frivolous items. However, the court allowed Enterprise to offer evidence of how much was distributed to the owner or on behalf of the owner. The court properly did not admit evidence of how those funds were used. C&H correctly answers that such evidence is completely irrelevant to any issue regarding the financial condition of the company. What is the purpose of presenting the jury with evidence of frivolous spending or gambling? The only purpose we can see is to prejudice the jury by placing the owner in a bad light. The owner took certain amounts out of the company, whether he took them for frivolous spending or to give it all to charity does not change the amount taken out, nor the impact it has on the company. This proposition of error is completely without merit. ¶21 Likewise, Enterprise complains that the trial court would not allow evidence of an insurance payment for damaged or destroyed equipment. Such evidence violates the collateral source rule. That rule generally prevents a tortfeasor from benefitting from payments made to a plaintiff by parties other than the tortfeasor. Triumph Trucking, Inc. v. Southern Corporate Insurance Managers, 226 S.W.3d 466, 471 (Tex. App. 2006). In Oklahoma the same rule applies. Estrada V. Port City Properties, Inc. 2011 OK 30, ¶ 27, 258 P.3d 495, 505. Enterprise wanted to rebut the testimony of a witness based on the testimony of an earlier witness that C&H did not have the money to replace some of its equipment. After having heard the previous testimony, the trial judge prohibited Enterprise from attempting to rebut the testimony of the second witness based on the testimony of the first witness. This Court finds no abuse of discretion by the trial court on its decision to prohibit questioning the second witness concerning insurance payments and how that money was spent. III. OBJECTION REGARDING NET WORTH OF ENTERPRISE ¶22 While playing a clip of a deposition, the witness responded to a question by C&H's counsel and testified that Enterprise's net worth was in the "billions." From the bench discussion it appears that the video clip was not turned off at the point C&H anticipated. C&H's counsel asked to make a record that the portion of the video clip containing the net worth response was not played. Enterprise's attorney stated that the video was not turned off until after the question had been asked and answered. The judge replied that it was played, but he did not know if the jury was able to hear it because "everyone was standing up talking and objecting." The judge continued, "I don't know if it's something we want to call attention to or tell them to disregard it at this point. If you want that instruction, I would be happy to give it." Enterprise's attorney decided not to ask for the instruction. Both cases cited by Enterprise are distinguishable. In Chowins v. Gypsy Oil Co., 1939 OK 347, ¶ 4, 95 P.2d 586, 588, the plaintiff wanted to offer evidence concerning two companies that were not even parties to the action. The trial court excluded the evidence, which the Chowins opinion agreed was correct. In Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 875, a motorist brought an action against a driver of a tractor trailer rig and the company that owned the rig. The motorist sought damages for injuries suffered in a traffic accident. The trial court entered judgment for $3,000,000.00 in favor of the motorist and passenger. The plaintiffs offered testimony taken from the deposition of Reliance's corporate representative that the company had annual sales of approximately $1.9 billion. The counsel for the defendants objected and the trial court overruled the objection. The Texas court of appeals reduced one damage item by $6,000.00, and affirmed the rest, finding the gross sales evidence was harmless. The Supreme Court of Texas held that the error in admitting the evidence was not harmless and reversed and remanded the case for a new trial. ¶23 There is reason to believe that playing the testimony of the witness concerning Enterprise's net worth was inadvertent. The plaintiff's attorney did not attempt to defend it, and the trial court offered to admonish the jury, but the defendants' attorney decided against it. Enterprise asserts that testimony caused the damages awarded to C&H to be grossly inflated. There is no support for Enterprise's position on this issue. The jury's verdict fell well within the evidence offered concerning C&H's value before and after the accident, and there is no comparison to the evidence submitted and judgment rendered in the Reliance Steel case. IV. NUMBER OF JURORS REQUIRED TO DETERMINE QUESTIONS OF GROSS NEGLIGENCE AND EXEMPLARY DAMAGES. ¶24 Enterprise asserts that the trial court erred in not requiring a unanimous jury to decide questions related to gross negligence and exemplary damages, and argues that since Texas differentiates between civil verdicts and verdicts awarding exemplary damages, the requirement of a unanimous verdict should be treated as substantive law. Both Texas and Oklahoma allow verdicts by a jury that are less than unanimous. However, Texas requires a unanimous jury verdict to award exemplary damages.2 Texas case law holds that "the number of jurors required to reach a verdict is clearly a procedural matter in Texas." Owens-Corning Fiberglass Co. v. Martin, 942 S.W.2d 712, 721 (Tex. 1997). Applying Texas own case law, we hold that the number of jurors required to reach a verdict is a procedural matter and we will apply Oklahoma procedural law.3 In addition, the Oklahoma rule is, "In a conflict-of-law analysis matters of procedure are governed by the law of the forum." Veiser v. Armstrong, 1984 OK 61, ¶ 7, n. 6, 688 P.2d 796, 799. We find in this regard that the trial court did not err in its decision. V. PREJUDGMENT INTEREST ¶25 Enterprise claims that the trial court erred by awarding prejudgment interest because C&H made no mention of a claim for prejudgment interest, and Texas law treats prejudgment interest as a form of equitable damages, which the plaintiff is required to plead as an element of damages. C&H answers that this is also a matter of procedural, not substantive law, and therefore Oklahoma law controls. In the appellants' Brief-in-Chief, Enterprise uses the expression, "plaintiff is required to plead." A pleading is part of procedural law. "Substantive law consists of all laws that define, describe, regulate, and create legal rights and obligations. Procedural law consists of all laws that outline the methods of enforcing the rights established by the substantive law."4 The substantive law creates the right to prejudgment interest in specific circumstances. The procedural law instructs how to plead for the right. The method used by a litigant to request prejudgment interest is a procedural matter, and so, as explained above, Oklahoma law controls. As to whether C&H is entitled to prejudgment interest, the substantive law of Texas controls. Flanders v. Crane Co., 1984 OK 88, ¶ 9, 693 P.2d 602 (Nebraska substantive law controlled, but Oklahoma procedural law applied.) The trial court did not err in its decision. AFFIRMED. CONCUR: REIF, C. J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COLBERT, and GURICH, JJ. NOT PARTICIPATING: COMBS, V.C.J. FOOTNOTES 1 The expert was David Richard Payne, a Certified Public Accountant who formed D. R. Payne & Associates in 1992. He holds two certifications: Certified Insolvency and Restructuring Advisor, CIRA, and Certified Turnaround Professional, CTP. He holds three appraisal certifications: Accredited Senior Appraiser, Accredited in Business Valuation, and a certification in distress business valuation. He is regularly appointed by both state courts in Oklahoma and federal courts to investigate failing businesses and companies that are undergoing some form of operational or financial dispute. Additionally, a regular part of his duties in the state and federal courts is to serve as a receiver of companies to aid in working their way out of insolvency problems. He testified that in his career of business valuations similar to this case, he had in excess of 30,000 hours appraising companies across numerous industries from construction to energy to high tech and service companies. 2 Texas Rules of Civil Procedure, Rule 292. Verdict by Portion of Original Jury: "a) Except as provided in subsection (b), a verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten or more members of an original jury of twelve or of the same five or more members of an original jury of six. However, where as many as three jurors die or be disabled from sitting and there are only nine of the jurors remaining of an original jury of twelve, those remaining may render and return a verdict. If less than the original twelve or six jurors render a verdict, the verdict must be signed by each juror concurring therein. "(b) A verdict may be rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages." 3 The Oklahoma Constitution, Article 2, § 19, provides in pertinent part that "In all criminal cases where imprisonment for more than six (6) months is authorized the entire number of jurors must concur to render a verdict. In all other cases three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict. When a verdict is rendered by less than the whole number of jurors, the verdict shall be signed by each juror concurring therein." 4 Kenneth W. Clarkson, Roger LeRoy Miller, Frank B. Cross, Business Law Text and Cases, 12 (13th Ed. 2015).

adb55fff-7f40-4f38-aea7-36d56fb5e0bf

Edwards v. Andrews

oklahoma

Oklahoma Supreme Court

EDWARDS v. ANDREWS2016 OK 107Case Number: 115226Decided: 10/11/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PatrIcia Bowers Edwards, individually and as guardian of Robert Drew Bowers, Petitioner, v. Don Andrews, District Judge, Respondent. MEMORANDUM OPINION COLBERT, J. ¶1 Guardian of her disabled adult son petitions this Court to assume original jurisdiction and issue a writ prohibiting the trial court from exercising jurisdiction over the claims of two discharged domestic workers. Original jurisdiction is assumed. Let the Writ of Prohibition issue, directing Respondent Judge, or any other judge to whom case No. CJ-2014-2718 is assigned, to (1) vacate the Journal Entry of July 26, 2016, and (2) dismiss the case. ¶2 Drew Bowers (Ward) sustained a traumatic brain injury in 1981. As a result of the injury, he requires 24-hour care. His mother, Patricia Bowers Edwards (Guardian) was appointed guardian of her son's person and property in 2004. Guardian hires approximately ten caretakers for Ward in his private residence. ¶3 Two of the ten caretakers contracted to provide services for Ward were domestic workers, Deborah Sizemore and Brad Garrett. Sizemore was hired May, 2010 and Garrett was hired January, 2012. They were hired and classified as domestic caretakers. The caretakers' duties include driving Ward to various appointments and outings, helping him with hygiene and dressing, serving his meals, light cleaning, helping him to bed, and accompanying him on outings and trips. ¶4 In April, 2013, Sizemore filed a "charge of discrimination" pursuant to the Oklahoma Anti-Discrimination Act, Okla Stat. tit.25, § 1101 - 2005 (2011 & Supp. 2014), with the Attorney General's Office of Civil Rights Enforcement, claiming that her hours were dramatically reduced when she told the guardian she suffered a disability: narcolepsy, a "condition characterized by sudden and uncontrollable attacks of deep sleep." American Heritage Dictionary, 830 (2nd ed.). Sizemore also claimed that she was sexually harassed at work by a male co-worker. She identified co-worker Garrett as a supporting witness in her complaint. The Guardian terminated the employment of both Sizemore and Garrett when she received the the complaint from the Attorney General. The Guardian admits she discharged Sizemore and Garrett from employment because the complaint was "the straw that broke the camel's back." The Attorney General filed a Petition to Enforce the Oklahoma Discrimination Act in the District Court of Oklahoma County in May, 2014, on behalf of Sizemore and Garrett who then intervened in the Attorney General's lawsuit.1 ¶5 The suit is based solely on the "Other Discriminatory Practices" of section 1601 set forth in Article VI of the Act. Section 1601(1) makes it a discriminatory practice to "retaliate or discriminate against a person because he has opposed a discriminatory practice, or because he has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act." Article VI provides no remedy for retaliation. Instead, the Attorney General sought back pay, liquidated damages, reinstatement of front pay in lieu of reinstatement, attorney fees and costs, pursuant to section 1350, Article III, Discrimination in Employment. Article III defines "employer" and "employee" and provides the remedies for employment discrimination. ¶6 Guardian moved for summary judgment arguing that Ward was the actual employer and that under section 1301 of the Act a natural person does not meet the definition of "employer." 2 Guardian further argued that under section 1302(B) of the Act the prohibition of discriminatory practices does not apply to . . . employment in the domestic service of the employer." The trial court denied Guardian's motion for summary judgment and Guardian brought this original action asserting immunity under the Act. ¶7 As a preliminary matter, this Court will generally "not review a trial court order which overrules a motion for summary judgment." Rowan v. Rowan, 1974 OK 66, 523 P.2d 1068. However, an exception to that rule is found in McLin v. Trimble, 1990 OK 74, ¶ 17, 795 P.2d 1035, which held that a "state trial court decision concerning qualified immunity may be reviewed by an original action in this court." Therefore, Guardian is entitled to have this Court determine in advance of trial whether she is immune from workers' claims. ¶8 This action falls within the McLin exception because Guardian is immune from suit for charges of discriminatory practices in employment by domestic workers under section 1302(B). Further, pursuant to section 1301(1)(a), a "person" or "individual" is excluded from the definition of "employer" and is not subject to suit by an "employee." Therefore, Guardian is not subject to any action for discriminatory practices in employment. ¶9 The remaining question concerns the "other" discriminatory practice of retaliation prohibited by section 1601(1). That provision neither defines retaliation, nor does it provide any remedy to compensate an employee who suffers retaliation at the hands of an employer. The only remedies provided in an individual action for employment discrimination are provided by Article III at section 1350. Therefore, the Oklahoma Legislature has prohibited retaliation but has not supplied any monetary remedy for an employee. It appears that the prohibitions in Article VI was intended to apply to discriminatory practices other than employment discrimination such as public accommodations (Article IV), housing (Article IVA), and human rights (Article V). Thus, the trial court erred by not dismissing the action. CONCUR : REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COLBERT, JJ. RECUSED: GURICH, J. FOOTNOTES 1 The Attorney General dismissed its claims of employment discrimination practices with prejudice, pursuant to a settlement agreement with mother. 2 Section 1301(1)(a) defines "employer" as "a legal entity, institution or organization that pays one or more individuals a salary or wages for work performance" and that a "natural person" is excluded from the definition of "employer."

7afcfee4-eb18-43d0-b1b6-ed3971844729

Oklahoma Assoc. of Broadcasters, Inc. v. City of Norman

oklahoma

Oklahoma Supreme Court

OKLAHOMA ASSOC. OF BROADCASTERS, INC. v. CITY OF NORMAN2016 OK 119Case Number: 113973Decided: 12/06/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA ASSOCIATION OF BROADCASTERS, INC., Plaintiff/Appellant, v. CITY OF NORMAN, NORMAN POLICE DEPARTMENT, DISTRICT ATTORNEY OFFICE FOR THE TWENTY FIRST JUDICIAL DISTRICT, Defendants/Appellees. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION II ¶0 On October 30, 2014, Plaintiff filed a request under the Open Records Act, 51 O.S.2011, § 24A.8(A), for a video of an incident which resulted in a criminal defendant voluntarily appearing in district court for an arraignment hearing, being ordered to the custody of his attorney and to the Sheriff's department. Defendants denied the request. Plaintiff filed petition for declaratory judgment, injunctive relief, and mandamus. Defendants filed motions to dismiss. District Court, the Honorable Thad Balkman, presiding, granted the motion. Plaintiff appealed. The Court of Civil Appeals affirmed in part, reversed in part, and remanded the proceedings. Plaintiff petitioned for certiorari, which this Court granted and ordered additional briefs. COURT OF CIVIL APPEALS' OPINION VACATED IN PART; JUDGMENT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. David McCullough and S. Douglas Dodd, Doerner, Saunders, Daniel & Anderson, LLP, Tulsa and Norman, Oklahoma, for Appellant. Jeff H. Bryant, Rickey J. Knighton II, Jeanne M. Snider, and Kristina L. Bell, Office of the City Attorney, Norman, Oklahoma, for Appellees City of Norman and Norman Police Department. Greg Mashburn, Carol Price Dillingham, James B. Robertson, and Heather Darby, Office of the Cleveland County District Attorney, Norman, Oklahoma, for Appellee District Attorney Office for Twenty First Judicial District of Oklahoma. Taylor, J., ¶1 Section 24A.8(A) of the Open Records Act (the Act), 51 O.S.2011, § 24A.8(A)(2), required law enforcement agencies "to make available for public inspection . . . [f]acts concerning [an] arrest, including the cause of arrest and the name of the arresting officer . . . ." The questions presented to this Court are whether there was an arrest in the underlying criminal proceeding for purposes of the Act and whether the Act entitles Plaintiff to a copy of a surveillance video depicting the cause of the arrest. We answer in the affirmative. I. STANDARD OF REVIEW ¶2 Although a judgment granting a motion to dismiss is subject to de novo review, Estate of Hicks v. Urban East, Inc., 2004 OK 36, ¶ 5, 92 P.3d 88, 90, a motion to dismiss will be treated as one for summary judgment when matters outside the pleadings are presented and not excluded. 12 O.S.2011, § 2012(B). Here, Defendants presented a record in a criminal case and provided a video recording at the hearing on the motion to dismiss. The district court, rather than exclude the video, made it part of the record and ordered it to be preserved. The district court implicitly treated the motion to dismiss as one for summary judgment. ¶3 We review a summary judgment under a de novo standard as it presents a question of law. Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. If it appears that there is no substantial issue of material fact and that one party, including the non-moving party, is entitled to judgment as a matter of law, a court shall render judgment for that party. Rules for District Courts of Oklahoma, 12 O.S.2011, ch. 2, app., r. 13(e). II. FACTS ¶4 On July 25, 2014, a Norman, Oklahoma restaurant's surveillance video captured an incident depicting Joe Mixon striking a female. The Norman Police Department (Department) was called to the location, investigated, and obtained and reviewed the surveillance video. On Friday, August 15, 2014, a Department detective filed an affidavit of probable cause seeking an arrest warrant for Mixon. The detective stated probable cause existed based on interviews completed by other officers, injuries sustained by the victim, and the surveillance video of the incident which he described in detail. The same day, the Cleveland County District Attorney (District Attorney) filed a criminal information, referencing the same incident number as the probable cause affidavit and alleging that Mixon committed the misdemeanor crime of Acts Resulting in Gross Injury, 21 O.S.2011, § 22, when he struck the female. On August 18, 2014, Mixon voluntarily appeared in district court to answer the charge and was arraigned. At the same time, the district court ordered Mixon to be processed by the Cleveland County Sheriff's Department and to remain in custody pending his posting a bond. ¶5 Also on August 18th, KWTV News 9, a member of the Oklahoma Association of Broadcasters (Association), requested a copy of the surveillance video from Department and District Attorney, referencing the Act, 51 O.S.2011, §§ 24 A. 1-29. On September 3, 2014, the City Attorney for the City of Norman (City) emailed KWTV News 9 that, barring changes, such as the judge ordering the video sealed, he did "not know of a reason why [Department] would not be willing to make copies of the Mixon video available for public inspection and copying after November 1." Without furnishing copies of the video, on September 4, 2014, Department allowed KWTV News 9 and other media to view the video. Association was not present at this viewing. ¶6 On October 30, 2014, Mixon entered an Alford Plea1 to the criminal charge. The same day, Association made a request under the Act for a copy of the surveillance video from Defendants and KWTV News 9 renewed its request. District Attorney responded, informing Association that it no longer had the video as it had given the video to the victim. City told KWTV News 9 that Department had delivered a copy of the video to the City Attorney, who placed it in a litigation file. III. PROCEDURAL HISTORY ¶7 On November 3, 2014, Association filed a petition for declaratory judgment and writ of mandamus, in the Cleveland County District Court, seeking a copy of the video. Department and City filed a joint motion to dismiss which was later joined by District Attorney.2 Defendants urged, among other things not preserved for review in this appeal, see Hough, 1993 OK 112, ¶ 1, 867 P.2d at 440, that Section 24A.8(A) only requires Defendants to allow inspection, not to provide a copy of the video. Association filed a response. Defendants filed a reply additionally urging that Section 24A.8(A)(2) only provides access if a criminal defendant was arrested. The Defendants' position was that Mixon was not arrested. ¶8 On February 20, 2015, the district court held a hearing on Defendants' motion to dismiss. The district court ordered in advance that no recording of the hearing would be allowed and that the surveillance video be shown in open court at the hearing. City and Department told the district court that if it reviewed the docket for Mixon's misdemeanor case, the court would see that Mixon "voluntarily appeared to answer for the charge," no arrest warrant was issued, and there was not an arrest. The district court granted Defendants' motion to dismiss stating (1) the video does not depict an arrest or the cause of an arrest; (2) Department is not required to allow copying under the 2011 Act; (3) the Department properly returned the video to its owner; and (4) that Association does not possess a clear legal right to relief for mandamus to be granted. On April 30, 2015, the district court's journal entry ordered "that the subject surveillance video, which is now part of the court record, be preserved." ¶9 Association appealed, raising several issues. However, none of the parties appealed the district court's finding that the video was part of the record in this case or its order that the video "be preserved pending further action by the Plaintiff." The Court of Civil Appeals reversed in part and remanded for further proceedings, finding that there was no arrest triggering a duty to provide access to the surveillance video under Title 51, Section 24A.8(A)(2). The Court of Civil Appeals remanded the proceedings for a determination of whether the public's interest in access to the video outweighs Defendants' reasons for denying access under Title 51, Section 24A.8(B), which provides for a balancing of interest when disclosure is not required under Section 24A.8(A). In dicta, the Court of Civil Appeals found that the video was part of the court's records; but, because the Cleveland County Court Clerk was not a party to the litigation, "a petition for declaratory, injunctive and mandamus relief as against the court clerk" was premature. ¶10 On February 25, 2016, three days after the Court of Civil Appeals issued its opinion and while the matter was still pending in the appellate courts, the district court issued an order reversing its finding that the video was part of the court's record. Association filed a petition asking this Court to assume original jurisdiction and "issue an extraordinary writ directing the [district court] to immediately withdraw [its] February 25, 2016 Order removing a public record from the custody and control of the court clerk in" this matter. Application to Assume Original Jurisdiction, Petition for Extraordinary Writ, and Brief in Support, Okla. Ass'n of Broads., Inc. v. Balkman, No. 114,827 (Okla. March 22, 2016). This Court assumed jurisdiction and prohibited the district court from enforcing the February 25, 2016 order, citing Oklahoma Supreme Court Rule 1.37, 12 O.S.2011, ch. 15, app. 1, and ordering the Association "be allowed to proceed in accordance with the Open Records Act . . . ." Okla. Ass'n of Broads., Inc. v. Balkman, No. 114,827 (Okla. May 9, 2016). ¶11 Association filed a Petition and an Amended Petition for Writ of Certiorari which are substantially identical except for extraneous, irrelevant attachments to the Petition.3 This Court ordered briefs on certiorari issues. IV. ANALYSIS ¶12 Before analyzing the issues raised in the petition for certiorari, we are compelled to address the district court's order making the video part of the court record in this case and ordering its preservation. See Okla. Const. art. VII, § 4. Even though the finding that the surveillance video was part of the court record and the order that it should be preserved were not appealed, the Court of Civil Appeals addressed the issue. Even after the Court of Civil Appeals agreed that the video was part of the record in these proceedings, Defendants did not seek review before this Court of the finding that it was part of the court record or of the order that the video be preserved. The finding that the video was part of the record in these proceedings is final and is no longer disputable. Hough, 1993 OK 112, ¶ 1, 867 P.2d at 440. Also, Defendants have admitted that at least one of them has retained a copy of the video and provided a copy at the hearing. Defendants have not asserted before this Court that the video is unavailable because it is in a litigation file. ¶13 One of a district court clerk's primary duties is to take custody of and preserve all materials that are part of a court's proceedings. See 12 O.S.2011, §§ 22, 29, 33; 12 O.S.2011, ch. 15, app. 1, rr. 1.28 and 1.33. Attorneys are officers of the court. 5 O.S.2011, ch. 1, app., art.1, § 2. When Defendants failed to seek review of the district court's finding that the video was part of the record and order to be preserved, the issue became final compelling the attorneys in this proceeding to observe their duty and submit the video to the court clerk for preservation as part of the record in this proceeding. We would not be faced with this issue if the district court had followed the better practice of having the video marked as an exhibit before finding it to be a part of the court record and for the court to retain a copy of the video to place in the court clerk's custody. ¶14 We now turn to the issues preserved for our review. Section 24A.8(A)(2) requires (1) a law enforcement agency (2) to allow inspection of a record (3) that contains facts concerning an arrest or the cause of arrest. Defendants implicitly define themselves as law enforcement agencies, and Plaintiff does not contest that they are.4 Defendants do not contest that the video falls within Section 24A.8's scope of being a record of facts.5 We laid any question of a video being a record to rest in Fabian & Assocs. v. State ex rel. Dep't of Pub. Safety, 2004 OK 67, ¶ 10, 100 P.3d 703, 705, wherein we found that the Act's definition of a record was sufficiently broad to include "any method of memorializing information." A. Arrest ¶15 The first issue presented for resolution here is the breadth of the term "arrest" as used in Section 24A.8(A)(2). This is an issue of statutory construction. In construing a statute, our goal is to determine the Oklahoma Legislature's intent. Heldermon v. Wright, 2006 OK 86, ¶ 12, 152 P.3d 855, 859. The Legislature's expressed policy for the Act is to vest the people of Oklahoma "with the inherent right to know and be fully informed about their government." 51 O.S.2011, § 24 A. 2. The Legislature's emphatic message to government agencies is, unless otherwise specifically excluded, the public must have prompt and reasonable access to records. See Fabian, 2004 OK 67, ¶¶ 11-12; 100 P.3d at 705; City of Lawton v. Moore, 1993 OK 168, ¶¶ 5-6 , 868 P.2d 690, 704-05. Because of the strong public policy allowing public access to governmental records, we must construe the Act's provisions to allow access unless an exception clearly applies, and the burden is on the public agency seeking to deny access to show a record should not be made available. Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12, 73 P.3d 871, 875. We are mindful of the Act's policy, the Legislature's intent, and the burden of proof in our determination of the breadth of the term "arrest" as used in the Act. ¶16 In ascertaining the Legislature's intent, a court looks "to each part of an act, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural and absurd consequences of any particular interpretation." Blevins v. W.A. Graham Co., 1919 OK 147, ¶ 8, 182 P. 247, 248. Words will be given their common meaning unless a contrary legislative intent plainly appears. 25 O.S.2011, § 1; Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603. ¶17 In Title 22, Section 186 of the Oklahoma Statutes, the Legislature defined "arrest" as taking a person into custody, "that he may be held to answer for a public offense." And in Section 190, the Legislature determined that an "arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer." In so defining arrest, the Legislature adopted the common meaning of the term. See Arrest, Black's Law Dictionary 100 (5th ed. 1979) ("To deprive a person of his liberty by legal authority"); Arrest, American Heritage Dictionary 129 (2nd coll. ed. 1982) ("To seize and hold under authority of the law"). Custody, or restriction of liberty, is the linchpin in determining whether an arrest occurred. United States v. Leal-Felix, 665 F.3d 1037, 1043 (9th Cir. 2011) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)). ¶18 When Mixon appeared at the arraignment, the district court ordered that he remain in the custody of his attorney and ordered him to appear at the Cleveland County Sheriff's Department and remain in its custody until he posted bail. Mixon was not free to do as he pleased or to ignore the court's order. He was in custody so that he could be held to answer for the misdemeanor crime of Acts Resulting in Gross Injury, 21 O.S.2011, § 22. Mixon was unquestionably in custody, and thus arrested for purposes of the Act, when the district court restricted his freedom. ¶19 Defendants argue (1) that an arrest must be without consent and against the will of the defendant, citing Castellano v. State, 1978 OK CR 107, ¶ 6, 585 P.2d 361, 364; and (2) that, pursuant to Title 22, Section 187, the arrest must be made by a police officer. Defendants conclude that if either of these two elements are absent, there is no arrest. We reject Defendants' arguments. ¶20 In Fabian, 2004 OK 67, 100 P.3d 703, this Court addressed the issue of whether audio tape recordings of driver's license revocation hearings were facts concerning an arrest or the cause of an arrest. The plaintiff represented defendants in both the revocation hearing and the associated criminal proceeding. Id. ¶ 3, 100 P.3d at 704. The plaintiff sought the recordings so that he could use them in the criminal proceedings. Id. This Court agreed that the recordings of the revocation hearing were "tapes contain[ing] facts concerning the arrest" and must be open to the public. Id. ¶ 14, 100 P.3d at 706. This Court made no distinction between arrests of those criminal defendants coercively taken into custody by an officer and those who voluntarily appeared before the court. ¶21 Even if we determined that an arrest must be made by a police officer, and Mixon was not arrested when placed in custody by the court, Defendants' argument would nonetheless fail. When Mixon appeared at the Cleveland County Sheriff's Department and had to remain there until he posted bail, he submitted to the custody of an officer, which Title 22, Section 190 specifically allows. ¶22 Just as criminal statutes are generally construed liberally in favor of a defendant, Graham v. Miracle, 1976 OK 162, ¶ 6, 556 P.2d 605, 606, we must construe the term "arrest," as used in the Act, liberally in favor of access to public records to effectuate the Legislature's intent. Heldermon, 2006 OK 86, ¶ 12, 152 P.3d at 859. Adding additional elements to the definition of arrest and its common meaning would thwart the Act's underlying legislative policy. It would allow law enforcement agencies to give preferential treatment to select defendants by allowing them to submit to a court rather than forcibly restraining them, and thus, suppressing videos depicting those defendants' violent and unbecoming behavior, while exposing the same or similar violent and unbecoming behavior of another, equally or even less culpable, defendant. If a law enforcement agency could notify a defendant of a pending arrest and allow that defendant to appear in court rather than have an officer execute a warrant, the agency could avoid the mandates of the Act. We will not attribute the Legislature with such a discriminatory intent. See Powers v. Dist. Ct. of Tulsa Cty., 2009 OK 91, ¶ 28, 227 P.3d 1060, 1078. ¶23 The Act requires the release of records unless an exception exists. Here, Mixon was arrested, and the video is a record of the facts leading up to the arrest. Section 24A.8(A) of the Act requires the video be made available to the public, including Association, and Defendants have failed to show an exception which would allow them to deny access. B. Copying of the Record ¶24 When a statute is unambiguous, its language will be applied without further inquiry as to its meaning. Ball v. Multiple Injury Tr. Fund, 2015 OK 64, ¶ 6, 360 P.3d 499, 502. But if a literal construction leads to a conflict with other provisions within an act, this Court will reconcile the statutes using rules of statutory construction. Id. This Court will consider the context of ambiguous language and will not limit its consideration to one word or phrase. Id. An inept word choice will not be construed in a manner to defeat the obvious purpose of a legislative enactment. Zaloudek Grain Co. v. Compsource Okla., 2012 OK 75, ¶ 7, 298 P.3d 520, 523 (quoting TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20). ¶25 The 2011 version of Section 24A.8(A) requires law enforcement agencies make enumerated records available for "inspection." Defendants urge that, because this provision does not include copying, they are only required to allow Association to inspect the video, which they have yet to do. Were we to consider Section 24A.8(A) out of context, we might agree with Defendants. But we must consider other provisions of the Act as well as the Legislature's intent. ¶26 Sections 24 A. 5 and 24 A. 6 of the Act provide that public bodies make their records available for "inspection, copying, or mechanical reproduction" unless specific exemptions apply. These provisions require public bodies, including Defendants, see 51 O.S.2011, § 24A.3(2), to provide times for the public, not only to inspect its records but, to copy the records. Id. §§ 24 A. 5, 24 A. 6. These provisions requiring public bodies to allow copying, as well as inspection, of their records are in direct conflict with Section 24A.8(A) under Defendants' theory that Section 24A.8(A) requires them to allow only inspection. ¶27 Conflicts between statutory provisions will be resolved in favor of a construction which promotes, rather than limits, the Legislature's intent and an act's purpose. See Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶ 33, 341 P.3d 56, 64; Zaloudek Grain Co., 2012 OK 75, ¶ 7, 298 P.3d at 523. Here as we previously noted, the Act's purpose is to allow the public access to public records. This purpose is furthered, not by restricting access by allowing public bodies to deny copies to the people of Oklahoma, but by requiring public bodies to allow copying. There are times when close inspection cannot be made by being allowed to view a video one time, but requires a copy which can be repeatedly viewed and subjected to scrutiny for a detailed analysis of an incident or to determine things such as a video's authenticity. To reconcile Section 24A.8(A) with Sections 24 A. 5 and 24 A. 6, we are compelled to define the public's right to inspect a record as used in Section 24A.8(A) as including their right to obtain a copy of the record. ¶28 The Legislature recognized this ambiguity between Section 24A.8(A) and Sections 24 A. 5 and 24 A. 6 when it amended Section 24A.8(A) to specifically include copying. 2014 Okla. Sess. Laws 896-97. This was not the first time the Legislature amended the Act's language to make it conform more closely with its purpose. In Oklahoma City News Broadcaster Association, Inc. v. Nigh, 1984 OK 31, ¶¶ 8, 14, 683 P.2d 72, 74, 76, this Court held that the records of the Governor's Mansion Account were not open to the public because they were not required by law to be kept. The Legislature promptly amended the Act during its next legislative session to allow inspection and copying of all records of public bodies whether or not required by law to be kept. 1985 Okla. Sess. Laws 1643-44. ¶29 Defendants urge that Section 24A.8(A) creates an exemption for law enforcement agencies from Sections 24 A. 5 and 24 A. 6. We cannot agree. Section 24 A. 5, not only requires public bodies to allow copying but, allows a public body to recover the costs of copying a record. If Section 24 A. 5 does not apply to law enforcement agencies, as Defendants advocate, they would be unable to recover costs pursuant to the Act after the 2014 amendment to Section 24A.8(A) requiring them to allow or provide copies of their records, including videos, since the amendment does not make provisions for law enforcement agencies to recover costs. ¶30 Resolving the ambiguity in favor of the Act's purpose and the Legislature's intent, we find that Title 51, Section 24A.8(A) of the 2011 Oklahoma Statutes must be read to allow copying as well as inspection of records of an arrest, including facts concerning an arrest. To do otherwise would ignore Sections 24 A. 5 and 24 A. 6 of the Act. Defendants have not provided how they would be prejudiced by allowing Association a copy of the surveillance video. Further, if this Court were to construe Section 24A.8(A) to disallow Association a copy of the video, Association could merely file another request since the amended version is now effective and clearly requires Defendants to allow Association copies. See 2015 Okla. Sess. Laws 1407-11. V. CONCLUSION ¶31 The undisputed facts show that Association is entitled to judgment as a matter of law and entitled to a writ of mandamus. Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶ 24, 87 P.3d 598, 604-605. Mixon was arrested and the surveillance video contains facts concerning the arrest. The video was ordered to be a part of the court record and preserved by the attorneys. The Defendants must allow Association a copy of the surveillance video. This Court need not address Defendants' other arguments as they are not properly before this Court. ¶31 The Court of Civil Appeals' opinion is vacated in part and remains controlling to the issues not presented in the petition for certiorari and addressed by this Court. The district court's judgment is reversed. On remand, the district court is ordered to enter judgment for Association consistent with this opinion and without delay. COURT OF CIVIL APPEALS' VACATED IN PART; JUDGMENT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. CONCUR: Combs, C.J., Gurich, V.C.J., and Watt, Winchester, Edmondson, Taylor, and Reif, JJ. CONCUR IN RESULT: Kauger, J. DISSENT: Colbert, J. FOOTNOTES 1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970). An Alford plea is one wherein a defendant accepts a criminal penalty without admitting guilt. Id. 2 District Attorney's Office included in his response to the petition a motion to dismiss based on its allegation that it no longer had a copy of the video, that the suit is moot since Department allowed viewing earlier, that Association had failed to name an indispensable party, and that the District Attorney's Office was an improper party. District Attorney's Office "specifically denie[d] that [the] charges 'were the result of the incident shown and recorded in the video.'" None of these issues are properly before this Court. Hough v. Leonard, 1993 OK 112, ¶ 1, 867 P.2d 438, 440 (Issues not raised for appellate review are not a proper basis for reversing the judgment.). 3 Association moved to redact or seal the extraneous attachments claiming they "are covered by either the Attorney Client Privilege or are Attorney Work Product materials" unrelated to this case. The motion is denied. 4 City would have the district court and this Court assume that it is a law enforcement agency for purposes of the Act. Title 51, Section 24A.3(5) defines a law enforcement agency as "any public body charged with enforcing state or local criminal laws and initiating criminal prosecutions, including, but not limited to, police departments, county sheriffs, the Department of Public Safety, the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Alcoholic Beverage Laws Enforcement Commission, and the Oklahoma State Bureau of Investigation." Because defining the City otherwise does not alter the outcome of our decision here, for purposes of this opinion only and without reaching a decision on the issue, this Court will assume that all Defendants are law enforcement agencies. 5 Title 51, Section 24A.3(1) defines "record" to mean all documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property. . . . (Emphasis added.) EDMONDSON, J., with whom GURICH, V.C.J., KAUGER, and WATT, JJ., join, concur by separate opinion. ¶1 I concur in the Court's opinion and write to note the constitutionally flawed procedure used by the District Court and to provide a suggested procedure for similar cases. I also must also note for future similar cases the responsibility of the District Court in providing access of a video to the media on appellate remand when an appellate court has adjudicated the media is entitled to a copy pursuant to the Open Records Act. ¶2 The District Court of Cleveland County had a case on its criminal docket. This criminal case was a result of a dispute between two people that was also recorded on a surveillance video. A police officer for the City of Norman viewed and obtained the surveillance video. A police officer's affidavit of probable cause for issuance of an arrest warrant refers to the video. ¶3 The Oklahoma Association of Broadcasters (OAB) filed a civil case on the docket of the District Court and sought a copy of the surveillance video. The District Attorney responded and denied that the defendant's criminal charges were the result of the incident shown and recorded in the surveillance video. ¶4 A court hearing was held in the civil case on the City of Norman's motion to dismiss. The District Attorney's Office stated it no longer had the video and it had been returned to a third party. The Norman Police Department stated it had a copy of the video in its "litigation file" and such was not subject to an open records request.1 During the hearing on the City's motion the trial judge and the attorneys viewed the video. The trial court concluded the OAB was not entitled to a copy of the video and "upon the request of Plaintiff and agreement of Defendants, that the subject surveillance video, which is now part of the Court record, be preserved pending any further action by the Plaintiff." ¶5 Regardless of the request by the Plaintiff or the agreement of the Defendants, the trial court's use of the video in the hearing had the legal effect of requiring the video to be placed in the custody of the court clerk or court reporter at the conclusion of the hearing, the clerk was subsequently required to preserve the video as a court exhibit introduced in evidence for the purpose of an appellate record, and this requirement is compelled by the Due Process provision of the Oklahoma Constitution. ¶6 The parties do not discuss whether the videotape was offered by a party or admitted in evidence in this civil proceeding. However, the judgment of the trial court and the parties' arguments conclusively show that the trial court directed the video be shown in court, viewed the video, and adjudicated a legal cause of action based upon the content of the video. The trial court's order specifically refers to what the video did and did not show. The trial court's use of the video was an admission of the video in evidence. ¶7 A court may use extra-record facts in a proper circumstance, but only when such facts are made a part of the trial court record.2 The Due Process provision of the Oklahoma Constitution3 prohibits a court from adjudicating a legal cause of action based upon evidence which is excluded from the court's evidentiary record.4 A trial court's record "constitutes the only means for communication of its proceedings to an appellate court,"5 that record must be in the custody of the district court clerk for certification to this Court,6 and the District Court was thus required by the Due Process provision of the Oklahoma Constitution to preserve the video in the custody of the clerk for the District Court. ¶8 We recently noted a "video presentation of evidence is a convenient and cost-effective trial tool."7 Videotapes "are admissible in the discretion of the trial court and under the same conditions as still photographs, namely, that they must accurately represent the events and persons portrayed."8 The OAB's legal argument on appeal and the District Court's reasons stated in its order were based upon whether certain facts were revealed or shown by the video. A distinction often made is whether an assignment of error made a party in an appeal is based upon "what is shown" by the video opposed to "what is said" in a video. In the latter instance a transcript of the video suffices for appellate review, but in the former the video is necessary to support an assignment of error.9 ¶9 Our review of a decision adjudicating a fact ordinarily requires the evidentiary material used by the trial court to be a part of the appellate record before us. In the case before us this would include an appellate examination to review "what is shown" by the video.10 Forty years ago we explained a trial court procedure when an adjudication necessarily included an incorporated exhibit, and we noted that counsel should tender the exhibit to the trial court by application to supplement the record on appeal and to secure, upon notice to the opposite party and hearing, an order allowing leave to add the incorporated material to the appellate record.11 In this case the exhibit is admitted in evidence, as a matter of law, and should be in the custody of the clerk for inclusion in the record on appeal without making such an application in the trial court. However, the trial court procedure used forty years ago is similar to this Court's rules for including a three dimensional exhibit in an appellate record. In 1996 this Court made substantial changes to its rules and determined that an appellate record should include only two dimensional exhibits, except upon an order from this Court allowing otherwise.12 Provision is still made for seeking an order from this Court granting permission to include a three dimensional exhibit when necessary to adjudicate an appeal.13 In the intervening twenty years since adoption of these rules, the use of electronic media in the courts has increased and this Court has noted a "video presentation of evidence is a convenient and cost-effective trial tool." I am confident the Court will amend its rules and provide for an electronic copy of admitted evidence, such as an admitted video exhibit, to be part of an appellate record without counsel seeking permission from the Court in each case. Until that time, appellants' counsel should seek such permission in individual cases to include such videos when necessary to show assigned error, or run the risk that admissions in briefs will not suffice. If a record deficiency occurs due to the absence of a video in the appellate record and insufficient admissions, then a potential result is a dismissed appeal on an insufficient record.14 The uncontroverted facts in the parties' briefs provide a sufficient record in this particular case to show reversible error by the District Court,15 but such will not always occur when assigned error on appeal is based upon "what is shown" in a video. ¶10 Although a District Court's reliance upon an exhibit, such as a videotape, may not necessarily convert a motion to dismiss to a motion for summary judgment,16 I have concluded that the trial court's review of the video did not rely upon the mere allegations of OAB's petition but included facts "dehors the pleadings"17 or "evidence outside the pleadings" to adjudicate a legal cause of action on the merits, e.g., summary judgment.18 The appellate procedure for review of a summary judgment is well known and provided by this Court's Rule 1.36. This rule states that in an appeal from a summary judgment the appellate record may contain "(4) any other item on file which, according to some recitation in the trial court's journal entry or in some other order, was considered in the decisional process...." Okla.Sup.Ct.R. 1.36(c)(A)(4).19 The video's use for adjudication appears on the face of the trial court's journal entry of judgment, and the video could have been filed with the District Court clerk as an exhibit and included with a transcript for the appellate record. This Court's Rule 1.33(c) requires a party to obtain permission from this Court to include a three dimensional exhibit in the appellate record. A party's timely Rule 1.33(c) motion filed in this Court should be sufficient to obtain an order authorizing a video to be part of an appellate record when the motion is based upon statements on the face of the summary judgment journal entry showing reliance on that video. Rule 1.36(c)(A)(4).20 ¶11 Once the decision of the trial court had the legal effect of admitting the exhibit, then custody of the exhibit would ordinarily be with a court reporter and eventually with the court clerk for inclusion of the exhibit in a record certified for appellate review. A trial court should not restrict the video from the control and custody of either its court reporter or court clerk, but issue an order and provide for custody and maintaining the status quo of access to the video during any appeal which is brought for the purpose to determine the public or private nature of the video. ¶12 In Southwestern Bell Telephone Co. v. Oklahoma Corporation Commission,21 we quoted language from the United States Supreme Court on the importance of issuing a stay to maintain the status quo during an appeal. No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal, despite anything a court can do. But within these limits it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that, as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal. Southwestern Bell Telephone Co., 897 P.2d at 1120, quoting Scripps-Howard Radio, Inc. v. Federal Communications Commission, 316 U.S. 4, 9-10, 62 S. Ct. 875, 86 L. Ed. 1229 (1942) (footnote omitted). ¶13 An adjudication of the duties of public officials such as a District Attorney and the Norman Police Department is ordinarily a matter in which the status quo is maintained during an appeal of that adjudication. While private rights and obligations may be waived, law concerning the structure and function of government, including public duties of public officials, are not usually subject to alteration by waiver of the public official,22 or subject to modification for the mere reason that a private party has sought to legally challenge the official's actions.23 While this Court has determined the OAB possessed a statutory right to copy the videotape, § 24 A. 8, the public officials had the right to question the interpretation of that right in a legal action that eventually determined the scope of their duties. On an appeal from a trial court's order adjudicating their public obligations the public officials possess an interest in maintaining the status quo until this Court has adjudicated the nature of their public obligation.24 ¶14 A trial court document is "filed" when placed in an official's custody and deposited by that official in the place where the official records and papers are usually kept.25 Exhibits are typically in temporary custody of a court reporter and filed with the court clerk for the purpose of an appeal, and the offering party has the obligation of taking possession of the exhibits upon the conclusion of the case after any appeals.26 It is not necessary to list all of the local court rules involving custody of exhibits by court clerks and court reporters. This appeal is a continuation of the trial court proceeding,27 and a trial court has jurisdiction to preserve its records pending an appeal, to issue a stay during an appeal,28 and to exercise judicial discretion and maintain the status quo upon adjudication of a petition for a declaratory judgment.29 ¶15 In the present case, Defendants argue that the videotape is a law enforcement "record" subject to examination but not copying, and the videotape was returned to a third party. The provision relied on by Defendants does not require confidentiality: "...law enforcement authorities may deny access...."30 When confidentiality is not specifically required by law a District Court may nevertheless withhold material from a public record and a procedure is provided by the Open Records Act, § 24 A. 29,31 which may be utilized during an appeal provided a party's due process right to an appellate record is protected. This procedure states documents produced or testimony given under a protective order may be retained in the office of counsel "until required by the court to be filed in the case."32 Once the videotape was admitted in evidence the videotape was subsequently required to be filed with the court clerk for the purpose of the OAB's appeal. The procedure in § 24 A. 29 allows keeping a record off the public record although filed with the clerk.33 Although the video is filed with the court clerk for the purpose of an appellate record, that filing does not make the video an "open court record" and subject to unrestricted copying as a court record. ¶16 The video is an "open record" and subject to copying for the OAB as a police record, but not as a court record. An exhibit, such as a videotape, admitted in evidence during a trial tribunal's proceedings is a part of the trial court's record,34 but it is not an "open record" for the purpose of the Open Records Act. A "public body" for the purpose of the Open Records Act includes a court, and a videotape filed in a court has the potential to be a record35 in the custody of court officials and potentially subject to copying,36 and the clerk charging therefor,37 unless the particular videotape is excluded from the category of "record" by the Open Records Act. While the Open Records Act places videos within the class of public records in a general sense, the Act also contains a specific provision concerning court records, 51 O.S. § 24 A. 30,38 and defines a record subject to the Open Records Act with reference to "records" as defined by 12 O.S.2011 § 32.1. Section 32.1 specifically excludes "evidence" from the definition of a "record."39 The video is an admitted exhibit and part of the evidentiary court record, but not part of the judgment roll.40 The video's status as an admitted exhibit and part of evidence makes the video not subject to the Open Records Act as a court record,41 although the video is subject to copying as a police record as explained by the Court's opinion. ¶17 The video of a physical altercation between two people was viewed by members of the press and its content made the subject of news reports. A lack of copying did not prevent public exposure of the events. Of course, the public must have access to government files in order to verify accountability and to monitor the manner in which public officers discharge their public duties.42 The OAB's "open records request" for a copy of the surveillance video was made "immediately after" the entry of the defendant's Alford Plea.43 Our Court of Criminal Appeals has noted that an Alford Plea "provides for the entry of a plea of guilty while maintaining innocence."44 The OAB's articulated interest involves obtaining a record for copying because that record "concerned the facts of the arrest" and "including the cause of the arrest." While I agree with the Court's opinion and the OAB was entitled to make a copy of the videotape, maintaining the status quo during an appeal outweighs45 an interest in copying the videotape while the civil appeal is pending when the original open records request was made after the court had accepted a guilty or Alford plea involving a private individual and actions taken by that individual in a private capacity.46 ¶18 The actions of the parties, counsel, and District Court concerning custody of the video requires a few closing comments concerning this Court's mandate. Representations by counsel are that the City of Norman Police no longer possess the video, and that possession is maintained by the City's counsel. This representation raises the issue whether the duty of the police department to provide a public record on remand has become moot, as well as raising the issue if the City's duty is to be fulfilled by its attorney on remand. An appeal will be dismissed if it is moot.47 There is no suggestion that the OAB sought equitable relief from the trial court to require the City of Norman Police Department to maintain a copy of the video in its records pending the litigation concerning the video's public status or that a denial of such request has been the subject of a timely appeal.48 I need not address any potential or hypothetical theories concerning post-remand relief against the City of Norman or the City's duty in advance of their actual adjudication.49 ¶19 The trial court must spread the mandate of record 50 performing that which is required by the Court's opinion,51 and also decide any matter before that court which is left open by our opinion.52 Our opinion requires the OAB to have access to the video as a public record for the OAB to obtain a copy. Our opinion does not expressly state how that access will occur. Two methods may be considered without addressing the City's potential or hypothetical post-remand duties. ¶20 A party usually has access to a record, transcript, and exhibits which are in the custody of the clerk upon an appellate remand when the mandate is spread of record. Records of a court are in that court's custody and control.53 This video is an exhibit which has been admitted by virtue of the trial court's use of the video and is presently in the custody and control of the District Court, although actual possession is with a member of the Bar and an officer of the court. ¶21 The video was in the possession of the City's attorney, used in support of the City's motion, and the City may be considered as the offering party who has an obligation to take possession of a court exhibit, the video, upon conclusion of appeals.54 However, this matter has been the subject of protracted litigation, and the conclusion of this individual appeal should not be a signal to the City to use 20 O.S.2011 § 1011(B) to once again assert exclusive control over the video, especially because of the inevitable post-mandate District Court application(s) to enforce the mandate and provide access for copying. ¶22 A trial judge possesses authority to require counsel for the City to provide the video, as admitted evidence, in a media format the District Court may use to both view the video and be in a convenient form for the clerk and court reporter. A post-remand requirement for filing the video with the court clerk would have the same result if the video had been part of the certified record on appeal and that record been returned to the court clerk upon issuance of mandate. The District Court may control its records and on remand order counsel to file the video in the proper format with the clerk to be used for purpose of copying for the parties as specified by the court. ¶23 The second method relies upon a District Court's authority to compel counsel to provide copies of trial exhibits to opposing counsel in a format convenient for the court. The video is an admitted exhibit. I construe the statements by the parties and the language of the journal entry herein as indicating the actual video presented at the hearing is also the video in the custody of the City's attorney. A trial judge possesses authority to require counsel for the City to provide copies of the video, as a trial exhibit and now adjudicated to be an open police record, to all opposing counsel.55 The District Court may control its records and on remand simply order counsel to provide copies to opposing counsel. ¶24 In summary, I concur in the opinion of the Court, and suggest that in all District Court litigation adjudicating the public or private nature of a record the trial court should file the record at issue with the clerk of the court when necessary for an appellate record, and when appropriate maintain the public or private status quo of the record pending an aggrieved party's opportunity for appellate review. The District Court must enforce this Court's mandate by either providing the OAB a copy by access to the video in the custody of the clerk or by requiring counsel to provide all opposing counsel copies of the video. FOOTNOTES 1 Access to a public record otherwise available "for public inspection and copying" may not be denied because a public official has taken possession of the record for investigation or litigation purposes. 51 O.S.2011 § 24 A. 20. In the present matter, the City argues the record was available for inspection but not copying. 2 C.F. Braun & Co. v. Corporation Commission, 1980 OK 42, 609 P.2d 1268, 1272-1273 (1980) discussing (1) judicial notice in Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 57 S. Ct. 724, 81 L. Ed. 1093 (1937) (Due Process is violated when in the exercise of quasi-judicial power judicial notice of extra-record facts is used without opportunity for rebuttal, and Court noted "The fundamentals of a trial were denied . . . upon the strength of evidential facts not spread upon the record . . . This is not the fair hearing essential to due process."), and (2) Oklahoma Natural Gas v. Corporation Commission, 1923 OK 400, 216 P. 917 (explaining that the Commission was required to "base its findings upon evidence before it."). 3 Okla. Const. Art. 2 § 7: "No person shall be deprived of life, liberty, or property, without due process of law." 4 La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, 418 P.2d 949, 953 ("The jurisdiction of the trial court is limited to the particular subject matter presented by the pleadings, and any judgment which is beyond the issues framed by the pleadings and proof is in excess of the court's jurisdiction and is void.") (emphasis added). See also Oklahoma City v. Robinson, 1937 OK 16, 65 P.2d 531, quoting Gille v. Emmons, 58 Kan. 118, 48 P. 569, 570 (1897) in turn quoting Munday v. Vail, 34 N.J.L. 418, 422 (1871) (A judgment upon a matter outside of the issues pled and tried of record must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard.). 5 Cumbey v. State, 1985 OK 36, 699 P.2d 1094, 1099 ("A trial court's record constitutes the only means for communication of its proceedings to an appellate court."). 6 Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724 ("This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, nor may a deficient record be supplemented by material physically attached to a party's appellate brief."); State v. Torres, 2004 OK 12, ¶ 8, 87 P.3d 572, 578-579 ("Our review must stand confined to that record which was made before the nisi prius court at the time of its decision now under scrutiny."). Cf. Torres v. Seaboard Foods, L.L.C., 2016 OK 20, nn. 100, 101, 373 P.3d 1057, 1081 (legal theory addressed by the Court must be supported by facts appearing on appellate record and factual component of a party's aggrieved status is a "record-driven necessity"). 7 B-Star, Inc. v. Polyone Corp., 2005 OK 8, ¶ 17, 114 P.3d 1082, 1086. 8 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 22.07, 505 (2d ed. 2000). 9 Compare B-Star, Inc. v. Polyone Corp., 2005 OK 8, ¶ 17, 114 P.3d 1082, 1086, citing 12 O.S. 2001 § 3232 ("To be considered on appeal, the transcript of the video deposition must be made a part of the record in the trial court and on appeal."), and U.S. v. Price, 54 F.3d 342 (7th Cir. 1995) (The court noted evidence necessary for resolving the appeal came from a video and court discussed what the video showed in addition to the statements in the recorded dialogue). Using a surveillance video as evidence depicting an event is not novel. Pham v. State, 1988 OK CR 63, 752 P.2d 830, 832 (videotape of the crime was properly admitted, "[a]lthough the record reflects that the audio portion was less than clear, the jury was able to clearly see the actual incident as it occurred."); Lee v. State, 1985 OK CR 62, 700 P.2d 1017, 1019-1020 (no fundamental error occurred where surveillance video was admitted upon authentication by owner of the bar who viewed the video and removed it from the camera); Broadus v. State, 1976 OK CR 184, 553 P.2d 515, 519-520 (videotape with garbled sound was properly admitted upon a foundation "showing that it truly and correctly depicted the events and persons shown" [and] ...that the same was admissible for the purpose of corroborating the testimony of the prosecution's witnesses."). Cf. Kies v. City of Lima, 612 F. Supp. 2d 888, 895 (N.D. Ohio 2009) (video recording of event, an arrest, was admissible "as a depiction of the scene it represents" pursuant to Fed. R. Evid. 901, although no sound was recorded); U. S. v. Stephens, 202 F. Supp. 2d 1361, 1368 (N.D. Ga. 2002) ("recent federal decisions indicate that recordings made by surveillance equipment that operates automatically, such that no human being actually witnessed what the camera recorded while the camera was recording it, may satisfy the requirements of the Federal Rules of Evidence"). 10 Cumbey v. State, supra, Chamberlin v. Chamberlin, supra, State v. Torres, supra, Torres v. Seaboard Foods, supra. 11 Eckel v. Adair, 1984 OK 86, n. 9, 698 P.2d 921, 924. 12 12 O.S.Supp.1997 Ch. 15, App. 1, Rule 1.33(c) (eff. Jan. 1, 1997). 13 12 O.S.Supp. 2015, Ch. 15, App. 1, Okla. Sup. Ct. R. 1.33 (c) ("The trial exhibits shall be indexed and incorporated into the transcript either by reference or physical attachment, as the court reporter may deem advisable. However, only two dimensional exhibits no larger than 8 1/2" x 14" may be transmitted to the Supreme Court with the record, except upon order of the Court.). 14 Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497 (appeal dismissed because appellate record "presents nothing for our review."); Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143 (In an appeal from summary judgment an appellate court's review is limited to the record before the trial court.). 15 Booth v. McKnight, 2003 OK 49, 70 P.3d 855, (uncontroverted facts not appearing in the appellate record but in the parties' briefs may be considered to supplement an incomplete judgment roll); Board of Ed. of Ind. Sch. D. No. 48, Hughes Cty. v. Rives, 1974 OK 153, 531 P.2d 335, 336 (Court used in its opinion undisputed facts which were found in the appellate briefs). 16 Some courts have held it is possible for a video exhibit to be incorporated by reference in a petition and a defendant's reliance upon statements or what is shown in that video will not necessarily convert the defendant's dismissal motion to one for summary judgment. First, a petition includes that which is incorporated by reference, and reliance upon incorporated material does not convert a motion to dismiss into a motion for summary judgment. Tucker v. Cochran Firm-Criminal Defense Birmingham L.L.C., 2014 OK 112, ¶ 30, n. 46, 341 P.3d 673, 684-685 relying upon the explanation of Federal Rule 10(c), and 12 O.S. § 2010 in Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 4, n. 10, 958 P.2d 128, 136. Secondly, some courts have indicated that a federal complaint's reliance upon incorporated material may include statements in a video. Garcia v. Bloomberg, 865 F. Supp. 2d 478, 483 n. 1, 492 (S.D.N.Y.2012) (statements in videos incorporated by reference into the federal complaint can be considered in deciding a motion to dismiss and crediting videos where "the videos themselves rebut plaintiffs' allegations"), reversed on other grounds, Garcia v. Does, 779 F.3d 84, n. 2, 87-88 (2d Cir. 2015) (noting party's concession that video was incorporated, but declining to decide whether Rule 10(c) incorporation extends to videos); Hershey v. Goldstein, 938 F. Supp. 2d 491, n. 1, 498 (S.D.N.Y. 2013) (discussing incorporation by reference and relying in part on the District Court's decision in Garcia); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690-691(7th Cir. 2012) (reserved the issue until a later date but noted incorporation of video by reference had been adopted by district courts, and "it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works."). 17 Norman v. Trison Development Corp., 1992 OK 67, 832 P.2d 6, 8 ("... if a defendant asserts by motion that the petition fails to state a claim upon which relief may be granted and tenders for consideration materials dehors the pleadings, summary judgment procedure must be utilized."). 18 An adjudication of a 12 O.S. § 2012(B)(6) motion to dismiss is converted to an adjudication on a motion for summary judgment when a non-jurisdictional ground is raised and the motion relies upon matters outside the pleadings. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, nn. 9-10, 297 P.3d 378, 384 (explaining (1) that a motion to dismiss based solely upon a jurisdictional ground is not converted to one for summary judgment by reliance upon matters outside the pleadings, but a § 2012(B)(6) motion is so converted when reliance is made upon matters outside the pleadings, and (2) an adjudication in the form of summary judgment is on the merits of a controversy.). 19 12 O. S. Supp. 2016, Ch. 15, App. 1, Rule 1.36 (c)(A) provides: (c) Record on Appeal. The record on appeal will stand limited to: (A) In appeals from summary judgment: (1) the memorialized order by which summary judgment was entered; (2) pleadings proper as defined by 12 O.S. 2007(A), (petition, answer, etc.); (3) applicable instruments on file, including the motion and response with supporting briefs and attached materials filed by the parties as required by District Court Rules 13(a) and 13(b); (4) any other item on file which, according to some recitation in the trial court's journal entry or in some other order, was considered in the decisional process;(5) any other order dismissing some but not all parties or claims; (6) any transcripts of proceedings on the motion(s); (7) any motions, along with supporting and responsive briefs, for new trial (re-examination) of the summary judgment process; (8) the appearance docket; and (9) a cover page and Index of the record prepared by the party. 20 In addition to the absence of the video from the appellate record, I must also note documents or public records concerning an arrest, such as a record of the sheriff's service fee, are apparently not available for review due to the District Court's action in removing them from public examination and their absence from the record on appeal. 28 O.S.2011 § 153.2: "In any criminal case in which a defendant is arrested for a violation of state law, Five Dollars ($5.00) of the costs charged in said case as provided for in Section 153 of Title 28 of the Oklahoma Statutes shall be paid to the Sheriff's Service Fee Account of the sheriff of the county in which the arrest was made. This fee shall be in addition to the fee authorized by Section 153 of Title 28 of the Oklahoma Statutes and shall be used to defer the costs associated with arrest." 21 1994 OK 142, 897 P.2d 1116. 22 State ex rel. Ins. Fund v. JOA, Inc., 2003 OK 82, ¶ 7, 78 P.3d 534, 536-537. 23 In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 18, 326 P.3d 496, 504 (A court generally presumes a public official acts in good faith.); Copeland v. Lodge Enterprises, Inc., 2000 OK 36, ¶ 9, 4 P.3d 695 (When the day of trial arrives a party must have more than mere allegations, the party must possess "some proof to support his allegations."). 24 Southwestern Bell Telephone Co. v. Oklahoma Corporation Commission, supra. See also the discussion in notes 45 and 46 infra. 25 Aaron v. Farrow, 1925 OK 357, 238 P. 202, 203-204. 26 20 O.S.2011 § 1011(B) states: "It shall be mandatory that the offering party in any case shall take possession of all exhibits offered in a case at the conclusion of an appeal, or after the appeal time has elapsed if no appeal is taken, except in capital murder and workers' compensation cases." 27 Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, n. 28, 270 P.3d 113, 122. 28 Okla. Sup. Ct. R. 1.37: (a) Trial Court Jurisdiction. After a petition-in-error has been filed, the trial court retains jurisdiction in the case for the following purposes: (1) To facilitate the completion of the record and allocate the costs of its preparation . . . . (4) To decide motions in regard to staying the enforcement of judgments, decrees or final orders or of interlocutory orders appealable by right, whether subject to stay of enforcement as a matter of statutory right, or subject to a discretionary stay order. 29 A declaratory judgment has the force and effect of a final judgment and is reviewable in the same manner as other judgments. 12 O.S.2011 § 1654. In this proceeding, the District Court may stay the enforcement of its declaratory judgment pending an appeal with continuing jurisdiction to modify the order, including jurisdiction to maintain the status quo. 12 O.S.2011 § 990.4(D) ("In any action not provided for in subsection A, B or C of this section, the court may stay the enforcement of any judgment, decree or final order during the pendency of the appeal....") & § 990.4(E) ("The trial court shall have continuing jurisdiction during the pendency of any posttrial motion and appeal to modify any order it has entered regarding security or other conditions in connection with a stay."). The District Court's statutory requirement to maintain the status quo in some circumstances pursuant to 12 O.S.2011 § 990.5 is cited in note 46 infra. 30 51 O.S.2011 § 24A.8(B): Except for the records listed in subsection A of this section and those made open by other state or local laws, law enforcement agencies may deny access to law enforcement records except where a court finds that the public interest or the interest of an individual outweighs the reason for denial. 31 51 O.S.2011 § 24 A. 29. 51 O.S.Supp.2016 § 24 A. 29 currently provides in part:. A. Unless confidentiality is specifically required by law, any order directing the withholding or removal of pleadings or other material from a public record shall contain: 1. A statement that the court has determined it is necessary in the interests of justice to remove the material from the public record and in those instances where such withholding is required by law, the order shall so indicate; 2. Specific identification of the material which is to be withheld, removed or withdrawn from the public record, or which is to be filed but not placed in the public record; and 3. A requirement that any party seeking to file protected materials place such materials in a sealed manila envelope clearly marked with the caption and case number, the word "CONFIDENTIAL", and stating the date the order was entered and the name of the judge entering the order. This requirement may also be satisfied by requiring the party to file the documents pursuant to the procedure for electronically filing sealed or confidential documents approved for electronic filing in the courts of this state. 32 51 O.S.Supp.2016 § 24A.29(D): "All documents produced or testimony given under a protective order shall be retained in the office of counsel until required by the court to be filed in the case." 33 51 O.S.Supp.2016 § 24 A. 29 (A)(2) requires the court's order to provide a "[s]pecific identification of the material which is to be . . . withdrawn from the public record, or which is to be filed but not placed in the public record...." 34 Dixon Property v. Shaw, 1999 OK 96, ¶¶ 7-11, 2 P.3d 330, 332-333 (court record includes videotape admitted in Workers' Compensation Court proceeding). In one sense, an exhibit's status as part of a trial court record is not the same as whether that exhibit is part of the evidence in a case. See, e.g., In re Estate of Whitlock, 1988 OK 10, 754 P.2d 862 (deposition testimony on file in the office of the trial court's clerk may or may not be part of the evidence in a case based upon whether it was admitted or properly excluded). 35 51 O.S.2011§ 24A.3(1)(2) states in part: "'Record' means . . . video record or other material regardless of physical form or characteristic... 2. 'Public body' shall include...court...." 36 Records of a public body are open for copying. 51 O.S.2011 § 24 A. 5, which states in part: "All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours; provided: 1. The Oklahoma Open Records Act, Sections 24 A. 1 through 24 A. 30 of this title, does not apply to records specifically required by law to be kept confidential including:...." 37 The clerk of the District Court may charge representatives of the media "the direct cost of making the copy" of any electronic media. 51 O.S.Supp.2016 § 24A.5(4) states in part: "Any request for a record which contains individual records of persons, and the cost of copying, reproducing or certifying each individual record is otherwise prescribed by state law, the cost may be assessed for each individual record, or portion thereof requested as prescribed by state law . . . however, publication in a newspaper or broadcast by news media for news purposes shall not constitute a resale or use of a record for trade or commercial purpose and charges for providing copies of electronic data to the news media for a news purpose shall not exceed the direct cost of making the copy." 38 51 O.S.Supp.2016 § 24 A. 30, states in part: "All court records, as defined by Section 32.1 of Title 12 of the Oklahoma Statutes, shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential." (Emphasis added). 39 12 O.S.2011 § 32.1: "The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if the items of an account, or the copies of papers attached to the pleadings, be voluminous, the court may order the record to be made by abbreviating the same, or inserting a pertinent description thereof, or by omitting them entirely. Evidence must not be recorded." 40 An admitted exhibit is "evidence" for the purpose of an evidentiary record but is not part of the judgment roll. Fent v. Oklahoma Natural Gas Co., a Div. of Oneok Inc., 1994 OK 108, 898 P.2d 126, 131-132 ("Evidence lies outside the judgment roll of an action."). 41 I must also note no legal claim for either a vested property right in the content or legal right of confidentiality in the content has been alleged or adjudicated, but such issue would potentially arise if a court allowed unrestricted copying of exhibits in the custody of a court reporter or court clerk. For example, an exhibit that is copyrighted material such as documents, songs, and videos, does not lose copyright status when filed as an exhibit in a legal proceeding. See, e.g., David H. Isaacs, The Highest Form of Flattery? Application of the Fair Use Defense Against Copyright Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L. Rev. 391, 412, n. 78 (2006) ("Indisputably, when musicians have submitted copies of their songs to the court as exhibits in order to resolve a copyright dispute, those songs have not lost their copyrighted status."). Copyright status, by itself, will not prevent a party from using copyrighted material as an exhibit. See, e.g., John Tehranian, The New ©ensorship, 101 Iowa Law Rev. 245, n. 236, 290, (2015) citing Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 (9th Cir. 1992), quoting 3 Nimmer on Copyright § 13.05(d) (1991) ("works are customarily reproduced in various types of judicial proceedings, including obscenity and defamation actions ... and it seems inconceivable that any court would hold such reproduction to constitute infringement either by the government or by the individual parties responsible for offering the work in evidence"). 42 Oklahoma Public Employees Ass'n v. State ex rel. Oklahoma Office of Personnel Management, 2011 OK 68, ¶ 36, 267 P.3d 838, 851. 43 Appellant's Brief, No. 113,973, Oct. 14, 2016, at pg. 5. 44 Gilson v. State, 2000 OK CR 14, n.2, ¶ 16, 8 P.3d 883, 898, citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). See also Davis v. State, 2011 OK CR 7, n. 1, 246 P.3d 1097, quoting Alford, 400 U.S. at 37: "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." 45 A Rule 1.15 stay involves several factors, a minimum of four, which are weighed or balanced by the Court. Okla. Sup. Ct. R. Rule 1.15: "No application for a stay, supersedeas, or suspension pending appeal will be considered unless the applicant addresses: (a) The likelihood of success on appeal; (b) The threat of irreparable harm to moving party if relief is not granted; (c) The potential harm to the opposing party; and (d) Any risk of harm to the public interest." The nature of weighing or balancing by the Court may be observed in opinions addressing similar factors used to show a need for a temporary injunction. Edwards v. Board of County Com'rs of Canadian County, 2015 OK 58, ¶ 12, 378 P.3d 54, 59 ("To obtain a temporary injunction, a plaintiff must show that four factors weigh in their favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking the relief if the injunction is denied; 3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest."). 46 The judgment was not "against" the City of Norman. Whether a District Court may order a public entity to provide public access to a record for copying during an appeal of the public/private nature of a record may involve application of 12 O.S.2011 § 990.5. That section states: "Notwithstanding any other provision of this title, the execution of a judgment or final order of any judicial tribunal against any county, municipality, or other political subdivision of this state is automatically stayed without the execution of supersedeas bond until any appeal of such judgment or final order has finally been determined." I have not addressed whether circumstances may exist when a public interest requires public access to a record and copying during an appeal even though the issue presented on appeal is whether the record is a public record and subject to examination and copying pursuant to the Open Records Act. 47 Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, ¶ 27, 270 P.3d 113, 127, citing Lawrence v. Cleveland County Home Loan Auth., 1981 OK 28, 626 P.2d 314, 315 (rule stated when relief sought is necessarily prevented on remand the appeal will be dismissed as moot, and example of the rule in Lawrence occurred when injunctive relief was sought to prevent the issuance of bonds but they were issued during the appeal, and the record did not reflect that any attempt had been made to obtain a judicially approved stay); Holland v. Agrawal, 2015 OK 68, 364 P.3d 626 (example of an appeal dismissed as moot). 48 See, e.g., Lawrence v. Cleveland County Home Loan Auth., supra, at note 47; Edwards v. Board of County Com'rs of Canadian County, 2015 OK 58, ¶ 10, 378 P.3d 54 ("The purpose of a temporary injunction is to preserve the status quo and prevent the perpetuation of a wrong or the doing of an act whereby the rights of the moving party may be materially invaded, injured, or endangered...A temporary injunction protects a court's ability to render a meaningful decision on merits of the controversy."). 49 Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779, 800 (the Court does not issue advisory opinions or answer hypothetical questions). 50 C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 2002 OK 99, ¶ 19, 72 P.3d 1, 5, quoting Pyle v. Pennington Grocery Co., 1940 OK 176, 101 P.2d 847, 848, (" Where a cause has been presented to the trial court and the issues therein determined, and an appeal has been prosecuted to the Supreme Court and the mandate issued determining the controversy, it is the duty of the trial court to spread the mandate of record."). 51 Smedrsud v. Powell, 2002 OK 87, ¶ 16, 61 P.3d 891, 897 ("At the postremand stage, i.e., after this court's mandate has been transmitted and spread of record, the trial court is duty-bound to comply with its terms by a careful consideration of the opinion on which it is based."). 52 State v. Huston, 1911 OK 221, 116 P. 161 (" It is well settled that the trial court may decide any matters left open, and its decision thereon is subject to be reviewed by a new proceeding in error."). 53 In re Spilman, 2010 OK 70, ¶ 7, 240 P.3d 702, 708. 54 20 O.S.2011 § 1011(B), supra. 55 See, e.g., 12 O.S.Supp. 2013 Ch. 2, App., Uniform Rules for District Courts, Rule 5, Pretrial Proceedings, ¶¶ (G)(3), (I) &(K) (exhibits should be exchanged with opposing counsel to obtain, when necessary, advance rulings from the trial court on the admissibility of evidence; all exhibits must be marked, listed and identified in the pretrial conference order with any objections to admissibility stated, and after pretrial if an additional exhibit is discovered it must be immediately marked for identification and a copy furnished to opposing counsel.).

87e34efe-ba69-41e3-8d0f-5404f387066a

Trusty v. Oklahoma

oklahoma

Oklahoma Supreme Court

TRUSTY v. STATE ex rel. DEPT. OF PUBLIC SAFETY2016 OK 94Case Number: 114208Decided: 09/20/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KYLE TRUSTY, Plaintiff-Appellee, v. STATE OF OKLAHOMA, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA, HONORABLE JAMES B. CROY ¶0 Kyle Trusty was arrested for driving under the influence after crashing his vehicle. Mr. Trusty was taken to the hospital where he consented to a blood test to determine his blood alcohol content. The blood was drawn by a nurse at the hospital, and the arresting officer sent the sample to the police lab. Upon receiving the results, which revealed a .206 blood alcohol content, the Department of Public Safety revoked Mr. Trusty's driver's license. Mr. Trusty appealed to the District Court of Oklahoma County. The trial court vacated the revocation of Mr. Trusty's driver's license because DPS did not call the nurse who drew the blood as a witness to establish that the withdrawal was done in compliance with rules and regulations of the Board of Tests for Alcohol and Drug Influence. We retained the cause and hold that DPS bears the burden of showing compliance with such regulatory requirements for drawing blood in order to use the test results against a driver. AFFIRMED Joanne Horn, Assistant General Counsel, Department of Public Safety, Oklahoma City, Oklahoma, Attorney for Defendant-Appellant Charles L. Sifers, Oklahoma City, Oklahoma, Attorney for Plaintiff-Appellee PER CURIAM ¶1 We retained this cause to address whether the Department of Public Safety must prove compliance with regulatory requirements for the collection of blood for a blood alcohol content test to be used against a driver in a driver's license revocation proceeding. We hold that DPS bears the burden of showing compliance with regulatory requirements for drawing blood under the implied consent statutory scheme in order to use the test results against a driver. FACTS ¶2 On February 1, 2014, Oklahoma City Police Sergeant Eric Helt responded to a call for a welfare check involving a single-car accident at approximately 4:00 a.m. near the intersection of Oklahoma and Reno in Oklahoma City. The Plaintiff-Appellee Kyle Trusty's car had crashed into playground equipment. A nearby witness to the accident, a medical doctor, observed him slumped over the steering wheel and observed that he was not moving and that smoke was coming from the front of the car. She and others at the scene were able to open the door and help him out of the car. He was disoriented and passed out in an area of grass. In the doctor's opinion, he was intoxicated. When he arrived, Sergeant Helt found Mr. Trusty lying in the grass. Sergeant Helt observed Mr. Trusty's unresponsive condition and smelled alcohol on his person. He also observed a still cool, opened, can of beer in the passenger floor board of Mr. Trusty's car. Due to his condition, Mr. Trusty was transported to the emergency room by EMSA. ¶3 While in the emergency room, Mr. Trusty became more responsive, although his speech was slurred at first and his breath smelled like alcohol. Sergeant Helt placed Mr. Trusty under arrest for driving under the influence. Sergeant Helt read him the implied consent test and Mr. Trusty consented1 to a blood test for blood alcohol content. Sergeant Helt informed Mr. Trusty that if his blood alcohol level were .08 or more, his driver's license would be revoked. According to Sergeant Helt, Mr. Trusty's condition prevented him from leaving the hospital to do a breath analysis. ¶4 Sergeant Helt used a sealed blood testing kit, number 133285, provided by the Oklahoma City Police Department. He broke the seal on the kit and provided it to a nurse at the hospital. Sergeant Helt observed the blood draw and the person who signed the affidavit was Tam Nguyen Tran, the nurse who drew the blood. After the blood was drawn, three vials were placed back into the kit, at which time Sergeant Helt sealed the kit and placed it in the refrigerated drop in the OCPD property room. The kit was delivered by the property officer to the OCPD toxicology lab in a sealed condition and the blood was tested. The test results showed an average of .206 blood alcohol content. ¶5 DPS held a hearing on March 30, 2015, and and revoked Mr. Trusty's driving privileges for a period of one year. Mr. Trusty appealed the order revoking his driver's license to the Oklahoma County District Court on May 4, 2015. The trial court held a hearing on June 22, 2015. At the June 22, 2015 hearing, several witnesses were called including: Sergeant Helt; Dr. Jamie Laughy, the witness who pulled Mr. Trusty out of his car; Edward Grimes, another patrolman who investigated the accident; Matthew Scott, the forensic chemist who tested the blood at the OCPD lab; and Kevin Behrens, the Director of the Board of Tests for Alcohol and Drug Influence. The nurse, Tam Nguyen Tran, who drew the blood, was not called as a witness to verify that the tests were done in compliance with the mandated regulations for drawing blood.2 ¶6 On July 15, 2015, the trial court filed an order in which it determined that no evidence was presented by DPS showing compliance with the regulatory requirements attendant to the withdrawal of blood for the implied consent test. The court found: The nurse performing the blood draw in this case did not testify. Only Sergeant Helt testified, stating that he was present while the blood was being drawn. However, he did not offer any basis for the Court to find that he possessed the necessary medical training to testify to the following facts: 1. That the blood was drawn in accordance with accepted medical practices. 2. That Trusty did not suffer from hemophilia. 3. That Trusty was not taking anticoagulant medications. 4. That the blood was withdrawn by venipuncture. 5. That the puncture site had been properly prepared. 6. That necessary precautions to maintain asepsis and avoid contamination of the specimens. 7. That the puncture site preparation was performed without the use of alcohol or other volatile organic disinfectant.3 Accordingly, the court vacated the driver's license revocation and exonerated the bond. ¶7 DPS appealed on August 14, 2015, arguing that the trial court abused its discretion in setting aside Mr. Trusty's driver's license revocation because its dismissal was based only on the fact that the nurse did not testify as to compliance with regulatory requirements for the withdrawal of blood. The cause was retained by the Court on October 19, 2015. DPS BEARS THE BURDEN OF SHOWING COMPLIANCE WITH REGULATORY REQUIREMENTS FOR DRAWING BLOOD IN ORDER TO USE THE TEST RESULTS AGAINST A DRIVER ¶8 Any person who operates a motor vehicle in Oklahoma is deemed to have consented to blood or breath tests in the event they are arrested for driving under the influence or while intoxicated with alcohol or drugs--otherwise known as implied consent.4 When a law enforcement officer has determined that the blood alcohol content of an individual is to be tested, the test shall only be performed by certain medical personnel as provided by 47 O.S. 2011 § 752, which includes registered nurses.5 ¶9 The Board of Tests for Alcohol and Drug Influence was created to prescribe uniform standards and conditions for and to approve satisfactory methods, procedures, techniques, devices, equipment, and records for tests and analysis performed under the implied consent laws.6 To be admissible in evidence, tests administered under the implied consent laws must have been administered or performed in accordance with the rules and regulations of the Board.7 DPS argues that substantial compliance with the rules and regulations for drawing blood is necessary, but no direct testimony from the person who actually drew the blood is ever required. Rather, all that is required is that DPS show by a preponderance of the evidence that Mr. Trusty was driving drunk. Mr. Trusty argues that compliance with the rules and regulations for drawing blood in this type of case may not be presumed or circumstantially shown, but must be directly shown by DPS in order to use the test results to establish its case. ¶10 The regulation of motor vehicles on the highway is a legitimate exercise of the police powers of the state, pursuant to which the state may make all reasonable laws, rules, and regulations for the safety and protection of the public.8 Pursuant to a valid arrest, a police officer has the right to request that a driver of a motor vehicle submit to a chemical or breath test for blood alcohol.9 The statutory framework for such tests to determine whether one is driving while intoxicated is known as the implied consent law.10 Under the implied consent statutes, DPS only has the power to revoke a driver's license in three instances: 1) upon receipt of a blood or breath test and a sworn report from a law enforcement officer averring that he or she had reasonable grounds to believe the driver was driving under the influence;11 2) upon receipt of a sworn report from law enforcement averring that the person refused to submit to the test and that the officer had reasonable grounds to believe the driver was driving under the influence;12 or 3) upon receipt of "any person's record of conviction of driving while impaired."13 ¶11 "The quintessence of the consent law is that by driving a motor vehicle on the public highway, the operator consents to the taking of a chemical test to determine the alcoholic content of his blood." Robertson v. State ex rel. Lester, 1972 OK 126, ¶ 13, 501 P.2d 1099, 1102 (emphasis added). Since 1967, the Legislature has allowed for the imposition of both a criminal and a civil sanction based on a chemical test reflecting evidence of the alcohol concentration in the blood or breath.14 We said in Robertson: '* * * Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drunk only a little and could not be intoxicated. They protect the person who has not been drinking to excess but has an accident and has the odor of alcohol on his breath. They save a person from drunken driving charge when his conduct creates the appearance of intoxication but who actually is suffering from other causes over which he had no control. Robertson, 1972 OK 126, ¶ 11, 501 P.2d at 1102 (internal citations omitted). ¶12 In an administrative driver's license revocation proceeding the focus is "on the due process standards that are built into the regulatory scheme" under the implied consent statutes. Id. "The Oklahoma Implied Consent Law conforms to the constitutional due process requirement by providing notice and opportunity for hearing, providing for administrative hearing subject to judicial review and applying to all licensed motorists in an identical manner." Robertson, 1972 OK 126, ¶ 10, 501 P.2d at 1102. A person's "claim to a driver's license is indeed a protectable property interest that may not be terminated without due process guaranteed by the Fourteenth Amendment." Price v. Reed, 1986 OK 43, ¶ 11, 725 P.2d 1254, 1260. ¶13 Under this administrative scheme, two statutory prerequisites are fundamental to DPS' power to revoke a license: 1) a blood or breath test report or the driver's refusal of such a test; and 2) the officer's sworn report that he or she had reasonable grounds to believe the driver was driving under the influence. See 47 O.S. 2011 §§ 753 & 754(C); See also Chase v. State ex rel. Dep't of Pub. Safety, 1990 OK 78, ¶ 4, 795 P.2d 1048, 1049.15 Only upon receipt of both statutory prerequisites does DPS have the power to "revoke or deny the driving privilege of the arrested person."16 ¶14 At the DPS administrative revocation hearing,17 DPS bears the burden of proving that "the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance as prohibited by law, and whether the person was placed under arrest."18 If the revocation of the driver's license is based upon a breath or blood test result, DPS must also prove: a. if timely requested by the person, the person was not denied a breath or blood test, b. the specimen was obtained from the person within two (2) hours of the arrest of the person, c. the person, if under twenty-one (21) years of age, was advised that driving privileges would be revoked or denied if the test result reflected the presence of any measurable quantity of alcohol, d. the person, if twenty-one (21) years of age or older, was advised that driving privileges would be revoked or denied if the test result reflected an alcohol concentration of eight-hundredths (0.08) or more, and e. the test result in fact reflects the alcohol concentration.19 Because the test results are required to be done in compliance with the Board's regulations and procedures, the scope of the hearing must also necessarily include that compliance be shown for test results to be admissible into evidence.20 Compliance with the testing regulations is what renders the blood or breath test admissible, and the results of the test are what make prima facie evidence that the person was under the influence.21 ¶15 The applicable statutory framework requires compliance with the rules adopted by the Board. DPS is the entity charged with proving compliance with the regulatory scheme. The Oklahoma Constitution, Article 5, vests the Legislature with the power to establish agencies and to designate agency functions.22 The Legislature delegates rule-making authority to facilitate administration of legislative policy and such delegation is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation.23 Administrative agencies create rules which are binding similar to a statute and are only created within legislatively granted authority and approval. Such rules are necessary in order to make a statutory scheme fully operative.24 ¶16 Clearly, the Legislative and Board directive is that DPS show whomever withdrew blood for a blood alcohol test complied with the Board's regulatory requirements in order for the test results to be admitted as proof of blood alcohol level of the driver. Here, this was not done. There was no testimony or other evidence regarding the proper procedures utilized to draw the blood. This Court will not reverse or disturb a finding of a lower court if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support its findings.25 Consequently, we must affirm the trial court's determination that DPS did not show that blood was drawn in accordance of the rules and regulations of the Board. DPS cannot prove it properly revoked Mr. Trusty's driver's license under the implied consent statutes.26 CONCLUSION ¶17 A police officer has the right to request that a driver of a motor vehicle submit to a chemical or breath test for blood alcohol. When a law enforcement officer has determined that the blood alcohol content of an individual is to be tested, the test shall only be performed by certain medical personnel, following statutory and regulatory mandated procedures. The revocation in this case is based on a chemical test, not the refusal of the operator to submit to such a test. In this case, where DPS relied on a blood test to substantiate the revocation, the trial court correctly found that DPS failed to prove that the blood test performed on Mr. Trusty was performed in accordance with the rules and regulations of the Board under 47 O.S. 2011 § 752(H) and OAC § 4020-1-3 (2014), making the blood test inadmissible. The Legislative and Board directive requires DPS show compliance with the regulatory requirements for drawing blood in order for the test results to be admitted as proof of blood alcohol level of the driver. Without an admissible blood test, DPS cannot prove the statutory requirements of § 754(F)(1), and there is no evidence DPS could present on remand to cure these evidentiary defects. AFFIRMED ¶18 Reif, C.J., Combs, V.C.J., Watt, Colbert, Gurich, JJ., concur. ¶19 Kauger (by separate writing), Winchester, Edmondson, Taylor, JJ., concur in part and dissent in part. FOOTNOTES 1 The implied consent test request utilized by the Oklahoma City Police department is included in the record as Exhibit No. 3, and it provides: 1. You have been arrested and you are requested to submit to a test or tests to determine the presence and/or concentration of intoxicants in your body. 2. The state's test will be a [insert ONE word "breath" OR the word "blood"] test. If a blood test is performed, it will be done by approved medical personnel. 3. Once you complete the state's test, you may have an additional test at your own expense, provided that a sufficient quantity of any specimen obtained shall be available to the state for testing. 4. You are not entitled to consult with an attorney prior to making your decision whether or not to submit to the state's tests. 5. You may refuse the state's test, but as a consequence your driver's license will be revoked or denied by the Department of Public Safety. 6. If you are age 21 years or older and the test result is 0.08 or more alcohol concentration, your driver's license will be revoked or denied by the Department of Public Safety. If you are under age 21 and the test result is 0.02 or more alcohol concentration, your driver's license will be revoked or denied by the Department of Public Safety. 7. If your driver's license is revoked or denied by the Department of Public Safety, you may be required to have an ignition interlock installed. 8. Will you take the state's test? Transcript of Proceedings, Ex. 3 (June 22, 2015). 2 The regulation for the collection, transfer, and retention of specimens of blood is found in the Oklahoma Administrative Code, 40: 20-1-3, and it provides in part: (a) Withdrawal and collection of blood. Withdrawal and collection of specimens of blood obtained from living human subjects under the provisions of Title 47 and Title 3 and Title 63, Oklahoma Statutes shall be performed as set forth in this Section. The entire process shall be carried out with full regard for the health and safety of the tested persons, and so as to maintain properly the identity, integrity, and composition of such blood specimens. (1) Collection of blood specimens - general conditions. (A) Blood shall be withdrawn in accordance with accepted medical practices, in an appropriate hospital or medical or clinical environment, and by persons authorized by Title 47, Section 752 of the Oklahoma Statutes, to withdraw blood. (B) No blood shall be knowingly withdrawn from any person with hemophilia or from any person who is taking anticoagulant medication(s) under the direction of a licensed healing arts practitioner. (2) Procedures and techniques, precautions. (A) Blood shall be withdrawn by venipuncture, after appropriate preparation of the puncture site(s), and with necessary precautions to maintain asepsis and avoid contamination of the specimens. Puncture site preparation and skin cleansing shall be performed without the use of alcohol or other volatile organic disinfectant. (B) All blood specimens shall be collected directly in or immediately deposited into suitable clean, sterile, dry containers with inert closures, which contain adequate and appropriate anticoagulant(s) and preservative(s) in accordance with recognized procedural standards. (C) All disposable materials, supplies, and paraphernalia shall not be reused for the withdrawal and collection or storage of blood specimens. All such materials, supplies, and paraphernalia other than required records or those required to be stored or retained or forwarded for evidentiary or other reasonable purposes shall be safely disposed of as soon as practicable after use. All materials, supplies, and paraphernalia with which the tested subject will or may come into physical contact shall be stored, handled, and used in a properly safe and sanitary manner. (D) Each tube or other vessel containing a blood specimen shall be placed into a sealed envelope or other suitable sealed container or enclosure, approved by the State Director of Tests for Alcohol and Drug Influence, and bearing or containing at least the following information: (i) Full name of the subject from whom the blood specimen was obtained (ii) Date, time, and location where the blood specimen was obtained (iii) Name of the law enforcement agency (and unit thereof, if needed for further identification) responsible for obtaining and processing the blood specimen (iv) Legible signature and title of the qualified person who withdrew the blood specimen. . . . Okla. Admin. Code § 40:20-1-3 (2014). 3 Journal Entry at 3 (July 15, 2015). 4 Title 47 O.S. 2011 § 751 provides in part: A. 1. Any person who operates a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings within this state shall be deemed to have given consent to a test or tests of such person's blood or breath, for the purpose of determining the alcohol concentration as defined in Section 756 of this title, and such person's blood, saliva or urine for determining the presence or concentration of any other intoxicating substance therein as defined in this section, if arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, or if the person is involved in a traffic accident that resulted in the immediate death or serious injury of any person and is removed from the scene of the accident to a hospital or other health care facility outside the State of Oklahoma before a law enforcement officer can effect an arrest. . . . 5 Title 47 O.S. 2011 § 752 provides in part: A. Only a licensed medical doctor, licensed osteopathic physician, licensed chiropractic physician, registered nurse, licensed practical nurse, physician's assistant, certified by the State Board of Medical Licensure and Supervision, an employee of a hospital or other health care facility authorized by the hospital or health care facility to withdraw blood, or other qualified person authorized by the Board of Tests for Alcohol and Drug Influence acting at the request of a law enforcement officer may withdraw blood for purpose of having a determination made of its concentration of alcohol or the presence or concentration of other intoxicating substance. Only qualified persons authorized by the Board may collect breath, saliva or urine, or administer tests of breath under the provisions of this title. . . . 6 See 47 O.S. Supp. 2015 § 759. 7 Title 47 O.S. 2011 § 752 provides in part: H. Tests of blood or breath for the purpose of determining the alcohol concentration thereof, and tests of blood, saliva or urine for the purpose of determining the presence or concentration of any other intoxicating substance therein, under the provisions of this title, whether administered by or at the direction of a law enforcement officer or administered independently, at the option of the tested person, on the excess specimen of such person's blood, breath, saliva or urine, to be considered valid and admissible in evidence under the provisions of this title, shall have been administered or performed in accordance with the rules and regulations of the Board, or performed by a laboratory that is exempt from the Board rules pursuant to Section 759 of this title. . . . 8 Tapp v. Perciful, 2005 OK 49, ¶ 21, 120 P.3d 480, 483; Harkrider v. Posey, 2000 OK 94 ¶ 14, 24 P.2d 821, 828. 9 White v. Okla. Dep't of Pub. Safety, 1980 OK 21, ¶ 6, 606 P.2d 1131, 1132. 10 47 O.S. 2011 §§ 751-761. 11 47 O.S. 2011 § 754(C). 12 47 O.S. 2011 § 753. 13 47 O.S. 2011 § 761. However, DPS "shall not suspend such privilege pursuant to this subsection if said person's driving privilege has been revoked based upon a test result or test refusal pursuant to Section 753 or Section 754 of this title arising from the same circumstances which resulted in the conviction." Id. 14 1967 Okla. Sess. 135. 15 Upon a blood or breath test reflecting an alcohol concentration over the legal limit, or upon refusal of such, a driver's license stands revoked. The driver's privilege is forfeited, the license is seized, and the driver is issued a receipt which acts as a temporary license for 30 days. 47 O.S. 2011 § 754(A)-(B). 16See 47 O.S. 2011 § 754(C). In 1990, in Chase v. State ex rel. Dep't of Pub. Safety, 1990 OK 78, ¶ 4, 795 P.2d 1048, 1049, this Court, in an opinion by Justice Opala, specifically noted that "[t]wo statutory prerequisites" were required in order for DPS to properly revoke a driver's license--"a written report that the driver's breath test showed an alcohol concentration of a least 0.10" (now .08) and "the enforcement officer's sworn report 'that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public roads . . . while under the influence of alcohol.'" In that case, the Court found that the sworn officer's affidavit was absent from the record, and as such, there was a "patent deficiency in the statutorily required DPS material." Id., ¶ 5, 795 P.2d at 1050. Such absence made "the Department's revocation order vulnerable to invalidation, on timely appeal, for failure to meet the minimum legislatively prescribed standards for the DPS paperwork on which its administrative action must be rested." Id. 17 If a driver is unsatisfied with the administrative ruling after the hearing, he or she may appeal the administrative order to the district court. See 47 O.S. 2011 § 6-211. The District Court's review of a driver's license revocation is conducted de novo, "'with the "trial de novo" being a trial of the entire case anew, both on the law and on the facts.'" Muratore v. State ex rel. Dep't of Pub. Safety, 2014 OK 3, ¶ 5, 320 P.3d 1024, 1029. 18 47 O.S. 2011 § 754(F). 19 47 O.S. 2011 § 754(F). 20 See also 47 O.S. 2011 § 752(H) ("Tests of blood or breath for the purpose of determining the alcohol concentration thereof, and tests of blood, saliva or urine for the purpose of determining the presence or concentration of any other intoxicating substance therein, under the provisions of this title, whether administered by or at the direction of a law enforcement officer or administered independently, at the option of the tested person, on the excess specimen of such person's blood, breath, saliva or urine, to be considered valid and admissible in evidence under the provisions of this title, shall have been administered or performed in accordance with the rules and regulations of the Board, or performed by a laboratory that is exempt from the Board rules pursuant to Section 759 of this title."). 21 47 O.S. 2011 § 756. 22 Title 75 O.S. Supp. 2013 § 250.2(A) provides: A. Article V of the Oklahoma Constitution vests in the Legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article VI of the Oklahoma Constitution charges the Executive Branch of Government with the responsibility to implement all measures enacted by the Legislature. 23 Title 75 O.S. Supp. 2013 § 250.2(B) provides: B. In creating agencies and designating their functions and purposes, the Legislature may delegate rulemaking authority to executive branch agencies to facilitate administration of legislative policy. In so doing, however, the Legislature reserves to itself: 1. The right to retract any delegation of rulemaking authority unless otherwise precluded by the Oklahoma Constitution; 2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rulemaking authority; 3. The right and responsibility to designate the method for rule promulgation, review and modification; 4. The right to approve or disapprove any adopted rule by joint resolution; and 5. The right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines such rule to be an imminent harm to the health, safety or welfare of the public or the state or if the Legislature determines that a rule is not consistent with legislative intent. 24 See Estes v. Conoco Phillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518, 523 ("Pursuant to the Administrative Procedures Act, 75 O.S. 2001 §§250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law."). 25 Smith v. State ex rel. Dep't of Pub. Safety, 1984 OK 16, ¶ 7, 680 P.2d 365. A remand in today's case is an exercise in futility as DPS cannot prove, without an admissible blood test, that it properly revoked Mr. Trusty's driver's license under the implied consent statutes. Evidence of whether the officer had reasonable grounds to believe a person was driving under the influence cannot, alone, sustain the revocation under the implied consent procedure. 26 Bryant v. Comm'r of the Dep't of Pub. Safety, 1996 OK 134, 937 P.2d 496, has not been followed in any case involving the implied consent statutes. As recently as February 8, 2016, this Court released for publication and accorded precedential value to an opinion from COCA in Shoptaw v. State ex rel. Dep't of Pub. Safety, 2016 OK CIV APP 32, ___P.3d___. In that case, in an opinion by Judge Wiseman, COCA vacated the driver's license revocation based on an invalid supplemental officer's affidavit under § 754(C). In Muratore v. State ex rel. Dep't of Pub. Safety, 2014 OK 3, 320 P.3d 1024, this Court, with a 6-3 majority, vacated a driver's license revocation because DPS had not carried its burden of proving that a valid breathalyzer test had been performed on a properly maintained testing device under § 754(F)(1) and § 752(H). Notably, after this Court found the breath test invalid and inadmissible, we affirmed the trial court's decision to set aside the revocation. See also Roulston v. State ex rel. Dep't of Pub. Safety, 2014 OK CIV APP 46, 324 P.3d 1261; Tucker v. State ex rel. Dep't of Pub. Safety, 2014 OK CIV APP 45, 326 P.3d 542; Andrews v. State ex rel. Dep't of Pub. Safety, 2014 OK CIV APP 19, 320 P.3d 27; Brockman v. State ex rel. Okla. Dep't of Pub. Safety, 2013 OK CIV APP 48, 301 P.3d 896; State ex rel. Dep't of Pub. Safety v. Kelley, 2007 OK CIV APP 99, 172 P.3d 231. Additionally, 47 O.S. 2011 § 757, which does "not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence," speaks directly to only one element of DPS' case--whether the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance. But evidence of whether the officer had reasonable grounds to believe a person was driving under the influence cannot, alone, sustain the revocation under the implied consent procedure. KAUGER, J., concurring in part/dissenting in part: ¶1 We retained this cause to address whether the State must prove compliance with regulatory requirements for the collection of blood for a blood alcohol content test to be used against a driver in a driver's license revocation proceeding. I agree that DPS bears the burden of showing compliance with regulatory requirements for drawing blood in order to use the test results against a driver. Nevertheless, pursuant to 47 O.S. 2011 §757: "the provisions of sections 751 through 761 of this title do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance." Accordingly, this is not the end of the inquiry. The cause should be reversed and remanded for a determination of "other competent evidence." ¶2 The admissibility of a blood alcohol test against an accused drunk driver is the first portion of this cause. Once the trial court determined that the blood alcohol was inadmissable because there was no evidence presented verifying that the blood was drawn according to the required rules and regulations, neither party asked for a determination of intoxication based upon any evidence other than the blood alcohol test. Consequently, the trial court dismissed the cause. ¶3 In an obvious effort to help to keep drunk drivers off Oklahoma highways, roads, and streets, the Legislature enacted 47 O.S. 2011 §§751-761, otherwise known as the implied consent statutes. Legislative intent is ascertained from the whole act considering its general purpose and objective considering relevant provisions together to give full force and effect to each.1 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.2 Statutes are interpreted to attain that purpose and to champion the broad public policy purposes underlying them.3 Only where the Legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.4 ¶4 As part of this regulatory regime, any person arrested and suspected of driving under the influence of drugs or alcohol or any combination thereof, is entitled to a DPS administrative hearing regarding the future of their driving privileges5 (additional criminal charges may also apply to such drivers). After an administrative proceeding, the driver may also appeal the matter to the district court.6 The crux of this district court hearing is that a blood or breath test will be admitted as evidence that the driver was driving under the influence of drugs, alcohol or any other intoxicating substance.7 However, in the event such tests are unavailable or inadmissable, the Legislature expressly provided an additional opportunity to keep such drivers off the streets by enacting 47 O.S. 2011 §757 which provides: The provisions of Sections 751 through 761 of this title do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance. ¶5 In Bryant v. Commissioner of Dept. of Public Safety, 1996 OK 134, ¶14, 937 P.2d 496 the Court recognized this precise situation when it held that the trial court may consider other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance. Bryant involved a case wherein DPS failed to provide a requested breath sample to the accused drunk driver which was timely requested pursuant to statute. Although we held because of the failure, the breathalyzer test results were inadmissible, pursuant to §757, we remanded the cause for a determination of other competent evidence bearing on the question of whether the driver was under the influence of alcohol or any other intoxicating substance. ¶6 Bryant has never been overruled and it is controlling. The fact that the Court of Civil Appeals has neglected to follow Bryant's teachings is irrelevant. The Court approved publication in Shoptaw v. State ex rel. Dep't of Pub. Safety, 2016 OK CIV. APP. 32, 370 P.3d 32 because the only notice provided to Shoptaw in the driver's revocation case was invalid because it was based on an invalid affidavit. The only facts presented in that case were that "Shoptaw was arrested in Oklahoma City by Officer William Robison for actual physical control of a motor vehicle while intoxicated" and Shoptaw refused the State's sobriety test and was given the "Officer's Affidavit and Notice of Revocation/Disqualification" (affidavit and notice). There were no other facts presented concerning his driving or arrest. ¶7 In Muratore v. State ex rel. Dep't of Pub. Safety, 2014 OK 3, 320 P.3d 1024, the Court addressed the validity of the breathalyzer test and the lack of appropriate rules concerning its operation. "Other evidence" of the driver's intoxication was expressly disclosed as not being an issue in Muratore because the driver stipulated that the officer had reasonable suspicion to arrest the driver. The only facts presented to the Court regarding the arrest were that "Plaintiff-Appellee Mark Muratore was arrested by Officer Tim Harwell of the Edmond Police Department for operation of a motor vehicle while under the influence of an intoxicating substance. The arresting officer read him the Oklahoma Implied Consent advisory and transported Muratore to the booking area of the Edmond city jail where he voluntarily submitted to a breathalyzer test." ¶8 Trusty crashed his car into playground equipment in a park. The arresting officer observed his condition and smelled alcohol coming from his breath and person. A still cool can of beer was found in the passenger floor board of Trusty's car. The doctor who pulled Trusty from the car immediately after the accident, stated that he was disoriented, and in her opinion, intoxicated. He was found unconscious and had to be taken to the ER to sober up enough to talk to the arresting officer and consent to the blood alcohol test. ¶9 Other evidence existed which could have shown that Trusty may have been "under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance." DPS is under funded, under staffed and under a mountain of cases which have yet to be tried, yet, the majority inhibits their ability to prove intoxication based solely on test results. This is not the law and it ignores Legislative mandates. ¶10 I am in complete support of keeping our streets clear of drunk drivers.8 DPS cannot nullify the statutes, rules and regulations by omitting required evidence. DPS is required to prove consent to and performance of a valid chemical test, or the refusal of the driver to submit to such a test, in order to revoke a license and nothing in this opinion changes that Legislative directive. However, in the event, the test is determined to be inadmissable, the Legislature has also directed that the trial court may consider other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance. We cannot ignore this directive simply because it may or may not be futile based upon existing evidence. Without this directive, the implied consent statutes are meaningless and the Legislative goal of keeping drunk drivers off our streets is easily thwarted by the mere inadmissibility of a blood or breath test and ignoring the factual events which occurred, resulting in a revocation in the first place. This is precisely the effect of the majority opinion in this cause. Another drunk driver is released to freely drive the streets because of a technicality with a test result without considering all of the other evidence showing that he was indeed drunk. This defies logic, common sense and, statutory law. FOOTNOTES 1 Clifton v. Clifton, 1990 OK 88, ¶7, 801 P.2d 693, 696, Maule v. Indep. Sch. Dist. of Oklahoma Cnty. 185 OK 110, ¶11, 714 P.2d 198, 203, Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm's, 1988 OK 117, ¶7,764 P.2d 172, 179. 2 King v. King, 2005 OK 4, ¶ 22, 107 P.3d 570, Fuller v. Odom, 1987 OK 64, ¶4, 741 P.2d 449, 453; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132, 134. 3 See King v. King, at ¶22 note 2 supra, State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824, 827, Matter of Estate of Flowers, 1993 OK 19, ¶11, 848 P.2d 1146, 1151. 4 See King v. King, at ¶ 22 see note 2 supra, Haggard v. Haggard, 1998 OK 124, ¶1, 975 P.2d 439, 442; Price v. Southwestern Bell Tel. Co., 1991 OK 50, ¶7, 812 P.2d 1355, 1358. 5 Title 47 O.S. 2011 §754. 6 Title 47 O.S. 2011 §755 provides: If the revocation or denial is sustained, the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the district court in the manner and subject to the proceedings provided for in Section 6-211 of this title. The district court may modify the revocation or denial when it is determined by the court that the person whose license or permit to drive has been revoked or denied has no other adequate means of transportation and may enter a written order directing the Department of Public Safety to allow driving, subject to the limitations of Section 6-205.1 of this title and the requirement of an ignition interlock device as provided in Section 754.1 of this title; provided, any modification under this paragraph shall apply to Class D motor vehicles only. 7 Title 74 O.S. 2011 §756. 8 The purpose of revocation or suspension is to protect the public, not punish the licensee. Robertson v. State ex rel. Lester, 1972 OK 126, ¶14, 501 P.2d 1099.

7a54c560-90d5-4fc9-88ac-316ba1e797a0

In the Matter of M.H.C.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF M.H.C.2016 OK 88Case Number: 114552Decided: 09/13/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF M.H.C., Alleged Deprived Child, STATE OF OKLAHOMA, Petitioner/Appellant, v. DAWN REICH-CRABTREE (Natural Mother) and TRAVIS CRABTREE (Natural Father), Respondents/Appellees, and BRANDI HORN (Foster Mother), Appellant, and M.H.C. (Minor Child), Appellee, and CHEROKEE NATION, Intervenor/Appellee.) ON APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, THE HONORABLE STEPHEN R. PAZZO, PRESIDING. ¶0 Cherokee Nation filed a motion to transfer the deprived case of M.H.C. to tribal court upon natural mother's tribal enrollment. State of Oklahoma and foster mother objected. The district court granted the motion to transfer, finding State and foster mother failed to present clear-and-convincing evidence to overcome the presumption in favor of tribal court jurisdiction in cases concerning the Indian Child Welfare Act. 25 U.S.C. §§ 1901-1963 (1978). This Court retained the appeal for disposition. AFFIRMED. Zach Cabell, Assistant District Attorney Rogers County, Claremore, Oklahoma, for Appellant State of Oklahoma. Becki A. Murphy and Megan M. Decker, Murphy Francy, PLLC, Tulsa, Oklahoma, for Appellant Brandi Horn. Chrissi R. Nimmo, Assistant Attorney General, Cherokee Nation, Tahlequah, Oklahoma for Intervenor/Appellee Cherokee Nation. Allison Wade, Wade Law Firm, Tulsa, Oklahoma, for Appellee Dawn Reich-Crabtree. Kimberly Appleman, Rogers County Public Defender, Catoosa, OK, for Appellee M.H.C. Taylor, J. ¶1 Section 1911(b) of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1968 (1978), controls a motion to transfer a child-custody proceeding from state court to tribal court where the child is an Indian child under the statutory definition. The questions presented to this Court are whether the district court erred when it (1) found ICWA applicable to a case where the child was not an Indian child when the case was filed and (2) found lack of good cause to keep the case in state court. As an aside, before this Court is also the question whether a finding of ICWA's applicability must be applied retroactively to all prior proceedings in the case. We answer each question in the negative. I. FACTS AND PROCEEDINGS ¶2 M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA's provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member. ¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child's case file and birth certificate. After the Cherokee Nation's initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child's enrollment application without natural mother's assistance. Ms. Choate testified she had previously filled out a child's application to help the child gain tribal membership. ¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother's care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA's benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case. ¶5 In September 2014, the State filed a motion to terminate the natural mother's rights due to her absence in the pending court proceedings. The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother's rights due to statutorily defective service. On June 9, 2015, the district court found natural mother's rights were still intact and the permanency plan should be reunification. ¶6 On November 20, 2015, the district court granted the Cherokee Nation's motion to transfer the case to tribal court, finding the State failed to provide clear-and-convincing evidence of good cause to deny the transfer. The State and foster mother (together Appellants) appealed. This Court retained the appeal for disposition. Neither DHS, nor the natural mother, nor the child through her attorney objects to the transfer to tribal court jurisdiction. Only the State and the foster mother object. II. STANDARD OF REVIEW AND BURDEN OF PROOF ¶7 ICWA's applicability is a question of law. The standard of review for questions of law is de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. When ruling on a motion to transfer jurisdiction to tribal court, the party opposing transfer has to prove good cause to keep the case in state court by clear-and-convincing evidence. See In re M.S., 2010 OK 46, ¶ 19, 237 P.3d 161, 167. This Court has yet to establish the deference it will give to the district judge's decision to grant a motion to transfer under ICWA or the Oklahoma Indian Child Welfare Act (OICWA). See id. We need not do so here because even under the least discretionary standard, the evidence supports the district court's decision. III. 25 U.S.C. § 1911(b)'s APPLICATION ¶8 In 1978, the United States Congress passed ICWA in response to the alarming rate at which states were taking away tribal children from parents and tribes in child-custody proceedings. See 25 U.S.C. at § 1901(4). Congress' stated policy for enacting ICWA was to establish minimum federal standards "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" during state child-custody proceedings. Id. § 1902. ¶9 The only provision of ICWA at issue here is Section 1911(b). Section 1911(b) provides: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe . . . . Section 1911(b) of ICWA applies in (1) proceedings for foster care placement and termination of parental rights (2) involving an Indian child. Id. § 1903(1) & (4)(b); see Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2557 n.1 (2013). ICWA defines an Indian child as "any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). No one contests that this is a proceeding that falls under Section 1911(b). Appellees urge that the Child meets the definition of Indian child and ICWA applies, while Appellants urge that Section 1911(b) and ICWA are inapplicable based on their perceived justifications. ¶10 First, Appellants argue Congress' intent when passing ICWA was to limit ICWA's reach. Pointing the Court to Neilson v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011), Appellant's position is that congressional intent to limit ICWA's reach is found in its rejection of a proposed definition of "Indian" to include all persons eligible for membership in an Indian tribe within ICWA's purview whether or not a parent was a tribal member. However, their argument fails to recognize that the current definition, as passed by Congress, includes the child as well. The child is an unmarried minor, and upon the natural mother's membership in the Cherokee Nation, the child became "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. §§ 1903(1) & 1903(4)(b); Baby Girl, 133 S. Ct. at 2557 n.1. ¶11 Next, Appellants urge that OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA's application to children who are Indian children prior to the proceedings' initiation. OICWA applies ICWA "to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated." Id. § 40.3 (emphasis added). Appellants argue that because the statute only mentions application at the time the proceedings initiate, OICWA impliedly limits application to children who fall within ICWA's definition of Indian child when taken into protective custody. ¶12 This Court settled this issue in In re Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d 1099, 1105-06. This Court found that, under the 1994 amendment to Section 40.3, [OICWA] controls regardless of whether the child or children involved in the proceeding are in the physical or legal custody of an Indian parent or Indian custodian when the state proceedings are initiated. Id. Rather than restricting the definition of Indian child only to those children that meet the definition at the proceeding's initiation, as the State could not do, see id. ¶ 12, 103 P.3d at 1104, OICWA expands the reach in Oklahoma of ICWA's protections by eliminating the need for an existing Indian custodian at the time the state proceedings are initiated. See id. ¶13 Similarly, Appellants argue ICWA's plain language prohibits applying ICWA to a case where the child is not in a parent's custody at the time the child comes within ICWA's definition of Indian child. Appellants rely on the language of Section 1912(e) and (f). These provisions require an initial determination that the "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" before a court can order a foster care placement or the termination of parental rights. 25 U.S.C. § 1912(e) & (f). These provisions grant extra protections before parental rights are impacted and do not address the issue before this Court as to whether the district court erred in transferring the proceeding to tribal court. Neither does their language impose a restriction on ICWA's definition of Indian child to require parental custody at the time a child classifies as an Indian child. We reject Appellants' contention. ¶14 Appellants next argument is at best confusing. Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902's policy statement, ICWA applies only to "intact Indian families," and no Indian family existed at the time of the child's removal. ¶15 We agree that Congress was concerned by the familial impact of wholesale removal of Indian children from their homes. But of equal concern was the impact on tribes' stability and security. 25 U.S.C. § 1902; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989) ("[F]or Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves . . . ."). Tribal interest and protection are "at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents." Holyfield at 52. Two primary concerns in establishing ICWA were that the removal of Indian children from their tribes (1) is detrimental to the long-term survival of tribes, and (2) has "damaging social and psychological impact[s]" on the children. Id. at 50. Appellants have pointed only to the heightened protections before removal of children from parental custody and ignore other protections such as the right to transfer a proceeding to tribal court whether or not parents ever had custody. Baby Girl, 133 S. Ct. at 2561 n. 6 (agreeing with Justice Sotomayor's dissent); see id. at 2574 (Sotomayor, J., dissenting). ¶16 ICWA applies prospectively to a proceeding when the record establishes the child meets ICWA's definition of an Indian child. Appellants argue the district court erred in finding ICWA applicable at a stage in the proceeding later than the proceeding's commencement. Appellants then argue that making such a finding will force retroactive application of ICWA. We disagree. ¶17 We agree with the Supreme Court of Nebraska, "the provisions of ICWA . . . apply prospectively from the date Indian child status is established on the record." In re Adoption of Kenton H., 725 N.W.2d 548, 555 (Neb. 2007). In support of their argument, Appellants rely on Baby Girl and Neilson; however, we find our ruling consistent with these cases as neither case applied ICWA retrospectively from the date the record established it was applicable. Baby Girl, 133 S. Ct. at 2565; Neilson 640 F.3d at 1122. Both Baby Girl and Neilson can be construed either as applying ICWA prospectively from the date the record showed it applied or as a waiver of a parent's right to assert ICWA's protections. Upon the date the record shows that ICWA is applicable, the proceedings must be ICWA compliant. In the present case, ICWA became applicable on February 5, 2015, when the natural mother gained membership in the Cherokee Nation, making the child an Indian child under ICWA. Retroactive application of ICWA is not applicable here to invalidate the district court's prior orders. ¶18 Next, Appellants rely on Baby Girl to argue ICWA can only apply to "intact Indian families." 133 S. Ct. at 2562-2563. In Baby Girl, the natural father attempted to withdraw his relinquishment of parental rights and consent to an adoption, claiming the termination of his parental rights and the adoption did not comply with ICWA. Id. at 2559. The Supreme Court found ICWA's termination statute, Section 1912(f), provided heightened protection for "intact Indian families." Id. at 2562-63. Here, the Cherokee Nation is seeking to transfer the proceeding to tribal court. Unlike Baby Girl, the natural mother sought to neither withdraw a relinquishment of her parental rights nor withdraw a consent to an adoption. The language in Section 1912(f) utilized by the Supreme Court of an "intact Indian family" is not found in Section 1911(b) addressing transfers to tribal courts. Appellants' reliance on Baby Girl is misplaced; Baby Girl is factually distinguishable and addressed Section 1912(f) of ICWA, not Section 1911(b), making the U.S. Supreme Court's holding on which Appellants rely irrelevant here. ¶19 Finally, Appellants rely on the United States Court of Appeals for the Tenth Circuit's holding in Neilson v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011), to argue against ICWA applicability. In Neilson, the natural mother attempted to invalidate the termination of her parental rights at the proceeding's adoption stage by urging ICWA applicable after she had relinquished parental rights and consented to the baby's adoption. Id. at 1119. As in Baby Girl, the court was addressing the termination of parental rights, not the transfer of the proceedings to tribal court. For the same reasons that Appellants' reliance on Baby Girl is misplaced, their reliance on Neilson is also misplaced. ¶20 The provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding. The district court did not err in finding that it should consider whether good cause existed to deny the motion to transfer to tribal court. IV. 25 U.S.C. § 1911(b) MOTION TO TRANSFER ¶21 In a state court proceeding for foster care placement or termination of parental rights, ICWA directs a state court to transfer jurisdiction to tribal court. 25 U.S.C. § 1911(b). Section 1911(b) provides that the court, "in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe." Id. Good cause is an exception to a transfer to tribal court. ICWA does not define "good cause," and the Supreme Court has not articulated a definition. Appellants argue that if Section 1911(b) is applicable to these proceedings, the district court nonetheless erred in granting the motion to transfer to tribal court. It is undisputed that the State bore the burden of establishing good cause by clear-and-convincing evidence. See In re M.S., 2010 OK 46, ¶ 19, 237 P.3d 161, 167. The district court found the State did not meet their burden and granted the transfer to tribal court. ¶22 The Bureau of Indian Affairs (BIA) published the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings in 1979 for state courts to use in proceedings when ICWA applies. 44 Fed. Reg. 67,584 (Nov. 28, 1979). The 1979 BIA Guidelines provided a non-exclusive list of what did not amount to good cause. (a) Good cause not to transfer the proceeding exists if the Indian child's tribe does not have a tribal court as defined by the Act to which the case can be transferred. (b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists: (i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing. (ii) The Indian child is over twelve years of age and objects to the transfer. (iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. (iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe. (c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists. (d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer. ¶23 While recognizing the non-exclusive list of what is not "good cause" under the 1979 BIA Guidelines in In re M.S., this Court analyzed the only three factors recognized as relevant by the In re M.S. district court. 2010 OK 46, ¶ 20, 237 P.3d at 168. These were (a) the length of time between the state court's initial exercise of jurisdiction and the filing of the motion to transfer, (b) the relationships between the children and their foster parents, their attorney, DHS social workers, and medical providers, and (c) the location of the most relevant evidence. Id. After analyzing these factors, this Court found that the district court had erred in finding good cause not to transfer the case from the Oklahoma state court to the tribal court in the State of Washington. Id. ¶ 42, 237 P.3d at 172. ¶24 Effective December 12, 2016, the BIA amended the 1979 BIA Guidelines by enacting regulations that rewrote what the 1979 BIA Guidelines defined as "good cause" and that were more closely aligned with ICWA. Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10,146 (Feb. 25, 2015) (to be codified at 25 C.F.R. 23.117 to 23.118). Subsection C.2 of the 2016 BIA Guidelines provides the new criteria: Upon receipt of a transfer petition from an Indian child's parent, Indian custodian, or Tribe, the State court must transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met: (a) Either parent objects to such transfer; (b) The Tribal court declines the transfer; or (c) Good cause exists for denying the transfer. Id. at 10,156. ¶25 The 2016 BIA Guidelines provides how good cause should be determined: (c) In determining whether good cause exists, the court may not consider whether the case is at an advanced stage or whether transfer would result in a change in the placement of the child because the Act created concurrent, but presumptively, tribal jurisdiction over proceedings involving children not residing or domiciled on the reservation, and seeks to protect, not only the rights of the Indian child as an Indian, but the rights of Indian communities and tribes in retaining Indian children. Thus, whenever a parent or tribe seeks to transfer the case it is presumptively in the best interest of the Indian child, consistent with the Act, to transfer the case to the jurisdiction of the Indian tribe. (d) In addition, in determining whether there is good cause to deny the transfer, the court may not consider: (1) The Indian child's contacts with the tribe or reservation; (2) Socio-economic conditions or any perceived inadequacy of tribal or Bureau of Indian Affairs social services or judicial systems; or (3) The tribal court's prospective placement for the Indian child. Id. The 2016 BIA Guidelines, like the 1979 BIA Guidelines, do not list the factors to be considered when determining what constitutes "good cause" to deny a transfer to tribal court, giving the district court wide discretion in determining relevant factors. Rather the 2016 Guidelines give specific criteria which may not be considered. ¶26 Here, the parties presented evidence only of the three factors analyzed by In re M.S. in support of their arguments: timeliness, best interest of the child, and location of the proceedings. Appellants did not present evidence of any other factors for the district court's consideration. Therefore, we need only address the three In re M.S. factors put forth by the Appellants and not apply the 2016 BIA Guidelines or define "good cause." We have rejected Appellants' timeliness argument when addressing ICWA's applicability. We examine Appellants' other two In re M.S. factors in turn. ¶27 Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court's permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother's care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants' evidence was that the child would suffer from a change in foster-care placement-an issue not before the district court or this Court. ICWA's placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court. One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding. ¶28 The final In re M.S. factor put forth by Appellants is the change in location of the proceedings--from Rogers County District Court to the Cherokee Nation tribal court. The natural mother resides in Tulsa County, and the foster mother resides in Creek County. In light of In re M.S., wherein this Court upheld a motion to transfer to a tribal court in the State of Washington from Oklahoma, 2010 OK 46, ¶ 42, 237 P.3d at 172, a change in location from Rogers County District Court to the Cherokee Nation tribal court is insignificant. Although the Cherokee Nation submitted the 2016 BIA Guidelines as supplemental authority, we need not address the change the 2016 BIA Guidelines have upon the In re M.S. factors. Because even if the In re M.S. factors relied on by Appellants are applicable in this proceeding, they have not established the current In re M.S. factors by clear-and-convincing evidence. We find that the district court did not err in granting the motion to transfer the proceedings to the Cherokee Nation tribal court. V. CONCLUSION ¶29 The district court did not err in finding ICWA applicable upon the natural mother's enrollment in the Cherokee Nation. ICWA applies to the proceedings prospectively from the date the record supports its application. Appellants have failed to present clear-and-convincing evidence of "good cause" for the case to remain in the Rogers County District Court. Appellants' unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court, and the Tenth Circuit Court of Appeals, and ICWA's provisions dealing with termination of parental rights will not support a reversal of the district court's order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer. DISTRICT COURT'S ORDER GRANTING MOTION TO TRANSFER AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 Throughout the proceedings the State was represented by the Rogers County District Attorney. 2 The Cherokee Nation argues that no one--not DHS, the court, the state through the assistant district attorney, or the mother's attorney--informed the natural mother of ICWA's protective provisions. However, the transcript shows a Cherokee Nation representative was also present at the family team meeting where ICWA was discussed with the natural mother. The tribe had equal opportunity to inform natural mother of ICWA's protective provisions, yet did not do so.

6ee469ae-5d45-4717-8366-9d2cc482dbb7

OCPA Impact, Inc v. Sheehan

oklahoma

Oklahoma Supreme Court

OCPA IMPACT, INC. v. SHEEHAN2016 OK 84Case Number: 115108Decided: 07/18/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OCPA IMPACT, INC., and DAVID BOND, Petitioners, v. SHAWN SHEEHAN, LINDA REID, and MELVIN MORAN, Respondents. ORIGINAL PROCEEDING TO DETERMINE THE SUFFICIENCY OF THE GIST AND BALLOT TITLE OF INITIATIVE PETITION NO. 403, STATE QUESTION NO. 779 ¶0 The Petitioners filed an original proceeding to challenge the gist of the measure post-circulation and the sufficiency of the Attorney General's rewritten ballot title. We hold the time for challenging the gist of a measure has expired and we find the Attorney General's rewritten ballot title to be deficient. We hereby amend the ballot title pursuant to Title 34 O.S. Supp. 2015, § 10. APPLICATION TO ASSUME ORIGINAL JURISDICTION IS GRANTED; CHALLENGE OF THE GIST IS UNTIMELY; BALLOT TITLE DECLARED DEFICIENT AND IS HEREBY AMENDED BY THIS COURT PURSUANT TO TITLE 34 O.S. SUPP. 2015, § 10. Robert G. McCampbell, and Travis V. Jett, Fellers Snider, P.C., Oklahoma City, Oklahoma, for Petitioners. D. Kent Meyers, Melanie Wilson Rughani, Paige A. Masters, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Respondents. Patrick R. Wyrick, Solicitor General, and Mithun S. Mansinghani, Deputy Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Attorney General. COMBS, V.C.J.: FACTS AND PROCEDURAL HISTORY ¶1 On October 21, 2015, Respondents/Proponents Shawn Sheehan, Linda Reid, and Melvin Moran (Respondents) filed Initiative Petition No. 403 (State Question No. 779), with the Oklahoma Secretary of State. The petition seeks to amend the Oklahoma Constitution by adding a new Article 13-C. The proposed article creates the Oklahoma Education Improvement Fund, designed to provide for the improvement of public education in Oklahoma through an additional one-cent sales and use tax. Funds generated by the one-cent tax would be distributed to public school districts, higher education institutions, career and technology centers, and early childhood education providers for certain educational purposes outlined in the proposed article. Additionally, a percentage of the funds would be used to provide a $5,000.00 pay raise to all public school teachers. The proposed article delegates oversight and auditing responsibilities to the State Board of Equalization and requires monies allocated from the Fund to be used by the Legislature to enhance and not supplant current public education appropriations. The Respondents' proposed ballot title reads as follows: This measure adds a new Article to the Oklahoma Constitution. The new article creates a limited purpose fund to improve public education. It levies a one cent sales and use tax to provide revenue for the fund. It allocates funds for specific institutions and purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, to increase high school graduation rates, college and career readiness, and college affordability, improving higher education and career technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for administrative salaries. It provides for an increase in teacher salaries. It requires that monies from the fund not supplant or replace other education funding. The Article takes effects [sic] on the July 1 after its passage. Initiative Petition No. 403, Proposed Ballot Title. ¶2 On November 12, 2015, Petitioners OCPA, Inc. and David Bond (Petitioners) filed an Application to Assume Original Jurisdiction in this Court. They raised a single constitutional challenge to the initiative measure, arguing the petition is unconstitutional because it violates the one general subject rule of Art. 24, § 1 of the Oklahoma Constitution. After hearing arguments from the parties and upon consideration, this Court assumed original jurisdiction and held on January 12, 2016, the Initiative Petition No. 403 embraces one general subject and did not violate Art. 24, § 1 of the Oklahoma Constitution. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, 367 P.3d 472. We determined Initiative Petition No. 403 is legally sufficient to submit to the voters of this state, and the proponents of the petition may proceed with the remaining statutory requirements. We also noted, the Petitioners did not challenge the gist of the measure in that proceeding. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1 at ¶2, n.2. ¶3 Pursuant to 34 O.S. Supp. 2015, § 8, the Secretary of State thereafter set the signature gathering period to begin February 16, 2016, and end at 5:00 p.m. May 16, 2016. The signature requirement at that time was 123,725. The Respondents completed the signature process timely and on April 21, 2016, the Secretary of State notified the Respondents it had received the boxes of pamphlets1 and set the counting process to begin on April 25, 2016. On April 22, 2016, the Secretary of State, pursuant to 34 O.S. Supp. 2015, § 9 (D), submitted the Respondents' proposed ballot title to the Attorney General. On April 29, 2016, the Attorney General, pursuant to 34 O.S. Supp. 2015, § 9 (D) (1) concluded the proposed ballot title did not comply with applicable laws for the following reasons: l. It fails to explain that the one cent sales and use tax contemplated by the measure will be in addition to the state sales and use tax already levied by the Oklahoma Sales and Use Tax Codes. 2. It suggests that allocated funds will, in part, be used to improve college affordability, when the measure indicates that the funds may be used for college affordability or for otherwise improving higher education. That is, funds may be allocated in whole, in part, or not at all for college affordability. 3. It fails to explain that the increase in teacher salaries as funded by Section 3(A) (l) (b), and as requited by Section 4 of the new Article, requires that teacher salaries be raised by at least $5,000 more than the salaries paid in the year prior to adoption. 4. And, finally, it inaccurately states that it prohibits school districts' use of funds for increasing administrative salaries, when the measure is more limited in that it only prohibits an increase in superintendents' salaries and the addition of superintendent positions. The Attorney General also submitted his own preliminary ballot title which reads as follows: This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve public education. To provide revenue for the fund, the state sales and use tax are increased by one cent. It allocates funds for purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, increasing high school graduation rates, and college and career readiness. It also allocates funds for improving higher education, improving career and technology education, and increasing access to voluntary early learning opportunities for low income and at-risk children. It requires that the teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. It requires that monies from the fund not supplant or replace other educational funding. The Article takes effect on the July 1 after its passage. ¶4 On May 10, 2016, the Secretary of State, pursuant to 34 O.S. Supp. 2015, § 8 (H), certified the signature count and votes cast for the state office receiving the highest number of votes at the last general election to this Court.2 On June 1, 2016, this Court determined the signatures on the petition appeared to be numerically sufficient. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 59, ¶2, __P.3d__. It was further ordered that pursuant to 34 O.S. Supp. 2015, § 8 (I), the Secretary of State was to publish notification of the filing of Initiative Petition No. 403, State Question No. 779, and the apparent numerical sufficiency of the signatures. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 59 at ¶3. In addition, the Secretary of State was ordered to publish the Attorney General's rewritten ballot title. Id. The notice by publication also informed the public that any citizen or citizens may file an objection only relating to the signature count made by the Secretary of State or the preliminary ballot title as rewritten by the Attorney General.3 On June 23, 2016, Petitioners filed an Application to Assume Original Jurisdiction with this Court to object to both the gist of the measure and the rewritten ballot title. ANALYSIS I. Post-Circulation Challenge To The Gist Of The Measure. ¶5 Petitioners first challenge the sufficiency of the gist of the measure found in the pamphlets already circulated for signatures. They argue it is appropriate for this Court to review the gist post-circulation. We hold that under current law, a post-circulation challenge to the gist of a measure is untimely. ¶6 Petitioners first cite our recent opinion wherein we found that a pre-circulation challenge to the gist of a measure is appropriate. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶4, n.10, __P.3d__. We noted that although the ballot title review process and challenge must now statutorily come after the circulation period pursuant to 34 O.S. Supp. 2015, § 8, the statute remains silent as to a challenge to the gist of the petition. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51 at ¶4, n.10. However, we determined we need not decide in that opinion whether a post-circulation challenge to the gist of the petition was appropriate. Id. That is the question we are presented with today. ¶7 It first should be noted that in all the Initiative and Referendum statutes (34 O.S. § 1-27) the word "gist" only appears in one place, 34 O.S. 2011, § 3. It only provides that the gist of the measure shall be on the signature sheets which are then attached to copies of the petition for "the securing of signatures." It specifically identifies the signature sheets as being separate from the petition. It refers to the combination of the petition and signature sheets as a "pamphlet" which is what the proponents circulate for signatures. After filing the petition with the Secretary of State pursuant to Title 34 O.S. § 8, citizens are notified they may object to the constitutionality of the petition. However, there is no provision at the pre-circulation stage about filing the gist or a signature sheet with the gist. Nor is there a specific provision anywhere in these statutes for challenging the gist. Title 34 O.S. Supp. 2015, § 8 (B) provides, at the pre-circulation stage, for only a protest concerning "the constitutionality of the petition."4 ¶8 In In re Initiative Petition No. 409, State Question No. 785, we determined even though the statutes were silent concerning a challenge to the gist, at least at the pre-circulation stage, it could be challenged because it remains a necessary part of the pamphlet circulated to potential signatories. 2016 OK 51 at ¶4, n.10. A challenge to the gist has historically involved its sufficiency. Here, Petitioners challenge the sufficiency of the gist. In 2009, the legislature amended 34 O.S. § 8 by adding a new subsection (B) which provides in pertinent part "[n]o objection to the sufficiency shall be considered unless it has been made and filed as herein provided, i.e., "within ten (10) business days after publication" [the original publication by the Secretary of State concerning the filing of the petition] (34 O.S. Supp. 2015, § 8 (B)). 2009 Okla. Sess. Laws c. 318, § 1. Under current law, the sufficiency of the petition and, by our interpretation as mentioned, the gist, is appropriate only within the time period for filing an objection to the petition (34 O.S. Supp. 2015, § 8 (B)). The ten-day period for filing such objection already expired prior to circulation. This matter is at the post-circulation stage. The only objections authorized at this stage are found in 34 O.S. Supp. 2015, § 8 (I). In 2009, the Legislature amended this subsection, which at the time was subsection (H), to restrict the content of post-circulation objections. 2009 Okla. Sess. Laws c. 318, § 1. Following the 2015 amendments, post-circulation objections must now "relate only to the validity or number of the signatures or a challenge to the ballot title." 2015 Okla. Sess. Laws c. 193, § 4. This is further proof that the Legislature intended the sufficiency of the petition and/or gist to be unchallengeable post-circulation. Petitioners argue that a misleading gist would be relevant to the "validity" of the signatures. We do not agree. The validity of the signatures concerns only the genuineness of the signatures and does not concern whether a person signing the signature sheet was misled by the gist thereon. That issue is inherently a sufficiency argument that, at the post-circulation stage, has expired.5 II. Ballot Title Challenge. ¶9 In addition to the gist of the measure, the Petitioners challenge the sufficiency of the rewritten ballot title. The ballot title must reflect the character and purpose of the measure and not be deceptive or misleading. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶25, 879 P.2d 810. The test is whether it is written so that voters are afforded an opportunity to fairly express their will and whether it apprises voters with substantial accuracy what they are asked to approve. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97 at ¶25. The ballot title shall also not reflect partiality in its composition or contain any argument for or against the measure. Title 34 O.S. Supp. 2015, § 9 (B) (4). After the 2015 amendments to 34 O.S. § 8, a challenge to the ballot title is now only appropriate post-circulation. 2015 Okla. Sess. Laws c. 193, § 4. As mentioned, circulation of the petition has already occurred. The Petitioners have therefore properly presented their challenge to the rewritten ballot title. ¶10 The Petitioners assert five errors in the rewritten ballot title: 1) the ballot title ignores the Board of Equalization's new power to prevent the Legislature from appropriating funds, 2) the ballot title's statement that sales and use tax will be increased by "one cent" is misleading and is inconsistent with the text of the Petition, 3) the ballot title fails to explain the effect of the proposition by omitting how the tax increase will be apportioned among governmental entities, 4) the ballot title's reference to "improving" public education expresses partiality and is an argument for the measure, and 5) the ballot title is misleading because it fails to explain the audit requirement and salary restrictions for revenue generated by the tax (they base this argument on the fact the proposed Article does not provide auditing requirements for higher education, career and technology education and the State Department of Education and the ballot title does not reflect this fact). The Petitioners propose the following amendments to the rewritten ballot title (underlined text represents added language and strike-through text represents deletions): This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve increase funding for public education. To provide revenue for the fund, the state It increases sales and use tax taxes are increased by one cent percent to provide revenue for the fund. It allocates funds for purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, increasing high school graduation rates, and college and career readiness. It also allocates funds for improving higher education, improving career and technology education, and increasing access to voluntary early learning opportunities for low income and at-risk children. The revenue shall be allocated: 69.50% for common school districts, 19.25% for the institutions under the authority of the Oklahoma State Regents for Higher Education, 3.25% for the Oklahoma Department of Career and Technology Education, and 8% for the State Department of Education. It requires that the teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. School districts' use of the revenue will be audited annually. The Article does not provide for an audit requirement or salary restriction for the other state institutions which will receive revenue from the fund. It The Article requires that monies from the fund not supplant or replace other educational funding. If the Board of Equalization determines funding has been replaced, the Legislature may not make any appropriations until the amount of replaced funding is returned to the fund. The Article takes effect on the July 1 after its passage. ¶11 We agree that the ballot title is misleading if it does not mention the Board of Equalization's role in limiting appropriations. In addition, the ballot title should refrain from partiality and should clarify the amount of the sales and use tax as well as its allocation. We do not agree with Petitioners that the ballot title must reflect items that are not provided in the proposed Article. The Petitioners' amendments to the rewritten ballot title, however, exceed the statutory maximum number of words. Title 34 O.S. Supp. 2015, § 9 (B) (1) provides that a ballot title shall not exceed two hundred (200) words. The Petitioners' proposed amended ballot title is two hundred and fourteen (214) words. After considering the briefs and the proposed ballot titles we hereby, pursuant to the authority vested in this Court by 34 O.S. Supp. 2015, § 10 (A)6 , correct and amend the ballot title to read as follows: This measure adds a new Article to the Oklahoma Constitution. The article creates a limited purpose fund to increase funding for public education. It increases State sales and use taxes by one cent per dollar to provide revenue for the fund. The revenue to be used for public education shall be allocated: 69.50% for common school districts, 19.25% for the institutions under the authority of the Oklahoma State Regents for Higher Education, 3.25% for the Oklahoma Department of Career and Technology Education, and 8% for the State Department of Education. It requires teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. It requires that monies from the fund not supplant or replace other educational funding. If the Oklahoma Board of Equalization determines funding has been replaced, the Legislature may not make any appropriations until the amount of replaced funding is returned to the fund. The article takes effect on July 1 after its passage. CONCLUSION ¶12 For the foregoing reasons, we grant Petitioners' Application to Assume Original Jurisdiction, deny relief requested concerning the gist of the measure, find the rewritten ballot title deficient, and rewrite the ballot title pursuant to our authority in 34 O.S. Supp. 2015, § 10. Due to the exigencies related to the element of time affecting the situation involved herein, the usual 20-day period allowed by Okla.Sup.Ct.R. 1.13, 12 O.S. 2011, ch. 15, app.1, for the filing of petitions for rehearing generally, is, as applied to this case, reduced to 5 business days from the date of this opinion. APPLICATION TO ASSUME ORIGINAL JURISDICTION IS GRANTED; CHALLENGE OF THE GIST IS UNTIMELY; BALLOT TITLE DECLARED DEFICIENT AND IS HEREBY AMENDED BY THIS COURT PURSUANT TO TITLE 34 O.S. SUPP. 2015, § 10. ¶13 REIF, C.J., COMBS, V.C.J., KAUGER, WINCHESTER, and TAYLOR (by separate writing), JJ., concur. ¶14 EDMONDSON (by separate writing) and GURICH, JJ., MITCHELL, S.J. and THORNBRUGH, S.J., concur in part and dissent in part. ¶15 WATT and COLBERT, JJ., disqualified. FOOTNOTES 1 The "pamphlet" is a combination of the (initiative) petition and the attached sheets for signature. Title 34 O.S. 2011, § 3. The signature sheets are the only place where the gist of the measure is found. Id. In fact, 34 O.S. 2011, § 3 is the only section in the Initiative and Referendum statutes (34 O.S. §§ 1-27) that mentions the word "gist." 2 On May 27, 2016, the Secretary of State filed a corrected certification with this Court. 3 Title 34 O.S. Supp. 2015, § 8 (I) provides in pertinent part "[a]ny such objection must be filed within ten (10) business days after publication and must relate only to the validity or number of the signatures or a challenge to the ballot title." 4 Curiously, subsections C and D of 34 O.S. Supp. 2015, § 8, which provide for this Court's review of the pre-circulation objection, never again mention constitutionality. Subsection C requires this Court to fix a day at which time we will hear testimony and arguments for and against the sufficiency (not constitutionality) of the petition (not the gist found on the signature sheets). Subsection D then provides, after such hearing, this Court shall decide whether the petition is in the form required by the statutes. 5 Petitioners' frustration is understandable. They are correct in asserting the first publication of notice did not inform anyone about challenging the gist of the measure. Title 34 O.S. § 8 never mentions when a gist may be challenged nor requires any notice for such a challenge. The problem is compounded because 34 O.S. § 8 only requires proponents of an initiative petition to initially file a petition with the Secretary of State prior to circulation. It does not require any signature sheets containing the gist to be filed at the pre-circulation stage. A clearer process would be to require the proponents to also initially file a copy of the gist which will appear on the signature sheets and for the Secretary of State to publish that gist with the initial notice as provided for in 34 O.S. § 8 (B). In addition, provisions should be made for notice allowing objections to the gist and inclusion of the gist in our review of the initial objections. Subsections B, C and D should adequately reflect that an objection may be made and review may be had as to the constitutionality and/or sufficiency of the petition and the gist. Subsection B only indicates a person may initially challenge the constitutionality of the petition yet, as mentioned, strangely subsections C and D only refer to sufficiency and proper form, not constitutionality of the petition. 6 Title 34 O.S. Supp. 2015, § 10 (A) provides: A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) business days after the same is published by the Secretary of State as provided for in subsection I of Section 8 of this title, appeal to the Supreme Court by petition in which shall be offered a substitute ballot title for the one from which the appeal is taken. Upon the hearing of such appeal, the court may correct or amend the ballot title before the court, or accept the substitute suggested, or may draft a new one which will conform to the provisions of Section 9 of this title. EDMONDSON, J., Concur in Part and Dissent in Part, joined by GURICH, J., and MITCHELL, S.J., and THORNBRUGH, S.J. ¶1 I concur with the Court's treatment of the ballot title but disagree how the challenge to the gist should be adjudicated. I write to explain why the Court is required to address a challenge to the gist of the petition. I conclude that the gist did not create a fraudulent initiative petition process and the matter should proceed with a corrected ballot title. ¶2 Prior to 2015, the statutory procedure authorized a person to file objections to proposed law prior to circulation of an initiative petition by filing an objection to the law's ballot title.1 An objection to a proposed law based upon its constitutionality could be made after signatures had been collected.2 The proper time to challenge the gist was not specified by statute. ¶3 In 2015 the Legislature specified that a protest raising a constitutional issue may be made and heard by the Court prior to collection of signatures.3 This new legislation also states that an objection made after collection of the signatures "must relate only to validity or number of the signatures or a challenge to the ballot title."4 Again, this legislation is silent on the express issue of when a challenge is made to the gist of an initiative petition. ¶4 This Court has reviewed a challenge to a gist made in protest proceedings after collection of signatures. For example, we have performed this review in cases from 1990 (three times), 1991 (twice), 1994, 1995, 1996, and 2007.5 During this period the Court also explained when the Legislature does not amend a statute after the Court's construction of that statute then such amounts to "legislative acquiescence to that construction."6 This principle has remain unchanged and is a current method for understanding legislative intent.7 If no change had been made in the statutory protest procedures, then the legislative silence would be legislative acquiescence to a procedure allowing a challenge to a gist in proceedings after collection of the signatures. ¶5 The issue becomes: in 2015 when the Legislature stated that an objection made after collection of the signatures "must relate only to validity or number of the signatures or a challenge to the ballot title," was this language a break in legislative silence and the Legislature intended to include challenges made to the gist of an initiative petition as untimely challenges when made after collection of the signatures? The 2015 amendment expressly discusses challenges based upon constitutionality of the proposal, ballot title, and sufficiency of the signatures. The 2015 amendment does not mention challenges to a gist. ¶6 Generally, when determining legislative intent we have followed the rule that the mention of one thing in a statute implies exclusion of something else, "expressio unius est exclusio alterius," but application of this rule is not allowed to override a contrary legislative intent8 or to create an unconstitutional construction of a statute.9 The purpose of the gist "is to prevent fraud, deceit or corruption in the initiative process."10 Our opinions entertaining challenges to a gist recognize a legally cognizable right by a challenger to judicially defeat an initiative petition based upon a legally invalid gist, because noncompliance with the statutory provision for the gist is fatal to an initiative petition.11 We have explained "the Legislature has deemed the gist a necessary part of the pamphlet and we are not at liberty to ignore that requirement, since we must presume that the Legislature 'expressed its intent' in creating the gist requirement and 'that it intended what it so expressed.'"12 Judicial protest challenges to the gist is the method by which this Court does not ignore the requirements set by the Legislature. ¶7 In the previous proceeding involving this initiative petition and these parties, this Court declined to determine whether the gist was proper, although three members of this Court examined the gist in a dissenting opinion in proceeding 2016 OK 1. The Court's opinion takes a statute which is poorly worded on the issue of a challenge to the gist and raises it as a bar to adjudicating the legal propriety of the gist. Twenty years ago this Court explained in the context of a jurisdictional statute that a poorly written statute would not be implemented by this Court in a manner which was a procedural trap for the unwary.13 The integrity of the judicial process is protected in the present proceeding by affording a judicial remedy to parties seeking to challenge the gist who are seeking to use the remedy recognized by this Court for the previous twenty years. The principle of due process applies to judicial proceedings as well as quasi-judicial proceedings and legislative enactments.14 Construing the implication of newly amended statutory language as requiring challenges to the gist to occur prior to collection of signatures requires making the Court's ruling on this point as prospective as to the parties before the Court.15 While providing a judicial enforcement mechanism of a "political right" may not be required by due process,16 this Court has not treated a challenge to a gist as enforcement of a political right, but a legal right possessed by an Oklahoma voter to have fraudulent initiative petitions be judicially disapproved. Public policy favors the integrity and purity of a ballot free from fraud.17 I would thus construe the legislative intent behind the new language in the 2015 amendment as not changing this Court's recognition of a judicial remedy for voters who want to challenge a gist in an initiative petition. ¶8 This Court may, consistent with due process and in the absence of an express statutory procedure, create a legal procedure for the judicial enforcement of a legal right18 by requiring a challenge to a gist to be made prior to circulation of the petition and at the time a challenge to constitutionality is made. But application of such a rule must be predicated upon a proponent filing the official gist with the Secretary of State and that gist actually being used for the circulation. If a gist is not filed in a manner which allows a timely pre-circulation challenge, or a different gist is used during circulation, then a post-circulation judicial challenge to a gist must be allowed. But this newly crafted judicial rule of procedure should not be used against these parties. ¶9 Even if the Court determined that the 2015 amendment changed the time to file a challenge to a gist, that statute and this Court's previous order cannot, consistent with due process and fundamental fairness, be used to prevent this Court from providing to these parties a judicial remedy consistent with the long-established practice of this Court. ¶10 The challenge to the gist must be examined, and upon that examination I find nothing to invalidate the petition. In 1995, we explained: The gist of a proposition, which is required by law to appear at the top of each signature page, need only contain "a simple statement of the gist of the proposition."19 A gist "need not satisfy the more extensive requirements for ballot titles."20 We explained: "The gist of a proposition must be short. As it must appear at the beginning of every page of the petition, it can contain no more than a shorthand explanation of a proposition's terms."21 As we have previously explained: "The sole question presented for the court's determination is whether the absence of a more detailed gist statement . . . perpetrates a fraud on the signatories."22 The issue is not whether a more complete or more accurate gist may be crafted, but whether a gist's inaccuracies amount to fraud or deceit: "We will approve the text of a challenged gist if it is free from the taint of misleading terms or deceitful language."23 ¶11 I agree with the petitioners that the gist in this case could be better, but I also agree with respondents that possible practical effects of the proposal are not required to be included in a gist.24 I find nothing fraudulent in the gist that would mislead voters when compared to the new ballot title as written by the Court. ¶12 In conclusion, I would address the challenge to the gist, deny that challenge, and rewrite the ballot title as the Court has done. FOOTNOTES 1 In re Initiative Petition No. 397, 2014 OK 23, 326 P.3d 496. 2 In re Initiative Petition No. 382, 2006 OK 45, 142 P.3d 400. 3 Laws 2015, c. 193, § 4, (B), (E), emerg. eff. April 28, 2015, amending 34 O.S. 2011 § 8. 4 Laws 2015, c. 193, § 4, (I), emerg. eff. April 28, 2015, amending 34 O.S. 2011 § 8. 5 In re Initiative Petition No. 341, 1990 OK 53, 796 P.2d 267, 268, 274; In re Initiative Petition No. 344, 1990 OK 75, 797 P.2d 326, 329; In re Initiative Petition No. 342, 1990 OK 76, 797 P.2d 331, 333; In re Initiative Petition No. 347, 1991 OK 55, 813 P.2d 1019, 1028-1029; In re Initiative Petition No. 348, 1991 OK 10, 820 P.2d 772, 779 (public docket for Okla. Sup. Ct. No. 76, 277 shows the filing of 64 boxes of signatures with the Court prior to its review); In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d 810, 817 (public docket for Okla. Sup. Ct. No. 82,648 shows tabulation of signatures prior to Court's adjudication); In re Initiative Petition No. 362, 1995 OK 77, 899 P.2d 1145 (public docket for Okla. Sup. Ct. No. 84,769 shows tabulation of signatures prior to Court's adjudication); and In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558 (public docket for Okla. Sup. Ct. No. 86,375 shows tabulation of signatures prior to Court's adjudication); In re Initiative Petition No. 384, 2007 OK 48, ¶¶ 4-13, 164 P.3d 125. 6 R. R. Tway, Inc. v. Oklahoma Tax Com'n, 1995 OK 129, 910 P.2d 972, 976. 7 In re Estate of Dicksion, 2011 OK 96, ¶ 5, 286 P.3d 283, 294, quoting Owings v. Pool Well Service, 1992 OK 159, ¶ 8, n. 10, 843 P.2d 380, 382 ("Failure to amend a statute after its judicial construction constitutes legislative acquiescence to that construction. . . 'Legislative silence, when it has the authority to speak may be considered as an understanding of legislative intent.'"). 8 In re M.S., 2010 OK 46, ¶ 12, 237 P.3d 161, 165, citing Spiers v. Magnolia Petroleum Co., 1951 OK 276, 244 P.2d 852, 856. 9 Oklahoma Gas & Electric Co. v. Oklahoma Corp. Com'n, 1975 OK 15, 543 P.2d 546, 551 (The Court presumes the Legislature has no legislative intent to enact unconstitutional statutes.); TXO Production Corp. v. Oklahoma Corp. Com'n, 1992 OK 39, 829 P.2d 964, 968-969 (Legislative intent is upheld by this Court when it adopts a construction of a statute that is consistent with the presumed constitutionality as intended by the Legislature.). 10 In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558, 567. 11 In re Initiative Petition No. 342, 1990 OK 76, 797 P.2d 331, 333. 12 In re Initiative Petition No. 384, 2007 OK 48, ¶13, 164 P.3d 125, quoting TXO Prod. Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969 and citing Neer v. State ex rel. Okla. Tax Comm'n, 1999 OK 41, ¶ 15, 982 P.2d 1071, 1078. 13 Bushert v. Hughes, 1996 OK 21, 912 P.2d 2334, 335. 14 Larry Jones Intern. Ministries, Inc. v. Means, 1997 OK 125, ¶ 9, 946 P.2d 669, 671 ("The constitutional guaranty of due process of law applies to administrative as well as judicial proceedings where such proceedings are quasi-judicial in nature."); City of Edmond v. Wakefield, 1975 OK 96, 537 P.2d 1211, 1213 ("state statutes which attempt to take away vested property interests . . . are unconstitutional as violations of due process."). 15 Bushert v. Hughes, 1996 OK 21, 912 P.2d at 335, citing of Poafpybitty v. Skelly Oil Company, 1964 OK 162, 394 P.2d 515, 520. 16 See, e.g., Toliver v. Thompson, 2000 OK 98, 17 P.3d 464, ("The judiciary in this State does not create equitable remedies for challenging elections in District Courts for claims based solely upon political rights."); Macy v. Oklahoma City School District No. 89, 1998 OK 58, 961 P.2d 804, 807-808 (explaining that private individuals do not possess a legally cognizable interest to challenge the creation of a school district in a quo warranto proceeding). 17 Turner v. State Election Bd., 1946 OK 169, 169 P.2d 285, 287 (Riley, J., concurring specially) ("The public policy in Oklahoma, as evidenced by constitutional provision and statute, amongst other things, is one to preserve the purity of the ballot and to prevent and punish fraud in elections."). 18 The Oklahoma Constitution guarantees that all courts "shall be open to every person, and a speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Okla. Const. art. 2, § 6. The Supreme Court does not create election-jurisprudence remedies unknown at common law. Ethics Commission v. Keating, 1998 OK 36, n. 2, 958 P.2d 1250. However, the Legislature's long silence and acquiescence to the Court's construction of both the statutory requirement for a gist and a person's right to challenge a gist show a statutory right enforced by a remedy in this Court. See In re Estate of Dicksion, supra, at n. 7, and R. R. Tway, Inc. v. Oklahoma Tax Com'n, supra, at note 6, and the discussion of legislative acquiescence to the Court's construction of statutes. 19 In re Initiative Petition No. 362, 1995 OK 77, 899 P.2d 1145, 1150. 20 In re Initiative Petition No. 362, 1995 OK 77, 899 P.2d at 1150. 21 In re Initiative Petition No. 362, 1995 OK 77, 899 P.2d at 1150. 22 In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558, 567. 23 In re Initiative Petition No. 384, 2007 OK 48, ¶ 8, 164 P.3d 125. 24 In re Initiative Petition No. 384, 2007 OK 48, ¶ 10, 164 P.3d 125 Taylor, J., with whom Kauger and Winchester, JJ., join, concurring: ¶1 The crucial purpose of the gist and the ballot title is to inform citizens. The information in the gist and the ballot title must be correct, clear, and direct and adequately explain the proposed changes. See 34 O.S.2011, § 3; 34 O.S.Supp. 2015, § 9; In re Initiative Petition No. 397, State Question 767, 2014 OK 23, ¶ 50, 326 P.3d 496, 515; In re Initiative Petition No. 384, State Question 731, 2007 OK 48, ¶ 7, 164 P.3d 125, 130. Today's majority opinion is an important step in providing correct information to the voters. For that reason, I concur. ¶2 In January, I dissented, joined by Justices Kauger and Winchester, to this Court's opinion finding the petition constitutional and pointed to very serious flaws in the gist and ballot title that were originally proposed. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, 367 P.3d 472 (Taylor, J., dissenting). I stand by every word of my dissent. Interestingly, the Attorney General also recognized several serious problems with the ballot title and, by inference, problems with the gist. He directed revisions in the ballot title, but it was too late to correct the misinformation caused by the flawed gist, and the Attorney General did not go far enough. ¶3 I concur with this majority opinion. It recognizes the many flaws with the ballot title, and, by relation, the gist, although it is too late to repair the fatally flawed gist, and properly re-writes the ballot title to a correct legal standard. This opinion insures the right of citizens to be properly informed. ¶4 In the previous dissent, we pointed out that the power granted to the State Board of Equalization was missing from the proposed gist and ballot title. That crucial information should have been there from the start, but it was not. That information is now included in the ballot title and should have been included in the gist. ¶5 I strongly concur with the majority opinion that this proposed one cent per dollar sales tax increase, which is actually a 22% increase in the state sales tax, must be presented in a clear and concise format. All previous descriptions of this proposed state sales tax increase have been very ambiguous. This proposed tax increase is made clear by the re-written ballot title, but too late to inform those who signed the initiative petition. ¶6 It is important that the majority opinion details for the voter the amounts of this proposed tax increase that will be given to each area of education. That is again critical information given to the voter, but not to the signers of the petition. ¶7 The concerns in our previous dissent have been acted upon. The dissent's initial concerns about the information contained, and not contained, in the gist have been sustained by the Attorney General and now by this majority opinion of our Court. The gist was at the top of each signature sheet that was circulated and signed by thousands of citizens and should have contained the revised language adopted by the majority opinion. The information provided by the gist has been inferentially found by this majority opinion to be flawed. If the information was important enough to be required in the ballot title, it certainly was important enough to have been in the information provided to those citizens who were asked to sign the petition. ¶8 This Court's mission and mandate is to insure that voters are timely, fairly, and fully informed before they undertake the solemn duty of consideration of amendments to our Constitution. For information in a petition's gist to be timely and fair, I would require that the gist be challenged within the same ten day time frame for challenging the constitutionality of a petition. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, 367 P.3d 472 (Taylor, J., dissenting); In re Initiative Petition No. 403, State Question No. 779 2016 OK 59, ___ P.3d ___ (Taylor, J., dissenting) (not yet released for publication); see In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ___ P.3d ___ (not yet released for publication). Importantly, this Court's redraft of the ballot title finally presents a fair statement of the proposition's effect. Unfortunately, it is too late to properly inform the initiative petition's signatories, but, with this Court's redraft of the ballot title, voters will have the opportunity to cast an informed vote.

ac44378e-bae6-4a9f-89a1-78783fb98122

Leritz v. Farmers Insurance Company, Inc.

oklahoma

Oklahoma Supreme Court

LERITZ v. FARMERS INSURANCE COMPANY, INC.2016 OK 79Case Number: 110013Decided: 06/28/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Wayne Robert Leritz, Appellant,v.Farmers Insurance Company, Inc., Appellee,andLarry Allen Yates, Defendant. CERTIORARI TO THE COURT OF CIVIL APPEALSDivision III ¶0 A Kansas resident was injured when his motorcycle collided with a car in Oklahoma. He sought to stack uninsured motorist coverage based on his three Kansas policies. The trial court, Honorable Robert C. Haney, District Court, Delaware County, granted the insurer's motion for summary judgment applying Kansas law, which prohibits stacking, to resolve a perceived conflict of laws. The Court of Civil Appeals affirmed. CERTIORARI PREVIOUSLY GRANTED;OPINION OF COURT OF CIVIL APPEALS VACATED;JUDGMENT OF DISTRICT COURT REVERSED;CAUSE REMANDED. Rex Travis, Paul D. Kouri, Oklahoma City, Oklahoma, for Appellant.J. Anthony Miller, Tulsa, Oklahoma; A. Mark Smiling, Shena E. Burgess, SMILING LAW FIRM, Tulsa, Oklahoma, for Appellee. COLBERT, J. FACTS AND PROCEDURAL HISTORY ¶1 Appellant, Robert Wayne Leritz (Plaintiff) is a Kansas resident whose motorcycle and two other vehicles were garaged in Kansas under an insurance policy issued by Appellee, Farmers Insurance Company (Farmers) in Kansas. Plaintiff was injured in a motorcycle accident in Oklahoma on July 7, 2008, when Defendant, Larry Allen Yates, made a left hand turn and collided with Plaintiff causing serious bodily injuries. Plaintiff brought this action alleging that he had incurred medical expenses and suffered damages exceeding Yates's liability coverage. There was a question as to whether he could stack his uninsured motorist (UM) coverage based on his ownership of policies on each of his three vehicles. Oklahoma allowed the practice,1 until the Oklahoma Legislature amended the UM provision, section 3636 of title 36, in 2014 to provide: "Policies issued, renewed or reinstated after November 1, 2014, shall not be subject to stacking or aggregation of limits unless expressly provided for by an insurance carrier." 2014 Okla Sess. Laws ch. 307. Kansas does not allow stacking. The trial court granted summary judgment to the insurer and the Court of Civil Appeals affirmed, applying the insurer's proposed solution to a perceived conflict of laws issue. However, there is no conflict of laws issue on these facts because the policy specifies which law will apply to an issue of stacking of policies. Giving the policy provisions effect makes a choice of law analysis unnecessary.2 STANDARD OF REVIEW ¶2 An order that grants summary judgment, in whole or in part, disposes solely of law questions. Brown v. Nicholson, 1997 OK 32, ¶ 5 n.1, 935 P.2d 319, 321 n.1. It is reviewable by a de novo standard. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. ANALYSIS ¶3 By its terms, the policy "applies only to accidents, occurrences, and losses during the policy period shown in the Declarations which occur within the United States, its territories or possessions, or Canada, or while the motorcycle is being shipped between their ports." The policy further contemplates out of state coverage by providing: An insured person may become subject to the financial responsibility law, compulsory insurance law or similar law of another state or in Canada. This can happen because of the ownership, maintenance or use of your insured motorcycle when you travel outside of your home state. We will interpret this policy to provide any broader coverage required by those laws, except to the extent that other liability insurance applies. No person may collect more than once for the same elements of loss. (Emphasis added). Most importantly, the policy addresses specifically the issue of stacking of UM coverage and links it to the state law of the state in which the accident occurred by providing: "Subject to the law of the state of occurrence, we will pay no more than these maximums regardless of the number of vehicles insured, insured persons, claims, claimants, policies, or vehicles involved in the occurrence." (Emphasis added). Thus, the policy limits stacking, but only if the law of the state of occurrence limits stacking.3 Oklahoma law did not limit stacking.4 Therefore, under the policy's choice to defer to the law of the state of occurrence regarding stacking, the policy holder was entitled to stack UM coverage. ¶4 The parties and the Court of Civil Appeals became distracted from the policy language by a dispute concerning whether a conflict of law determination should be made according to Oklahoma's conflict of law statute concerning contracts, this Court's case law, or the UM statute found at section 3636 of title 36. There actually is no dispute because the policy provides its own choice of law provision concerning the stacking of UM coverage. Unfortunately, the policy provisions have yet to be given effect by the lower courts. This matter is remanded to the trial court for application of the policy provisions. CERTIORARI PREVIOUSLY GRANTED;OPINION OF COURT OF CIVIL APPEALS VACATED;JUDGMENT OF DISTRICT COURT REVERSED;CAUSE REMANDED. CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert, J.J. DISSENT: Winchester, Taylor, Gurich (by separate writing) J.J. FOOTNOTES 1 The policy in this matter has a renewal period of July 6, 2008, until January 29, 2009. Therefore, the statutory prohibition on the stacking of UM coverage does not apply to this dispute. 2 Generally,"[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied . . .." Restatement (Second) Conflict of Laws, § 187 (1971); Fossil Creek Energy Corp. v. Cook"s Oilfeild Servs., 2010 OK CIV APP 123, ¶ 11 n.5, 242 P.3d 537, 541 n.5. See also, Telex Corp. v. Hamilton, 1978 OK 32, ¶¶ 7-8, 576 P.2d 767, 768 (implying that, even if the contract had not been entered into and performed in Oklahoma, Oklahoma law would have been applied because the contract so provided); 43 Am. Jur. 2d Insurance § 337 ("Where it is provided by the contract of insurance itself that it shall be construed in accordance with the laws of a designated place and the stipulation is valid, such stipulation as a general rule controls the construction and effect of the contract . . .."). 3 The courts will read the provisions of a contract "to give effect to the intention of the parties as ascertained from the four corners of the contract . . .." Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶ 27, 160 P.3d 936, 946. See also Okla. Stat. tit. 15, § 155 (2011)("When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this article."). 4 This Court adopted the stacking rule in 1976 in Keel v. MFA Ins. Co., 1976 OK 86, ¶ 13, 553 P.2d 153, 156 ("We, therefore, hold where an insured has been issued multiple automobile policies containing uninsured motorist coverage for which a premium has been paid, the extent of the coverage is the combined total amount of such policies."). GURICH, J., with whom WINCHESTER and TAYLOR, JJ., join dissenting: ¶1 I must respectfully dissent to the majority opinion in the above-styled matter. The present case concerns only three Kansas insurance policies--no Oklahoma policy is involved. Today's opinion effectively reverses established precedent without expressly doing so; namely our prior decision in Bernal v. Charter County Mutual Ins. Co., 2009 OK 28, 209 P.3d 309. Bernal v. Charter County Mutual Ins. Co., 2009 OK 28 ¶2 The majority decision is in direct conflict with our holding in Bernal v. Charter County Mutual Ins. Co., where we determined Oklahoma's UM statute could not be applied to an insurance policy with zero connection to this state: The Oklahoma legislature has directed a specific choice-of-law provision to govern under the UM statute. By its own terms, § 3636(A) applies solely to a policy 'issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state . . . .' Whenever the legislature commands us to apply the law of another state, we must abide by its directive. The parties do not dispute the automobile in this single-vehicle accident was registered and principally garaged in Shallowater, Texas. That state's law must hence govern the terms of liability under that state's insurance policy. Id. ¶ 14, 209 P.3d at 316. In rejecting the plaintiff's claim for UM benefits by application of Oklahoma law, we further noted: That Texas law permits nonpayment of UM benefits under the terms of the Charter policy does not implicate any insurance benefits under an existing Oklahoma policy. Neither UM benefits contracted and paid for pursuant to Oklahoma law are implicated here nor were any benefits due under our law either denied or diminished. Id. ¶ 17, 209 P.3d at 317 (emphasis added). ¶3 Here too, there are no UM benefits contracted or paid for pursuant to Oklahoma law. Additionally, there are no Oklahoma insurance benefits diminished in any way through application of Kansas law. Unless the majority of this Court chooses to overrule Bernal, we are bound to follow the decision by reason of stare decisis. It should be noted that Leritz conceded in a "Suggestion the Court Should Rule," filed in this Court on October 17, 2013, and directed to COCA, "[p]laintiff/[a]ppellant states in the briefs below that, under present Oklahoma law, the Motion for Summary Judgment appealed was properly sustained but seeks to change the law." ¶4 Oklahoma has no connection with the present dispute other than being the location of Leritz' accident and the residence of the uninsured tortfeasor. Leritz has acknowledged throughout proceedings that Oklahoma jurisprudence (i.e., Bernal) requires this case to be decided in accordance with Kansas law. Unless Oklahoma UM benefits are involved, there is simply no reason to apply our UM law to settle this disagreement. ¶5 It is undisputed that Kansas law precludes the stacking of UM/UIM policy benefits. Under Kansas law, Leritz is entitled to payment of $100,000 UM due under one policy insuring his motorcycle. Consequently, COCA reached the correct result in this case.

7ef720fe-99e0-4585-82a7-db13e695bf53

Save the Illinois River, Inc. v. Oklahoma ex rel. Oklahoma Election Board

oklahoma

Oklahoma Supreme Court

SAVE THE ILLINOIS RIVER, INC. v. STATE ex. rel. OKLA. STATE ELECTION BD.2016 OK 86Case Number: 115164Decided: 08/08/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SAVE THE ILLINOIS RIVER, INC., THE HON. REPRESENTATIVE JASON DUNNINGTON, EDWARD BROCKSMITH, and JOHN LEONARD, Plaintiffs/Appellants, v. THE STATE OF OKLAHOMA ex. rel. THE OKLAHOMA STATE ELECTION BOARD, STEVE CURRY, in his capacity as Chairman of the State Election Board, TOM MONTGOMERY, in his capacity as Vice Chairman of the State Election Board, PAUL ZIRIAX, in his capacities as Secretary AND Chief Administrative Officer of the State Election Board, DR. TIM MAULDIN, in his capacity as a Member of the State Election Board, and THE STATE OF OKLAHOMA ex. rel. SCOTT PRUITT, Attorney General of the State of Oklahoma, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE PATRICIA G. PARRISH, PRESIDING ¶0 Oklahoma Legislature passed a measure sending Joint Resolution No. 1012 to the Secretary of State for rejection or approval to amend the Oklahoma Constitution by adding a new section 38 to Article II, prohibiting the Legislature from passing any law "which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest." Plaintiffs filed a petition in the district court, urging that the measure was facially unconstitutional. Defendants filed a motion to dismiss, submitting that the challenge was untimely. The district court granted the motion to dismiss finding the challenge was timely and was not facially unconstitutional. Plaintiffs appealed. This Court retained the appeal. AFFIRMED; REHEARING TIME REDUCED. Heather L. Hintz, Melvin R. McVay, Jr., and Catherine L. Campbell, Phillips Murrah P.C.; and Rabindranath Ramana, Calvert Law Firm, Oklahoma City, OK, for the Appellants. Cara M. Rodriguez and Mithun S. Mansinghani, Office of the Oklahoma Attorney General, Oklahoma City, OK, for the Appellants. Taylor, J. ¶1 On April 21, 2015, and April 29, 2015, the Oklahoma Senate and the Oklahoma House of Representatives, respectively, passed House Joint Resolution Number 1012, directing the Oklahoma Secretary of State to refer a proposed constitutional amendment to a vote of the people. The proposed amendment would add a new section to Article II, as Section 38. 2015 Okla. Sess. Laws 1598-99. The resolution was filed with the Oklahoma Secretary of State on April 30, 2015. Id. The resolution was designated Legislative Referendum No. 368 and State Question No. 777 (State Question 777). ¶2 The proposed amendment provides: Section 38. To protect agriculture as a vital sector of Oklahoma's economy, which provides food, energy, health benefits, and security and is the foundation and stabilizing force of Oklahoma's economy, the rights of citizens and lawful residents of Oklahoma to engage in farming and ranching practices shall be forever guaranteed in this state. The Legislature shall pass no law which abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest. Nothing in this section shall be construed to modify any provision of common law or statutes relating to trespass, eminent domain, dominance of mineral interests, easements, rights of way or any other property rights. Nothing in this section shall be construed to modify or affect any statute or ordinance enacted by the Legislature or any political subdivision prior to December 31, 2014. ¶3 On March 1, 2016, Plaintiffs filed suit in the district court seeking to have the proposed amendment declared unconstitutional and seeking an injunction prohibiting the proposed amendment from being placed on the ballot. Plaintiffs did not protest the ballot title. Defendants filed a motion to dismiss urging that there is no authority for a pre-election challenge to a legislative referendum; and, if such a cause of action exists, Plaintiffs' protest was untimely. Plaintiffs counter that a pre-election challenge to a legislative referendum is proper and that their challenge is timely. ¶4 The district court held a hearing on the motion to dismiss. The district court found that the challenge was timely and, by doing so, implicitly found that a pre-election challenge was proper. The district court denied the parties the opportunity to brief the substantive constitutional issues and denied the parties any opportunity to be heard on the merits; and, then, the district court summarily and orally ruled on the merits that the proposed amendment was not facially unconstitutional and dismissed Plaintiffs' petition. Plaintiffs appealed. This Court retained the matter for disposition. ¶5 The parties dispute the propriety of pre-election review of legislatively proposed constitutional amendments. One way to amend Oklahoma's Constitution is through legislative referendum, by a resolution originated and adopted by the Legislature and passed by the voters. Okla. Const. art. XXIV, § 1. "We cannot undervalue the importance of the constitutional right, under the Oklahoma Constitution, to initiative and referendum." In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 19, 838 P.2d 1, 8. For a legal challenge to a legislatively proposed constitutional amendment, both parties rely on the concurring opinions in In re Legislative Referendum No. 334, State Question 711, 2004 OK 75, 107 P.3d 556. In re Legislative Referendum No. 334 addressed an application for this Court to assume original jurisdiction and issue a writ of mandamus. This Court summarily declined to assume jurisdiction. This Court's order declining to assume jurisdiction is not a decision on the merits or on any issue in the case, is not the law of the case, is not res judicata, and has no precedential value. Robinson v. State of Okla. ex rel. Okla. State Bd. of Medical Licensure and Supervision, 1996 OK 145, ¶ 7, 926 P.2d 1390, 1392. ¶6 This Court has yet to decide the propriety of a pre-election constitutional challenge to a legislatively proposed constitutional amendment. In 1910, this Court decided Threadgill v. Cross, 1910 OK 165, 109 P. 558. Based on Article IV, Section 1 of the Oklahoma Constitution, this Court abstained from injecting itself into a pre-election controversy as to the constitutionality of an initiative petition. Id. ¶¶ 17-23, 109 P. at 561-563. Article IV, Section 1 provides for three governmental departments - the Legislative, Executive, and Judicial - which are "separate and distinct." Section 1 prohibits one department from exercising "the powers properly belonging to either of the others." To decide the validity of legislation before it is passed on by the Governor or the voters, is for a court to inject itself into the legislative process. ¶7 This Court modified the Threadgill rule for citizen-initiated petitions and referendum beginning in 1975. In re Supreme Court Adjudication of Initiative Petitions in Norman, Okla. Numbered 74-1 and 74-2, 1975 OK 36, ¶ 19, 534 P.2d 3, 9 (Norman Petitions). In Norman Petitions, this Court determined that "[i]t may consider the constitutionality of matters to be to considered under the initiative and referendum process as to procedure form and subject matter, when raised, and if in this court['s] opinion such a determination could prevent a costly and unnecessary election." Id. This remains the rule for citizen-initiated petitions. In 2009, the Oklahoma Legislature recognized this Court's jurisprudence regarding pre-election constitutional challenges to citizen-initiatived petitions and referendums by placing a ten-day post-publication time limit on such challenges. 2009 Okla. Sess. Laws 1704, ch. 318, §1(B) (codified at 34 O.S.2011, § 8(B)). ¶8 Even if we were to adopt the Threadgill rule to address a legislative referendum, here Plaintiffs have failed to show that the cost of adding one more question to the general election ballot, already crowded with state questions is so costly as to warrant us ignoring Article IV, Section 1 of the Oklahoma Constitution. Thus, justification for retreating from this Court's self-imposed rule of abstention is absent here. We find in this proceeding, honoring Article IV, Section 1 of the Oklahoma Constitution requires this Court to abstain from addressing the substantive issues raised by the parties. The challenges raised here remain unadjudicated and intact, as does any challenge brought under the federal or state constitutions by a proper party if State Question 777 is passed by the voters. ¶9 We will not reverse the trial court when it "reaches the correct result but for the wrong reason." Hall v. GEO Group, Inc., 2014 OK 22, ¶ 17, 324 P.3d 399, 406 ("[T]he Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale."). Here, the district court dismissed the petition by granting the Appellees' motion to dismiss on the grounds that State Question 777 was not facially unconstitutional, effectively dismissing the petition. Accordingly, we affirm the district court's dismissal of the case, but do so on the basis that the district court should have abstained from the addressing legislative referendum before voted on by the people. See In re Initiative Petition No. 366, State Question No. 689, 2002 OK 21, ¶ 4, 46 P.3d 123, 125. ¶10 The time to file the petition for rehearing is normally 20 days. Okla. Sup. Ct. R. 1.13, 12 O.S.2011, ch. 15, app.1. But due to the exigent circumstances here, the time to file is reduced. The parties must file any petition for rehearing from this decision in the Office of the Clerk of the Supreme Court no later than 4:30 p.m. on Thursday, August 11, 2016. AFFIRMED; REHEARING TIME REDUCED. CONCUR: Reif, C.J.; Combs, V.C.J. (by separate writing), and Watt, Taylor, Colbert, Gurich, JJ.; and Bell and Goree, SJJ. CONCUR IN RESULT: Kauger (joins Combs, V.C.J.). DISQUALIFIED: Winchester and Edmondson, JJ. COMBS, V.C.J., with whom KAUGER, J., joins, concurring specially: ¶1 I agree with the majority's conclusion that addressing the substantive constitutional issues raised by the parties is inappropriate at this time, and with the decision to affirm the order of the trial court. I write separately, however, to emphasize the need for timeliness in any pre-election constitutional challenge in causes similar to this one. ¶2 As the majority notes, this Court originally declined to inject itself into pre-election controversies concerning the constitutionality of initiative petitions. Threadgill v. Cross, 1910 OK 165, 109 P. 558. Over the years, the Court has departed from Threadgill and has become more willing to consider pre-election challenges to the constitutionality of initiative petitions if doing so could prevent a costly and unnecessary election due to facial unconstitutionality. See In re: Initiative Petition No. 366, State Question No. 689, 2002 OK 21, ¶4, 46 P.3d 123; In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶¶1-2, 838 P.2d 1; In re Supreme Court Adjudication of Initiative Petitions in Norman, Okla. Numbered 74-1 and 74-2, 1975 OK 36, ¶19, 534 P.2d 3. ¶3 The majority declines to firmly adopt this Court's post-Threadgill jurisprudence concerning initiative petitions and apply it to the legislative referendum process. Even were the Court to do so, however, I believe we should not intervene because of the time frame in which this cause was presented to the Court. ¶4 The process for this referendum began when the Oklahoma Legislature adopted House Joint Resolution 1012 on April 30, 2015. Pursuant to 34 O.S. Supp. 2015 § 9(C), the Secretary of State submitted the proposed ballot title to the Attorney General for review on May 4, 2015. After declaring the ballot title deficient and rewriting it more than once, the Attorney General submitted the final ballot title on June 10, 2015. On June 29, 2015, the Governor issued an executive proclamation declaring SQ 777 be placed on the November 8, 2016, ballot. Many months passed before the lawsuit which is the subject of this appeal was filed in the district court on March 1, 2016. While Plaintiffs/Appellants bided their time, the date of the election drew ever closer. ¶5 The Legislature has not provided any statutory timeframe for a pre-election constitutional challenge to legislative referendums, as it has done with initiative petitions in the form of 34 O.S. Supp. 2015 § 8(B).1 In fact, Title 34 makes no mention of constitutional challenges to legislative referendums at all. The same is not true of challenges to the ballot titles of legislative referendums, where 34 O.S. Supp. 2015 § 10 specifically prohibits appeals concerning the ballot titles of constitutional and legislative enactments proposed by the legislature. ¶6 Regardless, this Court has previously stressed the importance of timeliness in election and ballot related matters. In In re: Legislative Referendum No. 334, State Question 711, 2004 OK 75, 107 P.3d 556 (as corrected Sept. 28, 2004), this Court declined to assume original jurisdiction over a challenge to the constitutionality of a legislative referendum to add a provision to the Oklahoma Constitution. Writing separately, Justice Kauger stressed the importance of timeliness in a challenge such as this one, stating: ¶4 The law fixes election dates and the petitioners are well aware that the question is scheduled to appear on the November 2, 2004, general election ballot. They should also be aware of the necessary work required, the time consumed and the cost of causing the ballots to be printed. It is the duty of the petitioners to proceed with the utmost diligence in asserting in a proper forum their claimed rights. ¶5 Laches may bar the right to challenge the balloting process. Although the time has long passed since this Court, when presented with a timely constitutional challenge, will refuse to address a blatantly unconstitutional measure to prevent the costly expenditure of public revenues on needless elections, the challenge must be timely made. In re: Legislative Referendum No. 334, State Question 711, 2004 OK 75, ¶¶4-5 (Kauger, J., concurring specially) (footnotes omitted). ¶7 Additionally, this Court has long acknowledged the right to challenge the balloting process in other election matters may be lost by unreasonable delay. See, e.g., Evans v. State Election Bd., 1990 OK 132, ¶¶12-16, 804 P.2d 1125 (holding challenge to Election Board's ruling 115 days later and post-election challenge to a deceased individual's inclusion on the ballot barred by laches); Wickersham v. State Election Bd., 1960 OK 245, ¶15, 357 P.2d 421 (holding the matter of the eligibility of a candidate for an office must be adjudicated at an early date and before an election is held); Harding v. State Election Bd., 1946 OK 171, ¶2, 170 P.2d 208 (holding concerning election matters that "time is of the essence and that it was the duty of the petitioner to proceed with utmost diligence in asserting in a proper forum his claimed rights."). ¶8 The lengthy delay between the Governor's proclamation and the lawsuit filed by Plaintiffs/Appellants prejudices the courts. Any pre-election constitutional challenge to a legislative referendum would require the same careful review as that devoted to initiative petitions. As this Court explained: In essence, our cases set out our discretionary authority to reach clear and manifest facial constitutional challenges at the preelection stage if, in our opinion, to do so will prevent the holding of a costly and unnecessary election. Although we have used this discretionary authority on numerous occasions we must not forget it is of a discretionary character and, in our view, we must always keep in mind, before exercising such authority, the fundamental basis of the people's right to institute change and express their will through the initiative process. Only in the clearest cases do we believe it is essential to use the discretionary authority, and only in the clearest cases do we believe it is warranted to interfere with the people's basic right to vote on important issues by a holding of constitutional infirmity. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶11, 879 P.2d 810. This Court cannot permit potential challengers to bide their time until the ballot printing and election deadlines loom, in an attempt to force an adjudication quickly. We cannot permit a flood of late-filed suits that must be resolved before ballot printing lest the State be forced to reprint the ballots at significant expense. If a pre-election challenge to the constitutionality of a legislative referendum is to be made and considered by the courts, it must be made in a timely fashion. FOOTNOTES 1 34 O.S. Supp. 2015 § 8(B) provides: It shall be the duty of the Secretary of State to cause to be published, in at least one newspaper of general circulation in the state, a notice of such filing and the apparent sufficiency or insufficiency of the petition, and shall include notice that any citizen or citizens of the state may file a protest as to the constitutionality of the petition, by a written notice to the Supreme Court and to the proponent or proponents filing the petition. Any such protest must be filed within ten (10) business days after publication. A copy of the protest shall be filed with the Secretary of State.

515b00a7-50f0-4abe-8c37-9f1118f5e1f4

Steele v. Pruitt

oklahoma

Oklahoma Supreme Court

STEELE v. PRUITT2016 OK 87Case Number: 115190Decided: 08/08/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KRIS STEELE, REV. DR. GEORGE E. YOUNG, TOM WARD and OKLAHOMANS FOR CRIMINAL JUSTICE REFORM, INC., Petitioners, v. THE HONORABLE SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, Respondent. ORIGINAL PROCEEDING TO DETERMINE THE SUFFICIENCY OF THE REWRITTEN BALLOT TITLES FOR INITIATIVE PETITION NO. 404, STATE QUESTION 780 AND INITIATIVE PETITION NO. 405, STATE QUESTION 781 ¶0 The Petitioners filed an original proceeding to challenge the sufficiency of the Attorney General's rewritten ballot titles for Initiative Petition No. 404, State Question 780 and Initiative Petition No. 405, State Question 781. We hold there are deficiencies in both the proposed and rewritten ballot titles. We hereby amend the ballot titles pursuant to 34 O.S. Supp. 2015, § 10. APPLICATION TO ASSUME ORIGINAL JURISDICTION IS GRANTED; BALLOT TITLES DECLARED DEFICIENT AND ARE HEREBY AMENDED BY THIS COURT PURSUANT TO TITLE 34 O.S. SUPP. 2015, § 10 D. Kent Meyers, Melanie Wilson Rughani, and Paige Masters, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Petitioners. Cara N. Rodriguez, General Counsel and Sarah A. Greenwalt, Assistant Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Respondent. COMBS, V.C.J.: FACTS AND PROCEDURAL HISTORY ¶1 On January 27, 2016, the proponents of Initiative Petition No. 404, State Question 780 and Initiative Petition No. 405, State Question 781, Kris Steele, Rev. Dr. George E. Young, Sr., Tom Ward, and Oklahomans for Criminal Justice Reform, Inc. (collectively Petitioners), filed both petitions and their ballot titles with the Secretary of State pursuant to 34 O.S. Supp. 2015, § 8 (A). The ballot titles read as follows: The Petitioners' Original Filed Ballot Titles (January 27, 2016): Initiative Petition No. 404: This measure amends statutes to reform criminal sentences for certain property and drug offenses. It makes certain property offenses misdemeanors. It makes simple drug possession a misdemeanor. Property offenses where the value of the property is one thousand dollars or more remain felonies, and the distribution, possession with intent to distribute, transportation with intent to distribute, manufacture, or trafficking of drugs remain felonies. Initiative Petition No. 405: This measure creates the County Community Safety Investment Fund. The fund consists of costs saved by reclassifying as misdemeanors certain property crimes and drug possession. The funds must be distributed to counties for the purpose of funding rehabilitative programs, such as mental health and substance abuse treatment programs. This measure only becomes effective if voters approve State Question 780 the Oklahoma Smart Justice Reform Act. ¶2 Neither petition was challenged pursuant to 34 O.S. Supp. 2015, § 8 (C) and accordingly, both were circulated throughout the state for signatures. On June 2, 2016, the Petitioners filed their signed petitions with the Secretary of State. Thereupon, the Secretary of State submitted a copy of the Petitioners' proposed ballot titles to the Attorney General, Scott Pruitt (Respondent), pursuant to 34 O.S. Supp. 2015, §§ 8 (H) and 9 (D), for his review of their legal correctness. On June 9, 2016, the Respondent notified the Secretary of State that the ballot titles did not comply with the law and he would submit alternate ballot titles. The Respondent had the following issues with the Petitioners' ballot titles: Initiative Petition 404 Ballot Title1: It fails to explain in basic words the effect of the proposition because: 1. It fails to explain that distinctions within simple drug possession charges are no longer made based on the type of drug possessed. 2. It fails to explain that enhancements based on the number of possession offenses and on the location of the offense have been removed. 3. It fails to state that the value of the property for the identified felony property offenses increased from $500 to $1000. Initiative Petition 405 Ballot Title2: It fails to explain in basic words the effect of the proposition because it does not explain that the Office of Management and Enterprise Services will be responsible for calculating the funds to be deposited in the County Community Safety Investment Fund and that these calculations will be based on actual data or best available estimates. ¶3 On June 22, 2016, the Respondent submitted the following rewritten ballot titles: AG Rewritten Initiative Petition 404 Ballot Title: This measure changes state law to reduce the punishments for drug possession and certain property offenses. Under current law, drug possession is a felony when, for example: • The drug is one that has a high potential for abuse; • The person possessing the drug has a prior conviction for drug possession; • The person possessed the drug within 1,000 feet of a public or private school or public park; or • The person possessed the drug in the presence of a child under the age of twelve. If voters approve this measure, these sorts of drug possession crimes would be misdemeanors instead of felonies. The measure also changes the law for certain property crimes like grand larceny, embezzlement, and writing two or more bogus checks. Under current law, if the value of the property involved in those crimes is more than $500, the crime is a felony. If it is less than $500, the crime is a misdemeanor. This measure would raise that amount to $1000, so that any crime involving less than $1000 worth of property would be a misdemeanor, rather than a felony. AG Rewritten Initiative Petition 405 Ballot Title: This measure creates the County Community Safety Investment Fund ("Fund"), but only if voters also approve State Question 780, the Oklahoma Smart Justice Reform Act. This measure presumes that the Oklahoma Smart Justice Reform Act will save the State money by making drug possession and certain property crimes misdemeanors instead of felonies. The measure requires the State's Office of Management and Enterprise Services to use either actual data or its best estimate to determine how much money was saved on a yearly basis. The amount that is determined or estimated to have been saved must be deposited into the Fund and distributed to counties in proportion to their population to pay for rehabilitative programs like mental health and substance abuse treatment programs. The measure does not identify a revenue source that will be used to pay the amount that is determined or estimated to have been saved. Payment into the Fund of this amount would be made from the General Revenue Fund, the primary fund used to pay for state government. ¶4 On July 6, 2016, this Court, pursuant to 34 O.S. Supp. 2015, § 8 (H), determined the signed petitions appeared to be numerically sufficient and ordered the Secretary of State to publish the notice required by 34 O.S. Supp. 2015, § 8 (I), informing the public that an objection may be filed.3 The Secretary of State, on July 14, 2016, published the required notices. On July 20, 2016, the Petitioners filed their application to assume original jurisdiction to object to the rewritten ballot titles for Initiative Petition 404, State Question 780 and Initiative Petition 405, State Question 781, pursuant to 34 O.S. Supp. 2015, § 8 (I). STANDARD OF REVIEW ¶5 The ballot title must reflect the character and purpose of the measure and not be deceptive or misleading. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶25, 879 P.2d 810. The test is whether it is written so that voters are afforded an opportunity to fairly express their will and whether it apprises voters with substantial accuracy what they are asked to approve. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97 at ¶25. ARGUMENTS AND ANALYSIS ¶6 The Petitioners assert both rewritten ballot titles misrepresent the effect of the measures and are contrary to 34 O.S. Supp. 2015, § 9's prohibition on partiality and argument. Section 9 provides various requirements which must be met before the ballot title may be submitted to a vote of the people.4 These requirements include: a ballot title shall use basic words of general usage, shall not contain words with special meaning not commonly known, and shall not reflect partiality in its composition or contain any argument for or against the measure. Title 34 O.S. Supp. 2015, § 9 (B) (4). A person who is dissatisfied with the wording of a ballot title may appeal to this Court by petition and offer a substitute ballot title. 34 O.S. Supp. 2015, § 10. Upon review by this Court, we may correct or amend the ballot title, accept the substitute ballot title, or draft a new ballot title conforming to 34 O.S. Supp. 2015, § 9. Id. I. Initiative Petition 404 ¶7 The Petitioners first challenge Initiative Petition 404's rewritten ballot title. They assert the Respondent's version is misleading and fails to adequately explain the effect of the proposition. Section 3 of Initiative Petition 404 amends 63 O.S. Supp. 2012, § 2-402, a section of law concerning various crimes and punishments related to controlled dangerous substances. The section changes the classification of certain crimes from felonies to misdemeanors. The Petitioners argue the rewritten ballot title focuses on only portions of the law which evoke emotionally charged responses and uses other terms of art which are misleading and may not be well understood by the citizenry. Specifically, they allege the Respondent's rewritten ballot title focuses on isolated unrepresentative examples selected to appeal to public emotion and fear, then vaguely states "these sorts of drug possession crimes would be misdemeanors instead of felonies." These examples include possessing drugs within 1000 feet of a public or private school or public park and possessing drugs in the presence of children under the age of twelve. The Petitioners note that the current law applies to more than just public and private schools and public parks. It applies to "public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas." 63 O.S. Supp. 2012, § 2-402 (C). Emphasizing one aspect of the law over the others they claim is meant to cause fear. They assert, under current law a college student found with marijuana or Adderall, without a prescription, would also be convicted under the same felony. The Petitioners argue that the complete omission of these far more problematic examples while including two examples focused on drugs and children is misleading. They cite In re Initiative Petition No. 384, 2007 OK 48, ¶12, 164 P.3d 125, for comparison. In that case, this Court reviewed the "gist" of a measure rather than the ballot title. We found the inclusion of one item in the gist in great detail while failing to mention another important item did not provide sufficient information for a potential signatory to make an informed decision. In re Initiative Petition No. 384, 2007 OK 48 at ¶12. We held the "cut and paste" approach resulted in a "gist that, at once, contains too much and not enough information." Id. ¶8 The Petitioners also assert the Respondent's statement that "[t]he drug is one that has a high potential for abuse" includes a term of art ("high potential for abuse") used in the medical and legal fields to classify controlled substances (Schedule I-Schedule V) for purposes of differing treatment. It also contains an emotionally laden word "abuse" which they assert carries a number of other connotations and may be misunderstood. The Petitioners note that 34 O.S. Supp. 2015, § 9 expressly forbids the use of terms which "have a special meaning for a particular profession" and their statement violates this provision. ¶9 The Petitioners argue that in addition to describing the terms of this section of the initiative petition with selective examples it also uses a completely subjective catch-all description, "these sorts of drug possession crimes" which fails to apprise voters with substantial accuracy what they are asked to approve." Citing Initiative Petition No. 360, 1994 OK 97, ¶25, 879 P.2d 810.5 The basic effect of this amendment that, "simple drug possession would become a misdemeanor rather than a felony in all cases," was never mentioned by the Respondent. The Petitioners also note the rewritten ballot title does not mention other offenses, such as possession with intent to distribute, transportation with intent to distribute, distribution or manufacture of such drugs, will remain felonies under the proposal. ¶10 The Petitioners assert similar arguments against the Respondent's description involving property crimes. They note the rewritten ballot title selects specific property crimes, e.g., grand larceny, embezzlement and writing two or more bogus checks, and states "any crime involving less than $1000 worth of property would be a misdemeanor, rather than a felony." Petitioner points out that this is incorrect. Such crimes like theft of a car or automotive vehicle (21 O.S. § 1720), theft of a house (21 O.S. § 1723) and theft of certain domestic animals or livestock (21 O.S. § 1716) will remain felonies. They assert the Respondent's description is inaccurate and misleading and fails to meet the requirements of 34 O.S. Supp. 2015, § 9. ¶11 The Respondent asserts because of the 200-word limitation on the number of words in a ballot title, it is required to summarize the measure. Although the rewritten ballot title must be specific, the limitation prevents setting out every provision of a measure in the ballot title. The Respondent argues he did not use technical terms and emotionally charged examples in the ballot title. He notes the term "abuse" is used in the definitions of Schedule I and II drugs. Schedule I and II drugs are defined in 63 O.S. §§ 2-203 and 2-205. Under these definitions Schedule I drugs include the characteristics which have "(1) High potential for abuse" and Schedule II's definition includes drugs that have "a potential for abuse." He asserts his explanation that "under current law, drug possession is a felony when, for example: the drug is one that has a high potential for abuse," clearly and plainly explains the current law that the proposal seeks to change. ¶12 The Respondent also asserts the reference in the rewritten ballot title concerning the removal of enhancement provisions for drug possession around schools and parks was not made to evoke fearful images. He argues the reference virtually mirrors the provisions of 63 O.S. § 2-402 (C) and is "one of the effects" of the proposal. However, as mentioned, 63 O.S. § 2-402 (C) is not limited to just public or private schools and parks, it applies also to institutions of higher education as well as vocational education.6 In addition, the Respondent takes issue with the Petitioners' simplistic explanation in their ballot title concerning drug possession. The Petitioners' ballot title, he argues, indicates the proposed amendments only concern "simple drug possession" when in fact much of what is being removed by the proposal concerns enhancement provisions. He asserts this description is at best, imprecise and at worst, misleading. II. Initiative Petition 405 ¶13 Next, the Petitioners assert the rewritten ballot title for Initiative Petition 405, suffers from the same deficiencies found in Initiative Petition 404 by conveying partiality and bias and risks misleading voters. They argue the Respondent improperly expresses skepticism regarding the merits or likelihood of success by stating the measure "presumes" the Oklahoma Smart Justice Reform Act will save the State money. The Petitioners are concerned the rewritten ballot title suggests the initiative petition would siphon money traditionally devoted to other state programs by stating the "measure does not identify a revenue source that will be used to pay the amount that is determined or estimated to have been saved," and "[p]ayment into the Fund . . . would be made from the General Revenue Fund, the primary fund used to pay for state government." They believe this "gratuitous explanation" concerning the flow of funds serves only to suggest that the self-funding mechanism is somehow unlawful, inadequate, or would reduce funds that would otherwise be used to pay for state government. All of which, they assert, is impermissible argument in violation of 34 O.S. Supp. 2015, § 9. They argue their version of the ballot title is correct in that it simply informs voters the measure would create a fund that "consists of costs saved by reclassifying as misdemeanors certain property crimes and drug possession," regardless if the amount is $0 or $10 million. ¶14 The Respondent asserts his language does not convey partiality or bias against the measure. The word "presume" means "upon probable evidence."7 He argues it is quite possible but not definite that the Oklahoma Smart Justice Reform Act may save the State money. Because it is not definite then the word "presume" is appropriate. In addition, the Respondent asserts the Petitioner's ballot title is deficient because it provides no explanation relating to the Office of Management and Enterprise Services' (OMES) role in the calculation and expenditure of funds. Because OMES has a substantial role in the calculation and disbursement of these Funds provided for in the initiative petition, he alleges, it is misleading not to mention OMES. III. Ballot Title Word Limitation ¶15 Lastly, the Petitioners argue the two rewritten ballot titles exceed the 200-word limitation imposed by 34 O.S. Supp. 2015, § 9. Section 9 also requires language that clearly states a "yes" vote is a vote in favor of the proposition and a "no" vote is a vote against the proposition. 34 O.S. Supp. 2015, § 9 (B) (5). In order to comply with the law, the Respondent's rewritten ballot titles include the following language: SHALL THE MEASURE BE APPROVED? FOR THE MEASURE-YES _______ AGAINST THE MEASURE-NO _______ A "YES" vote is a vote in favor of this measure. A "NO" vote is a vote against this measure. The Petitioners believe this required language should be included when calculating the 200-word limitation. The Petitioners note this Court recently did not include such language when determining the word count on a ballot title. See OCPA Impact, Inc. v. Sheehan, 2016 OK 84, ¶11, __P.3d__. However, they assert the issue was not briefed in that case. ¶16 The Respondent finds this line of argument misleading. He believes our opinion in OCPA Impact, Inc. v. Sheehan, 2016 OK 84, ¶11, __P.3d__, was clear, because this Court did not count the "boilerplate language" at the end of a ballot title towards the 200-word limit. The Respondent argues, "[r]equiring the substance of the ballot title to include boilerplate language that is 33-words long would detract from a proponent's or Attorney General's ability to include all of the relevant information." He requests this Court decline to read the 200-word limitation found in 34 O.S. Supp. 2015, § 9 to practically be only a 167-word limit. IV. Title 34 O.S. Supp. 2015, § 10 ¶17 The Petitioners reassert their original ballot titles are more appropriate than the two rewritten by the Respondent. We find the rewritten ballot titles to be misleading and partial. However, we conclude neither parties' proposed ballot titles sufficiently describe the measures involved. In addition, we reaffirm the purpose of a ballot title is to reflect the character and purpose of the measure. See In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶25, 879 P.2d 810. We do not find the "boilerplate language" at the end of a ballot title, although a necessary part of the ballot title, was intended to reflect the character or purpose of the measure. We therefore hold, the 200-word limitation was intended for words that are used to reflect the character and purpose of a measure and is not applicable to the other required language found in 34 O.S. Supp. 2015, § 9 (B) (5). Under this interpretation, neither the Respondent's two rewritten ballot titles nor the Petitioners' proposed ballot titles exceed the 200-word limitation. ¶18 After considering the arguments and all the proposed ballot titles we hereby, pursuant to the authority vested in this Court by 34 O.S. Supp. 2015, § 10 (A)8, present our own draft of the ballot titles' language concerning the character and purpose of the measures, as follows: Initiative Petition 404 Ballot Title: This measure amends existing Oklahoma laws and would change the classification of certain drug possession and property crimes from felony to misdemeanor. It would make possession of a limited quantity of drugs a misdemeanor. The amendment also changes the classification of certain drug possession crimes which are currently considered felonies and cases where the defendant has a prior drug possession conviction. The proposed amendment would reclassify these drug possession cases as misdemeanors. The amendment would increase the threshold dollar amount used for determining whether certain property crimes are considered a felony or misdemeanor. Currently, the threshold is $500. The amendment would increase the amount to $1000. Property crimes covered by this change include; false declaration of a pawn ticket, embezzlement, larceny, grand larceny, theft, receiving or concealing stolen property, taking domesticated fish or game, fraud, forgery, counterfeiting, or issuing bogus checks. This measure would become effective July 1, 2017. Initiative Petition 405 Ballot Title: This measure creates the County Community Safety Investment Fund, only if voters approve State Question 780, the Oklahoma Smart Justice Reform Act. This measure would create a fund, consisting of any calculated savings or averted costs that accrued to the State from the implementation of the Oklahoma Smart Justice Reform Act in reclassifying certain property crimes and drug possession as misdemeanors. The measure requires the Office of Management and Enterprise Services to use either actual data or its best estimate to determine how much money was saved on a yearly basis. The amount determined to be saved must be deposited into the Fund and distributed to counties in proportion to their population to provide community rehabilitative programs, such as mental health and substance abuse services. This measure will not become effective if State Question 780, the Oklahoma Smart Justice Reform Act, is not approved by the people. The measure will become effective on July 1 immediately following its passage. CONCLUSION ¶19 For the foregoing reasons, we grant the Petitioners' application to assume original jurisdiction, find the proposed and rewritten ballot titles deficient, and rewrite the ballot titles pursuant to 34 O.S. Supp. 2015, § 10. Due to the exigencies related to the element of time affecting the situation involved herein, the usual 20-day period allowed by Okla.Sup.Ct.R. 1.13, 12 O.S. 2011, ch. 15, app.1, for the filing of petitions for rehearing generally, is, as applied to this case, reduced. The parties must file any petition for rehearing from this decision in the Office of the Clerk of the Supreme Court no later than 4:30 p.m. on Thursday, August 11, 2016. APPLICATION TO ASSUME ORIGINAL JURISDICTION IS GRANTED; BALLOT TITLES DECLARED DEFICIENT AND ARE HEREBY AMENDED BY THIS COURT PURSUANT TO TITLE 34 O.S. SUPP. 2015, § 10 ¶20 REIF, C.J., COMBS, V.C.J., and KAUGER, WATT, EDMONDSON, and GURICH, JJ., concur. ¶21 TAYLOR, J., with whom WINCHESTER, J., joins, dissenting: I would approve the ballot titles written by the Attorney General. ¶22 COLBERT, J., not participating. FOOTNOTES 1 Letter dated June 9, 2016, from the Attorney General to the Secretary of State; Appendix to the Petitioners' Application to Assume Original Jurisdiction and Combined Petition to Review the Ballot Titles of Initiative Petitions 404 and 405, Appendix 5. 2 Letter dated June 9, 2016, from the Attorney General to the Secretary of State; Appendix to the Petitioners' Application to Assume Original Jurisdiction and Combined Petition to Review the Ballot Titles of Initiative Petitions 404 and 405, Appendix 6. 3 Case No. 115,113 (Initiative Petition 404) and Case No. 115,114 (Initiative Petition 405). 4 Title 34 O.S. Supp. 2015, § 9 (B) provides: B. The parties submitting the measure shall also submit a suggested ballot title to the Secretary of State which shall be filed on a separate sheet of paper and shall not be part of or printed on the petition. The suggested ballot title: 1. Shall not exceed two hundred (200) words; 2. Shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition; 3. Shall not contain any words which have a special meaning for a particular profession or trade not commonly known to the citizens of this state; 4. Shall not reflect partiality in its composition or contain any argument for or against the measure; 5. Shall contain language which clearly states that a "yes" vote is a vote in favor of the proposition and a "no" vote is a vote against the proposition; and 6. Shall not contain language whereby a "yes" vote is, in fact, a vote against the proposition and a "no" vote is, in fact, a vote in favor of the proposition. 5 In Initiative Petition No. 360, 1994 OK 97, ¶25, 879 P.2d 810, this Court held: Normally, where the ballot title submitted by the Attorney General is found sufficient it is generally used regardless of the sufficiency of those submitted by other parties. In re Initiative Petition No. 347, supra, 813 P.2d at 1032. However, the basic statutory requirements of § 9 must be met and we have outlined the requirements of a ballot title in previous cases. Id; Arthur v. City of Stillwater, 611 P.2d 637, 643 (Okla. 1980). These cases provide the title must be in a form to allow a voter to reach an informed decision on whether to approve or disapprove the measure. The question must be specific, but it is not required to contain the proposition from beginning to end. The title must reflect the character and purpose of the measure and it must not be deceptive or misleading. It must also be free from uncertainty and ambiguity. The test is whether the title is couched in such a way that voters are afforded an opportunity to fairly express their will, and whether the question is sufficiently definite to apprise voters with substantial accuracy what they are asked to approve. 6 Title 63 O.S. Supp. 2012, § 2-402 (C) provides: C. Any person who violates any provision of this section by possessing or purchasing a controlled dangerous substance from any person, in or on, or within one thousand (1,000) feet of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas, or in the presence of any child under twelve (12) years of age, shall be guilty of a felony and punished by: 1. For a first offense, a term of imprisonment, or by the imposition of a fine, or by both, not exceeding twice that authorized by the appropriate provision of this section. In addition, the person shall serve a minimum of fifty percent (50%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence; or 2. For a second or subsequent offense, a term of imprisonment not exceeding three times that authorized by the appropriate provision of this section and the person shall serve a minimum of ninety percent (90%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence, and imposition of a fine not exceeding Ten Thousand Dollars ($10,000.00). 7 Black's Law Dictionary 1349 (4th ed. 1968). 8 Title 34 O.S. Supp. 2015, § 10 (A) provides: A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) business days after the same is published by the Secretary of State as provided for in subsection I of Section 8 of this title, appeal to the Supreme Court by petition in which shall be offered a substitute ballot title for the one from which the appeal is taken. Upon the hearing of such appeal, the court may correct or amend the ballot title before the court, or accept the substitute suggested, or may draft a new one which will conform to the provisions of Section 9 of this title.

e4ddf659-6a65-4784-9c01-6eb78047a9e0

Stevens v. Fox

oklahoma

Oklahoma Supreme Court

STEVENS v. FOX2016 OK 106Case Number: 114676Decided: 10/11/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.  JOE STEVENS and CECIL DOOLEY, Oklahoma taxpayers and vested participants in the Oklahoma Public Employees Retirement System, Plaintiffs/Appellants, v. JOSEPH A. FOX, Executive Director of the Oklahoma Public Employees Retirement System, DEWAYNE MCANALLY, STEVE PARIS, MICHAEL D. EVANS, JILL GEIGER, JAMES R. "RUSTY" HALE, THOMAS E. KEMP, JR., DON KILPATRIK, BRIAN MADDY, LUCINDA MELTABARGER, MICHAEL MORADI, CLEVE PIERCE and FRANK STONE, as and constituting the Board of Trustees of the Oklahoma Public Employees Retirement System, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ROGER H. STUART ¶0 The Plaintiffs/Appellants filed a Petition for Declaratory and Supplemental Relief challenging the validity of HB 2630 (2014). The Plaintiffs/Appellants claimed HB 2630 was void because it was passed by the Legislature in violation of the Oklahoma Pension Legislation Actuarial Analysis Act. Both parties filed a motion for summary judgment. The trial court granted Defendants/Appellees' motion for summary judgment and the Appellants appealed. The trial court's granting of summary judgment is affirmed and the matter is remanded to the trial court for further proceedings consistent with this opinion. THE DECISION OF THE TRIAL COURT IS AFFIRMED AND THIS CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Robert A. Nance and Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc., Oklahoma City, Oklahoma, for Plaintiffs/Appellants. Marc Edwards and Catherine L. Campbell, Phillips Murrah, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees. Patrick R. Wyrick, Solicitor General, Mithun S. Mansinghani, Deputy Solicitor General, and Sarah A. Greenwalt, Assistant Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Attorney General. COMBS, V.C.J.: FACTS AND PROCEDURAL HISTORY ¶1 The focus of this appeal concerns the validity of HB 2630; 2014 Okla. Sess. Laws c. 375 (effective November 1, 2014).1 HB 2630 created the Retirement Freedom Act (74 O.S. Supp. 2014, § 935.1 et seq.). The main purpose of HB 2630 was to create a new defined contribution system within the Oklahoma Public Employees Retirement System (OPERS) for persons who initially become a member of OPERS on or after November 1, 2015. This includes most state employees hired on or after this date.2 To accomplish this purpose, the act provides OPERS could either establish a new defined contribution "plan or use an existing plan." Title 74 O.S. Supp. 2014, § 935.3. Those members of OPERS hired prior to this date are allowed to remain in the defined benefit plan under OPERS. To help understand the issues involved it is necessary to explain the differences between defined benefit plans and defined contribution plans. ¶2 Prior to November 1, 2015, most state employees and some other governmental employees have participated in the OPERS defined benefit plan. A defined benefit plan provides an employee who retires from the plan a fixed periodic payment based upon a formula. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439, 119 S. Ct. 755, 142 L. Ed. 2d 881 (1999). In other words, it provides a pension. As the name implies, the benefit is defined. If you know the factors to place in the formula you can determine the benefit. In the case of the OPERS defined benefit plan, both the employer and employee make monthly contributions to fund the plan. The plan assets are kept in a pool of assets rather than individual dedicated accounts for employees. The employer bears the entire investment risk and underfunding may result in a myriad of ways including a shortfall in the plan's investments, insufficient contributions or inaccurate actuarial assumptions. These plans typically use actuaries to determine assumptions concerning the necessary contributions and investment return to cover projected benefit obligations. These assumptions take into account items such as, unfunded and underfunded plan amendments, changes in investment yields, changes in mortality rates, experience losses, salary increases and employee turnover. See 1996 OK AG 21, ¶7. In essence, actuaries make an educated guess as to what the future will bring in order to advise the system on the level of funding needed to pay expected future benefits. Inherent in all defined benefit plans is a lack of certainty. ¶3 HB 2630 creates a new defined contribution system within OPERS. Title 74 O.S. Supp. 2014, § 935.2. Under a defined contribution plan there can never be an insufficiency of funds to cover promised benefits. Hughes, 525 U.S. at 439 (citations omitted). The obvious incentive for creating this new defined contribution system is its certainty and inability to be underfunded. Defined contribution plans provide an individual account for each participant and benefits are based solely upon the amounts contributed to the participants account and the earnings on those contributions. Id. As its name implies, the amount contributed is defined, however, the future benefit such an account will bring is unknown. The risk is shifted from the employer to the employee. In this new defined contribution system employees contribute between 3% to 7% of compensation and the employer shall match that contribution. Title 74 O.S. Supp. 2014, § 935.5. In addition, HB 2630 also requires employers making contributions on behalf of those employees in the new defined contribution system to make an additional contribution to the now closed defined benefit plan. Title 74 O.S. Supp. 2014, § 935.10 provides the amount of this contribution to the defined benefit plan will be equal to the difference between the employer contribution made to the defined benefit plan and the employer contribution made on behalf of the members in the new defined contribution system. The stated purpose for this contribution is to help "reduce the liabilities of the defined benefit pension plan." Title 74 O.S. Supp. 2014, § 935.10 (B). HB 2630 also requires each employer with employees participating in the new defined contribution system to pay an amount "to reimburse the cost of administration of the defined contribution system, as determined by the Board." Title 74 O.S. Supp. 2014, § 935.6 (E). ¶4 On October 24, 2014, the Plaintiffs/Appellants, Joe Stevens and Cecil Dooley (Appellants) filed their Petition for Declaratory and Supplemental Relief challenging the validity of HB 2630. The Appellants claimed they have both taxpayer standing as resident Oklahoma taxpayers and individual standing as vested members in the OPERS defined benefit plan to bring this action. The Appellants' prayer for relief requested HB 2630 be found void ab initio because it is unconstitutional and in violation of certain sections of the Oklahoma Pension Legislation Actuarial Analysis Act (62 O.S. § 3101 - 3114) (OPLAAA). They also requested the Defendants/Appellees Joseph A. Fox, Executive Director of the Oklahoma Public Employees Retirement System, Dewayne McAnally, Steve Paris, Michael D. Evans, Jill Geiger, James R. "Rusty" Hale, Thomas E. Kemp, Jr., Don Kilpatrik, Brian Maddy, Lucinda Meltabarger, Michael Moradi, Cleve Pierce and Frank Stone, as and constituting the Board Of Trustees of the Oklahoma Public Employees Retirement System (collectively, Appellees), be enjoined from enforcing HB 2630. ¶5 The Appellants asserted the Legislature violated OPLAAA when it enacted HB 2630. OPLAAA was enacted in 2006; 2006 Okla. Sess. Laws c. 292 (SB 1894). OPLAAA establishes legislative procedures for introducing, hearing, and passing retirement legislation. It provides separate legislative procedures for fiscal and non-fiscal retirement bills. Since 2007, it has been applicable to "retirement systems" defined in 62 O.S., § 3103 (9) as "the Teachers' Retirement System of Oklahoma, the Oklahoma Public Employees Retirement System, the Uniform Retirement System for Justices and Judges, the Oklahoma Firefighters Pension and Retirement System, the Oklahoma Police Pension and Retirement System, the Oklahoma Law Enforcement Retirement System, or a retirement system established after January 1, 2006." 2007 Okla. Sess. Laws c. 186, §§ 2-3; see also 62 O.S. 2011, § 3102. ¶6 OPLAAA requires the Legislative Service Bureau to contract with a firm or entity to provide the actuarial services and duties under the Act. Title 62 O.S. 2011, § 3103. OPLAAA refers to this firm or entity as the "Legislative Actuary." It grants the Legislative Actuary authority to determine whether a proposed retirement bill is a fiscal retirement bill3 or a non-fiscal retirement bill4 and requires the Legislative Actuary to provide a written certification of that determination. Title 62 O.S. 2011, § 3105. The certification is attached to the original introduced bill and the whole process is a "condition precedent" to the introduction of any retirement bill.5 Id. ¶7 Each party filed a motion for summary judgment. The Appellants' primary argument was the Legislature failed to follow the regulations it set for itself under OPLAAA and therefore HB 2630 is void. They alleged the Legislative Actuary incorrectly certified HB 2630 as being a non-fiscal retirement bill because it created a new retirement system and created or increased the costs, benefits, normal cost and actuarial accrued liability of OPERS.6 This incorrect certification resulted in HB 2630 being passed by the Legislature using the wrong OPLAAA procedures. In addition, they argued HB 2630 unconstitutionally impaired the Appellants' retirement security rights in violation of Okla. Const. art. 2, § 157 and Okla. Const. art. 5, § 548 and certain funds were not used exclusively for the defined benefit members in violation of both Okla. Const. art. 23, § 129 and the Internal Revenue Code Section 401 (a) (2) (26 U.S.C. § 401 (a) (2)).10 ¶8 The Appellants asserted they have both taxpayer and individual standing. Their taxpayer standing argument is based on their challenge to an "alleged illegal expenditure of public funds." Oklahoma Pub. Employees Ass'n v. Oklahoma Dep't of Cent. Servs., 2002 OK 71, ¶10, 55 P.3d 1072. Their individual standing argument is based on their vested status in the OPERS defined benefit plan which they claimed, pursuant to Taylor v. State & Educ. Employees Grp. Ins. Program, 1995 OK 51, 897 P.2d 275, gives them a cognizable interest in the actuarial soundness of their pension funds. ¶9 In Appellees' motion for summary judgment they argued OPLAAA (62 O.S. 2011, § 3105) grants the Legislative Actuary sole authority for determining whether a retirement bill is fiscal or non-fiscal and his certification was correct for the following reasons: 1) OPLAAA's definition of "retirement system" (62 O.S. 2011, § 3103 (9)) is focused on the body corporate (OPERS) and not on the individual plans of a retirement system (defined contribution system); and 2) HB 2630 did not create or increase benefits, normal cost or actuarial accrued liability. They further contested the Appellants' basis for standing, asserting their alleged injuries are too speculative to invoke the district court's jurisdiction to issue a declaratory judgment (12 O.S. § 1651)11 or to constitute an illegal expenditure of public funds. The Appellants have presently suffered no violation of any right and none of their pension benefits have been reduced or taken away by HB 2630's passage. ¶10 Lastly, the Appellees asserted even if the Legislature violated OPLAAA it presents a non-justiciable controversy. The Appellees based their argument on the separation of powers doctrine and claimed OPLAAA is merely a legislative procedural statute created by the Legislature pursuant to its constitutional rulemaking powers (Okla. Const. art. 5, § 30).12 ¶11 The trial court heard the motions for summary judgment on July 21, 2015, and filed a Journal Entry of Judgment on January 6, 2016. As to individual standing, it specifically found the Appellants had standing based upon their allegations HB 2630 adversely affected the actuarial soundness of the defined benefit plan. Taylor v. State & Educ. Employees Group Ins. Program, 1995 OK 51, 897 P.2d 275. The trial court determined that in order to obtain a declaratory judgment a plaintiff must establish (1) a justiciable controversy exists, (2) between persons whose interests are adverse, (3) plaintiff has a legal interest in the controversy, and (4) the issues are ripe for judicial review. Knight v. Miller, 2008 OK 81, ¶8, 195 P.3d 372. The trial court determined the issues were not ripe for judicial review. HB 2630 does not immediately threaten the actuarial soundness of the defined benefit system, unreasonably impair the contract rights of retired public employees and those eligible for retirement, and does not increase contributions or reduce the benefits of retired public employees or those eligible to retire. Taylor, 1995 OK 51 at ¶20. On the contrary, it found HB 2630 actually provided for continuing funding of the defined benefit plan by requiring employers to pay the difference in contributions to the defined benefit plan. ¶12 The trial court also held OPLAAA had not been violated. It first determined a new retirement system under 62 O.S. 2011, § 3103 (9) would have to provide retirement benefits to a new group of employees not covered by a current retirement system which did not occur here. It found HB 2630 did not immediately affect the costs or funding factors of OPERS, did not increase "retirement benefits" as the term is commonly understood, and did not immediately increase the actuarial accrued liability or normal cost of the defined benefit system. The trial court sustained the Appellees' motion for summary judgment and the Appellants filed their Petition in Error on February 4, 2016. STANDARD OF REVIEW ¶13 Summary judgment is a pretrial procedure available where there is no dispute as to the material facts and the inferences that may be drawn from the undisputed material facts and where the evidentiary materials establish each and every material fact necessary to support the judgment as a matter of law. State ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, ¶11, 338 P.3d 613. An appeal on summary judgment comes to this Court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. On appeal, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. This Court will affirm a correct judgment on any applicable theory. See In re M.K.T., 2016 OK 4, ¶86, 368 P.3d 771. ANALYSIS ¶14 The Appellants' claims can be categorized as one individual standing claim and two taxpayer standing claims. The trial court in its Journal Entry of Judgment only addressed the individual standing claim and one taxpayer standing claim. In the Appellants' Brief in Chief they state they are no longer challenging HB 2630 as a constitutional impairment of Appellants' right to an actuarially sound retirement system. This was their claim based upon individual standing. They acknowledge, under OPLAAA no contractual rights are granted. Title 62 O.S. 2011, § 3113.13 They also conclude, individual standing is unnecessary because they believe they have adequately demonstrated they have taxpayer standing. Therefore, we will focus on the Appellants' issues based upon taxpayer standing. ¶15 The Appellants' first taxpayer standing claim concerns an alleged illegal expenditure of public funds based upon a violation of OPLAAA. This claim was decided by the trial court. The Appellants' Brief in Chief states "this is a case about the legislature ignoring its own legal obligations as a mere matter of convenience." Their primary contention is the Legislature failed to comply with OPLAAA in passing HB 2630. The Appellants allege the trial court erred as a matter of law in finding there was no violation of OPLAAA and assert they have taxpayer standing to present their claims. In order to have taxpayer standing we have held "a taxpayer possesses standing to seek equitable relief when alleging that violation of a statute will result in illegal expenditure of public funds." Thomas v. Henry, 2011 OK 53, ¶6, 260 P.3d 1251. Here the alleged illegal act was the passage of HB 2630 in violation of OPLAAA's procedures. The alleged expenditure of public funds was largely based on speculation concerning future expenditures which may or may not occur as a result of HB 2630. However, the Appellants did provide some evidence of expenditures. They provided invoices from OPERS's attorneys concerning the new defined contribution system which they alleged is evidence of start-up costs related to HB 2630. In addition, the Appellants point to the provisions of HB 2630 which require the OPERS employers to reimburse certain administrative costs related to the new defined contribution system. 74 O.S. Supp. 2014, § 935.6 (E). The Appellants assert, because this is a reimbursement, the assets of the defined benefit plan must have been used to pay those administrative costs up-front. It is not clear from the record if such administrative costs were ever actually paid, the amount of such costs or from what source such costs were or would have been paid. ¶16 The Appellants' arguments focus on whether HB 2630 violated OPLAAA. They allege HB 2630 violated OPLAAA because it was passed as a non-fiscal retirement bill rather than a fiscal retirement bill. The Appellants assert the Legislative Actuary's certification that HB 2630 was a non-fiscal retirement bill was incorrect because HB 2630 creates a new retirement system and, based upon the Appellants' independent analysis, its provisions affect OPERS's costs and funding factors in an unacceptable manner (62 O.S. 2011, § 3103 (5)). ¶17 The dispositive issue, however, rests on a matter of first impression, i.e., whether a violation of OPLAAA is justiciable. The Appellees assert a violation of OPLAAA is non-justiciable, relying on the separation of powers doctrine and asserting OPLAAA is merely a legislative procedural statute created by the Legislature pursuant to its constitutional rulemaking powers (Okla. Const. art. 5, § 30). The Appellees cite Dank v. Benson, 2000 OK 40, 5 P.3d 1088 for support. In Dank the Petitioner, a member of the Oklahoma House of Representatives, sought a declaratory judgment and writ of mandamus asking this Court to construe the phrase "read at length" found in Okla. Const. art. 5, § 34 to mean "reading each and every word of the bill proposed to be finally passed." Dank v. Benson, 2000 OK 40 at ¶3. The Petitioner contested the House of Representatives internal procedures which did not always require a bill to be read at length. Id. This Court determined the Petitioner's action "necessarily implicates the constitutionally-committed authority of each House to adopt its own rules of internal procedure." Id. at ¶6. We noted the framers of our Constitution clearly intended a separation of powers between the executive, legislative and judicial branches of government. Id. We held "only under the most exigent circumstances are we to intercede in the internal affairs of a coordinate branch of government when it exercises a function . . . committed to it by the Constitution." Id. This Court also determined Oklahoma's extant jurisprudence clearly delimits the Court's power over the Legislature, citing Jones v. Freeman, 1943 OK 322, ¶20, 146 P.2d 564, wherein we held: The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution. This Court ultimately did not find the Petitioner's action justiciable because it did not deal with a specific piece of legislation and only concerned a hypothetical situation. Id. at ¶¶7-10. ¶18 The Appellees also cite as persuasive authority a decision from another jurisdiction with a similar issue. In Board of Trustees of Judicial Form Retirement System v. Attorney General of the Commonwealth of Kentucky, 132 S.W.3d 770 (Ky. 2003), the Supreme Court of Kentucky ruled on a statute which contained similar restrictions as those contained in OPLAAA (KRS 6.350). KRS 6.350 prohibits a retirement bill from being reported out of a legislative committee if it increases benefits and is not accompanied by an actuarial analysis. Board of Trustees of Judicial Form Retirement System, 132 S.W.3d at 776. The Attorney General of Kentucky determined House Bill 389 (4), which sought to increase legislative retirement benefits, was void because it was enacted without obtaining the required actuarial analysis. Id. The Supreme Court of Kentucky held KRS 6.350 was procedural in nature and had no constitutional implications. Id. at 777. The Court determined "[s]o long as those rules do not violate some other provision of the Constitution, it is not within our prerogative to approve, disapprove, or enforce them." Id. It noted that while the separation of powers doctrine prohibited it from telling the general assembly what system or rules to enact, it retained jurisdiction to determine whether such systems violated any constitutional mandates. Id. The Supreme Court of Kentucky ultimately found KRS 6.350 had not been violated because an actuarial analysis had been obtained concerning another failed piece of legislation which dealt with the same issue that session. Id. at 778. The analysis the Supreme Court of Kentucky undertook is useful to our present case.14 ¶19 The Appellants contend OPLAAA is not merely an internal procedure of the legislature because: 1) it requires a copy of the certification and/or actuarial analysis be attached to the enrolled bill; and 2) it forbids a retirement bill having a fiscal impact without concurrent funding from taking effect, even if passed by the Governor. The Appellants assert OPLAAA's requirements are therefore both substantive and enforceable and not merely procedural. ¶20 As to the Appellants' first contention, the required attachment of the actuarial certification to the enrolled bill does not change the procedural nature of OPLAAA. Title 62 O.S. 2011, § 3114 provides: The enrolled act resulting from a bill which is subject to the legislative procedures provided by the Oklahoma Pension Legislation Actuarial Analysis Act shall have attached thereto the original or a true and correct copy of all certificates and summaries of actuarial investigations submitted by the Legislative Actuary pursuant to the requirements of the Oklahoma Pension Legislation Actuarial Analysis Act. OPLAAA requires the attachment of the actuarial certification to follow through the entire legislative process. See 62 O.S. 2011, §§ 3105, 3109, and 3110. The obvious intent and purpose behind the actuarial certification is to provide actuarial information to the Legislature. We find no precedent concerning attachments to enrolled bills. This characteristic appears unique to OPLAAA. The actuarial certification is not contained in the four corners of the enrolled bill. It is neither codified nor does it appear as a non-codified law or receive any mention in the Oklahoma Session Laws (2014 Okla. Sess. Laws c. 375). It simply does not become law. The mere fact the certification is attached to the enrolled bill does not change OPLAAA's procedural nature nor our observance of the Legislature's constitutional powers for creating its own rules of procedure (Okla. Const. art. 5, § 30). ¶21 The Appellants' second contention, that OPLAAA forbids a retirement bill having a fiscal impact without concurrent funding from taking effect even if passed by the Governor, was also asserted to show OPLAAA was not merely procedural in nature. This argument is based on the provisions of 62 O.S. 2011, § 3111 (A) which provide in pertinent part: If an enacted bill, including one approved by the Governor, is not concurrently funded as required by this section, then such bill shall not become effective as law. Two provisions of OPLAAA appear to contain more than mere legislative procedure. Section 3111 (above) as well as parts of 62 O.S. 2011, § 3112 which requires the State Board of Equalization to make certain determinations and requires information be provided by executive branch agencies, affect more than just the Legislature and are not merely legislative procedure. However, the issue before us is based on the Legislative Actuary's certification. The Appellants' arguments stem from an assertion the certification was incorrect. The bulk of OPLAAA's fourteen sections, including those concerning the Legislative Actuary's certification, are codified legislative procedure. The fact that some portions of OPLAAA may be more than legislative procedure does not alter our determination that OPLAAA is procedural in nature especially as it pertains to the effect of the Legislative Actuary's certification. ¶22 The pertinent provisions of OPLAAA relevant to this action are part of a codified set of legislative procedures. These codified procedures amount to self-imposed limitations on how retirement legislation is presented and passed during the legislative process. The result is the same if the legislative procedure is adopted by rule or if it is codified. Board of Trustees of Judicial Form Retirement System, 132 S.W.3d at 777. These procedures require certain actuarial information be provided concerning a retirement bill, require this information to follow the bill, and prohibit a retirement bill's continuation through the legislative process if certain conditions are not met. Here, the Legislature obtained the required actuarial certification, thus complying with its own procedures. The Appellants challenge the correctness of the Legislative Actuary's certification. The accuracy of an actuarial certification and investigation required under OPLAAA does not implicate any provision of the Oklahoma Constitution. The information provided by the Legislative Actuary is meant to inform the members of the Legislature about the fiscal impact of a proposed retirement bill. The sufficiency of the Legislative Actuary's certification is purely a legislative concern the province of which this Court will not invade. We hold a violation of OPLAAA, as alleged in this matter, is non-justiciable and cannot be the basis for finding an illegal expenditure of public funds. We affirm the trial court's granting of summary judgment on this issue. ¶23 The Appellants also raised a second taxpayer claim. They assert HB 2630 violated Okla. Const. art. 23, § 12 as well as Internal Revenue Code § 401 (a) (2) (26 U.S.C. § 401 (a) (2)). This claim is independent of any claims related to OPLAAA. The Appellants assert money used to establish the defined contribution system and up-front administrative costs under HB 2630 had to come from the OPERS defined benefit plan assets and were therefore not used for the exclusive benefit of the defined benefit plan members.15 Their argument amounts to a taxpayer claim concerning an illegal expenditure of public funds. As the Appellants note, the trial court did not address this issue in the Journal Entry of Judgment even though the Appellants presented their argument to the trial court. This Court will not exercise appellate jurisdiction to make first instance determinations on disputed questions of fact or law. Oklahoma Public Employees Association v. Oklahoma Dept. of Central Services, 2002 OK 71, ¶21, 55 P.3d 1072 (citing Martin v. Johnson, 1998 OK 127, 975 P.2d 889, 897). Because the trial court did not previously adjudicate this issue we remand this matter to the trial court for further proceedings. THE DECISION OF THE TRIAL COURT IS AFFIRMED AND THIS CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ALL JUSTICES CONCUR FOOTNOTES 1 On March 30, 2016, the Appellants filed a motion requesting oral argument. The Appellants' motion is denied. 2 The new defined contribution system is not applicable to certain correctional officers, probation and parole officers, fugitive apprehension agents, firefighters of the Oklahoma Military Department, district attorneys, assistant district attorneys and other employees of the district attorney's office. Title 74 O.S. Supp. 2014, 935.2 (B). The record reflects SB 2120 (2014 Okla. Sess. Laws c. 419, § 2) amended HB 2630 to also exclude the following: any employees of a county, county elected officials, county hospital, city or town, conservation district, circuit engineering district, and any public or private trust in which a county, city or town participates and is the primary beneficiary. 3 Title 62 O.S. 2011, § 3103 (8) defines a "[r]etirement bill having a fiscal impact" as "any retirement bill creating or establishing a retirement system and any other retirement bill other than a nonfiscal retirement bill." 4 Title 62 O.S. 2011, § 3103 (5) defines a "[n]onfiscal retirement bill" as: [A] retirement bill which does not affect the cost or funding factors of a retirement system or a retirement bill which affects such factors only in a manner which does not: a. grant a benefit increase under the retirement system affected by the bill, b. create an actuarial accrued liability for or increase the actuarial accrued liability of the retirement system affected by the bill, or c. increase the normal cost of the retirement system affected by the bill except as otherwise provided by subparagraph a of this paragraph. A nonfiscal retirement bill shall include any retirement bill that has as its sole purpose the appropriation or distribution or redistribution of monies in some manner to a retirement system for purposes of reducing the unfunded liability of such system or the earmarking of a portion of the revenue from a tax to a retirement system or increasing the percentage of the revenue earmarked from a tax to a retirement system. 5 OPLAAA also provides: Bills certified as being non-fiscal retirement bills may be introduced and proceed like any other legislation. Title 62 O.S. 2011, § 3106. Retirement bills certified as having a fiscal impact may only be introduced in an odd-numbered year and may only be passed in an even-numbered year. Title 62 O.S. 2011, § 3107. However, for unforeseen and emergency situations, retirement bills certified as having a fiscal impact may be introduced, considered and enacted in any odd-numbered year if three-fourths (3/4) of the membership of each House votes to allow it to be considered. Id. A retirement bill certified as having a fiscal impact shall be assigned to a retirement committee and shall not be reported out of committee until a majority of the members of that committee vote to have an actuarial investigation conducted and such investigation has been made. Id. If the committee votes in favor of the investigation, the chair of the committee shall forward a copy of the bill to the Legislative Actuary. Id. The Legislative Actuary has until December 1 of that year to complete an actuarial investigation. Title 62 O.S. 2011, § 3109. Once the investigation is completed, the Legislature may then consider the bill at the next regular legislative session. Title 62 O.S. 2011, § 3110. If a retirement bill having a fiscal impact is enacted by the Legislature and approved by the Governor, it shall only be effective if concurrent funding was provided. Title 62 O.S. 2011, § 3111. If concurrent funding is not provided, even if "approved by the Governor," then the bill shall not become effective as law. Id. The enrolled act (final version) shall also have attached to it a copy of all certificates and summaries of actuarial investigations submitted by the Legislative Actuary. Title 62 O.S. 2011, § 3114. 6 The OPLAAA definition of "retirement bill having a fiscal impact" (62 O.S. 2011, § 3103 (8)), includes a bill that creates a retirement system. The OPLAAA definition of "nonfiscal retirement bill" (62 O.S. 2011, § 3103 (5)) excludes a bill that creates or increases costs, benefits, normal cost and/or actuarial accrued liability of a retirement system. 7 Okla. Const. art. 2, § 15 provides: No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of pecuniary penalties. 8 Okla. Const. art. 5, § 54 provides: The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute. 9 Okla. Const. art. 23, § 12 provides: All the proceeds, assets and income of any public retirement system administered by an agency of the State of Oklahoma shall be held, invested, or disbursed as provided for by law as in trust for the exclusive purpose of providing for benefits, refunds, investment management, and administrative expenses of the individual public retirement system, and shall not be encumbered for or diverted to any other purposes. 10 26 U.S.C. § 401 (a) (2) provides: (a) Requirements for qualification. A trust created or organized in the United States and forming part of a stock bonus, pension, or profit-sharing plan of an employer for the exclusive benefit of his employees or their beneficiaries shall constitute a qualified trust under this section- . . . . (2) if under the trust instrument it is impossible, at any time prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust, for any part of the corpus or income to be (within the taxable year or thereafter) used for, or diverted to, purposes other than for the exclusive benefit of his employees or their beneficiaries (but this paragraph shall not be construed, in the case of a multiemployer plan, to prohibit the return of a contribution within 6 months after the plan administrator determines that the contribution was made by a mistake of fact or law (other than a mistake relating to whether the plan is described in section 401(a) or the trust which is part of such plan is exempt from taxation under section 501(a), or the return of any withdrawal liability payment determined to be an overpayment within 6 months of such determination). 11 12 O.S. 2011, § 1651 provides: District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. The Appellees cite Dean v. State ex rel. Doak, 2012 OK CIV APP 105, ¶12, 292 P.3d 58, which quotes the syllabus in Gordon v. Followell: In order to invoke the jurisdiction of the court under the declaratory judgments act there must be an actual, existing justiciable controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute. 1964 OK 74, ¶0, 391 P.2d 242 (syl. No. 1 by the Court). 12 Okla. Const. art. 5, § 30 provides: Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalty as each House may provide. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same. The yeas and nays of the members of either House on any question, at the desire of one-fifteenth of those present shall be entered upon its journal. Neither House, during the session of the Legislature, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. 13 Title 62 O.S. 2011, § 3113 provides: No provision of the Oklahoma Pension Legislation Actuarial Analysis Act generally and no provision of Section 11 of this act in particular shall: 1. Create or be construed to create a contractual right to a retirement benefit or a contractual right in the provisions of a retirement system law which does not exist independently of the provisions of the Oklahoma Pension Legislation Actuarial Analysis Act; and 2. Impair, alter, or diminish or be construed to impair, alter, or diminish a contractual right to a retirement benefit or a contractual right in the provisions of a retirement system law which exists independently of the provisions of the Oklahoma Pension Legislation Actuarial Analysis Act. 14 The Court noted the issue was one of first impression and its analysis relied heavily on decisions from other jurisdictions. The Court quoted Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d 491, 496 (Iowa 1996), wherein the Supreme Court of Iowa held: It is entirely the prerogative of the legislature, however, to make, interpret, and enforce its own procedural rules, and the judiciary cannot compel the legislature to act in accordance with its own procedural rules so long as constitutional questions are not implicated. Furthermore, the legislature has complete control and discretion whether it shall observe, enforce, waive, suspend, or disregard its own rules of procedure, and violations of such rules are not grounds for the voiding of legislation. Board of Trustees of Judicial Form Retirement System v. Attorney General of the Commonwealth of Kentucky, 132 S.W.3d 770, 778 (Ky. 2003). (Emphasis added). It also cited decisions from several other jurisdictions: Abood v. League of Women Voters, 743 P.2d 333, 336-37 (Alaska 1987) (review of the legislature's adherence to its own procedural rules constitutes a nonjusticiable political question solely within the legislature's province, and non-adherence to rules does not implicate constitutional rights); State v. Gray, 221 La. 868, 60 So. 2d 466, 468 (1952) (legislature's failure to observe procedural rules does not invalidate legislation); State ex rel. La Follettee v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684, 687 (1983) (Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute. This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute.). Board of Trustees of Judicial Form Retirement System, 132 S.W.3d at 777. 15 See ¶15 of this Opinion.

5038cc9a-1227-4cc0-b4df-aea4ab192449

Lee v. Bueno

oklahoma

Oklahoma Supreme Court

LEE v. BUENO2016 OK 97Case Number: 114563Decided: 09/20/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JHONHENRI JABRILLE LEE, Plaintiff/Petitioner, v. DIANA CATALINA SALGADO BUENO, Defendant/Respondent. CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER ¶0 Plaintiff/Petitioner Jhonhenri Jabrille Lee filed suit against Defendant/Respondent Diana Catalina Salgado Bueno after the two were involved in a motor vehicle collision. Petitioner moved for a declaratory judgment holding 12 O.S. 2011 § 3009.1, a statute limiting the admissibility of certain types of evidence, was unconstitutional. The trial court denied Petitioner's motion, but certified its order for interlocutory review. This Court granted certiorari to examine the matter. PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED; ORDER OF THE TRIAL COURT AFFIRMED Rick W. Bisher, Ryan, Bisher, Ryan & Simons, Oklahoma City, Oklahoma, for Plaintiff/Petitioner Rodney D. Stewart and Joshua I. Peach, Stewart Law Firm, Oklahoma City, Oklahoma, for Defendant/Respondent Sarah A. Greenwalt, Assistant Solicitor General, and Mithun S. Mansinghani, Deputy Solicitor General, Oklahoma City, Oklahoma, for the State of Oklahoma Rex Travis and Paul Kouri, Travis Law Office, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Association for Justice Erin A. Renegar and Caroline J. Lewis, Wiggins, Sewell & Ogletree, for Amicus Curiae Oklahoma Association of Defense Counsel COMBS, V.C.J.: ¶1 The primary question before this Court is the constitutionality of 12 O.S. 2011 § 3009.1, a section of the Oklahoma Evidence Code limiting the admissibility of evidence of medical costs in personal injury actions. Plaintiff/Petitioner asserts, broadly, that 12 O.S. 2011 § 3009.1: 1) is an unconstitutional special law prohibited by Okla. Const. art. 5, § 46; 2) denies personal injury plaintiffs access to the courts and their right to a trial by jury under Okla. Const. art. 2, §§ 6 & 19; 3) violates the due process rights of personal injury plaintiffs; 4) violates the separation of powers limitations found in Okla. Const. art. 4, § 1 by attempting to control the rules of evidence; and 5) abolishes the collateral source rule for insured victims of torts. This Court determines Plaintiff/Petitioner has not met the burden required to demonstrate the unconstitutionality of 12 O.S. 2011 § 3009.1, and the statute controls over the collateral source rule to the extent the two might conflict. FACTS AND PROCEDURAL HISTORY ¶2 On or about October 9, 2014, Plaintiff/Petitioner Jhonhenri Jabrille Lee (Lee) was involved in a motor vehicle collision with Defendant/Respondent Diana Catalina Salgado Bueno (Bueno). Lee was driving a vehicle that was struck from behind by a vehicle driven by Bueno at the intersection of NW Expressway and Blackwelder in Oklahoma City, Oklahoma. The collision pushed Lee's vehicle into the vehicle in front of him. After the collision, Lee sought medical treatment for injuries he sustained. At the time of the collision, Lee was insured under a policy with Blue Cross Blue Shield. Lee filed suit against Bueno on July 14, 2015, alleging he sustained injuries for which he incurred property damage, medical expenses, pain and suffering, mental anguish, and was prevented from transacting business, as a result of Bueno's actions and non-actions. Lee claimed damages in excess of $25,000. ¶3 On September 15, 2015, prior to the commencement of discovery, Lee filed a Motion for Declaratory Relief Regarding the Constitutionality of 12 O.S. 2011 § 3009.1. In his motion, Lee asserted he incurred approximately $10,154 in medical expenses for treatment of injuries caused by Bueno's alleged negligence. Lee further asserted expenses totaling $8,112.81 were submitted to his insurer, Blue Cross Blue Shield, who paid $2,845.11. Lee argued in his motion that 12 O.S. 2011 § 3009.1 is: 1) unconstitutional as a special law in violation of Okla. Const. art. 5, § 46; 2) unconstitutional because it violates his right to due process and a trial by jury; and 3) because it is unconstitutional, the collateral source rule should apply. ¶4 Bueno filed a Response and Objection to Plaintiff's Motion for Declaratory Relief on October 16, 2015. Bueno challenged both the merits of Lee's constitutionality claims and also asserted that Lee's motion was premature. The trial court denied Lee's request for declaratory relief in a ruling memorialized on October 29, 2015, and granted Lee's oral request for certification of its order for immediate appeal, over Bueno's objection. The trial court filed its certification order on December 7, 2015. ¶5 Lee filed a Petition for Certiorari Certified Interlocutory Order on December 29, 2015. This Court granted Lee's petition on February 16, 2016, and the cause was assigned to this office. On February 18, 2016, the Attorney General gave notice of his intent to exercise his right to be heard on the constitutional issues presented. The Attorney General filed his brief on April 4, 2016. This Court also granted the requests of the Oklahoma Association for Justice and the Oklahoma Association of Defense Counsel to file briefs as Amici Curiae. Their briefs were filed on March 28, 2016, and April 4, 2016, respectively. STANDARD OF REVIEW ¶6 At issue in this cause is the constitutionality and application of 12 O.S. 2011 § 3009.1. Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review. Butler v. Jones ex rel. State ex rel. Okla. Dep't of Corr., 2013 OK 105, ¶5, 321 P.3d 161; Gilbert v. Sec. Fin. Corp. of Okla., Inc., 2006 OK 58, ¶2, 152 P.3d 165; Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶8, 33 P.3d 302. In conducting a de novo review of a trial court's legal rulings, this Court possesses plenary, independent, and non-deferential authority to examine the issues presented. Crownover v. Keel, 2015 OK 35, ¶12, 357 P.3d 470; Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶10, 306 P.3d 544; Martin v. Aramark Servs., Inc., 2004 OK 38, ¶4, 92 P.3d 96. ¶7 In considering the constitutionality of a statute, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality. Douglas v. Cox Ret. Properties, Inc., 2013 OK 37, ¶3, 302 P.3d 789; Thomas v. Henry, 2011 OK 53, ¶8, 260 P.3d 1251. Every presumption is to be indulged in favor of a statute's constitutionality. Douglas, 2013 OK 37, ¶3; Thomas, 2011 OK 53, ¶8; Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶3, 984 P.2d 200. A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie, 2010 OK 51, ¶15, 253 P.3d 38; Kimery v. Public Serv. Co. of Oklahoma, 1980 OK 187, ¶6, 622 P.2d 1066; Matter of Daniel, Deborah and Leslie H., 1979 OK 33, ¶10, 591 P.2d 1175. If two possible interpretations of a statute are possible, only one of which would render it unconstitutional, a court is bound to give the statute an interpretation which will render it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. Fent, 1999 OK 64, ¶3; Gilbert Cent. Corp. v. State, 1986 OK 6, ¶7, 716 P.2d 654; Okla. State Election Bd. v. Coats, 1980 OK 65, ¶12, 610 P.2d 776. ¶8 The nature of this Court's inquiry is limited to constitutional validity, not policy. It is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition. Douglas, 2013 OK 37, ¶3; In re Assessments for Year 2005 of Certain Real Property Owned by Askins Properties, L.L.C., 2007 OK 25, ¶12, 161 P.3d 303; Fent, 1999 OK 64, ¶4. A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government. Douglas, 2013 OK 37, ¶3; Edmondson v. Pearce, 2004 OK 23, ¶17, 91 P.3d 605; Fent, 1999 OK 64, ¶4. I. TITLE 12 O.S. 2011 § 3009.1 IS NOT AN UNCONSTITUTIONAL SPECIAL LAW PROHIBITTED BY OKLA. CONST. ART. 5, § 46. ¶9 At issue in this cause is 12 O.S. 2011 § 3009.1, which provides: A. Upon the trial of any civil case involving personal injury, the actual amounts paid for any doctor bills, hospital bills, ambulance service bills, drug bills and similar bills for expenses incurred in the treatment of the party shall be the amounts admissible at trial, not the amounts billed for expenses incurred in the treatment of the party. If, in addition to evidence of payment, a signed statement acknowledged by the medical provider or an authorized representative that the provider in consideration of the patient's efforts to collect the funds to pay the provider, will accept the amount paid as full payment of the obligations is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. Provided, if a medical provider has filed a lien in the case for an amount in excess of the amount paid, then bills in excess of the amount paid but not more than the amount of the lien shall be admissible. If no payment has been made, the Medicare reimbursement rates in effect when the personal injury occurred shall be admissible if, in addition to evidence of nonpayment, a signed statement acknowledged by the medical provider or an authorized representative that the provider, in consideration of the patient's efforts to collect the funds to pay the provider, will accept payment at the Medicare reimbursement rate less cost of recovery as provided in Medicare regulations as full payment of the obligation is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. Provided, if a medical provider has filed a lien in the case for an amount in excess of the Medicare rate, then bills in excess of the amount of the Medicare rate but not more than the amount of the lien shall be admissible. B. This section shall apply to civil cases involving personal injury filed on or after November 1, 2011. Title 12 O.S. 2011 § 3009.1 serves to limit certain types of evidence admissible by parties in the trial of any civil case involving personal injury. Functionally, 12 O.S. 2011 § 3009.1 limits admissibility of evidence concerning medical costs in personal injury litigation to what has actually been paid or is owed for a party's medical treatment, rather than the amount billed for that treatment.1 ¶10 Though Title 12 O.S. 2011 § 3009.1 is the version of the statute applicable in this cause, it is not the current version of the statute. Section 3009.1 was amended by 2015 Okla. Sess. Laws c. 337, § 1, eff. November 1, 2015. The current provision, 12 O.S. Supp. 2015 § 3009.1, provides: A. Upon the trial of any civil action arising from personal injury, the actual amounts paid for any services in the treatment of the injured party, including doctor bills, hospital bills, ambulance service bills, drug and other prescription bills, and similar bills shall be the amounts admissible at trial, not the amounts billed for such expenses incurred in the treatment of the party. If, in addition to evidence of payment, a party submits a signed statement acknowledged by the medical provider or an authorized representative or sworn testimony that the provider will accept the amount paid as full payment of the obligations, the statement or testimony shall be admitted into evidence. The statement or testimony shall be part of the record as an exhibit but need not be shown to the jury. If a medical provider has filed a lien in the case for an amount in excess of the amount paid, then the bills in excess of the amount paid, but not more than the amount of the lien, shall be admissible. B. If no payment has been made, the Medicare reimbursement rates in effect when the personal injury occurred, not the amounts billed, shall be admissible if, in addition to evidence of nonpayment, a party submits a signed statement acknowledged by the medical provider or an authorized representative or sworn testimony that the provider will accept payment at the Medicare reimbursement rate less cost of recovery as provided in Medicare regulations as full payment of the obligation. The statement or testimony shall be admitted into evidence and shall be part of the record as an exhibit but need not be shown to the jury. If a medical provider has filed a lien in the case for an amount in excess of the Medicare rate, then the bills in excess of the amount of the Medicare rate, but not more than the amount of the lien, shall be admissible. C. If no bills have been paid, or no statement acknowledged by the medical provider or sworn testimony as provided in subsections A and B of this section is provided to the opposing party and listed as an exhibit by the final pretrial hearing, then the amount billed shall be admissible at trial subject to the limitations regarding any lien filed in the case. D. This section shall apply to civil actions arising from personal injury filed on or after November 1, 2015. The Legislature clearly expressed its intent that the changes should not be applied retroactively, as 12 O.S. Supp. 2015 § 3009.1(D) provides "[t]his section shall apply to civil actions arising from personal injury filed on or after November 1, 2015." As Lee's cause was filed before that date, 12 O.S. 2011 § 3009.1 is the applicable statute. However, it is worth noting at this juncture that 12 O.S. Supp. 2015 § 3009.1(C) is a substantive change to the statute that permits the admission of the amount billed at trial if no bills have been paid or the statement or sworn testimony provided for in 12 O.S. Supp. 2015 § 3009.1(A) and (B) are not provided by the final pretrial hearing. ¶11 Lee asserts 12 O.S. 2011 § 3009.1 is an unconstitutional special law in violation of Okla. Const. art. 5, § 46, which provides in pertinent part: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: … Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate …. Okla. Const. art. 5, § 46 specifically prohibits the Legislature from enacting special laws dealing with the subject areas it specifies. Wall v. Marouk, 2013 OK 36, ¶4, 302 P.3d 775. See Reynolds v. Porter, 1988 OK 88, ¶17, 760 P.2d 816. The terms of Okla. Const. art. 5, § 46 command that court proceedings be symmetrical and apply equally across the board for an entire class of similarly situated persons or things. Zeier v. Zimmer, Inc., 2006 OK 98, ¶13, 152 P.3d 861; State ex rel. Macy v. Bd. of County Comm'rs of Okla. County, 1999 OK 53, ¶14, 986 P.2d 1130. See Reynolds, 1988 OK 88, ¶14. ¶12 When a law is challenged under Okla. Const. art. 5, §46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things. Zeier, 2006 OK 98, ¶13; Reynolds, 1988 OK 88, ¶17.2 This Court set out the criteria for determining a prohibited special law under Okla. Const. art. 5, § 46 in more detail in Wall v. Marouk, where we explained: A special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject of the law. A law is special if it confers particular privileges or imposes peculiar disabilities or burdensome conditions in the exercise of a common right on a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law. Special laws apply to less than the whole of a class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances, and thus do not have a uniform operation. The shortcoming of a special law is that it does not embrace all the classes that it should naturally embrace, and that it creates preference and establishes inequality. It applies to persons, things, and places possessed of certain qualities or situations and excludes from its effect other not dissimilar persons, things, or places. 2013 OK 36, ¶5, 302 P.3d 775 (footnotes omitted). ¶13 Lee argues the general class of which he is a member is the class of plaintiffs filing a claim based on bodily injury under 23 O.S. 2011 § 61.2(A), which provides: "[i]n any civil action arising from a claimed bodily injury, the amount of compensation which the trier of fact may award a plaintiff for economic loss shall not be subject to any limitation." The core of Lee's argument is that 12 O.S. 2011 § 3009.1 is an unconstitutional special law because it further subdivides this general class of plaintiffs filing a claim based on bodily injury into classes that receive differential treatment based, effectively, on their insurance status or the decisions made by their medical treatment providers. Lee argues 12 O.S. 2011 § 3009.1 places restrictions on subclasses of plaintiffs filing bodily injury claims by prohibiting those classes from submitting the full amount of their medical bills. ¶14 The effects of 12 O.S. 2011 § 3009.1 are better understood by examining its component parts in sequence. The first portion of 12 O.S. 2011 § 3009.1(A) provides: Upon the trial of any civil case involving personal injury, the actual amounts paid for any doctor bills, hospital bills, ambulance service bills, drug bills and similar bills for expenses incurred in the treatment of the party shall be the amounts admissible at trial, not the amounts billed for expenses incurred in the treatment of the party. This provision appears straightforward on the surface, and limits all parties in a personal injury action to admitting evidence of the amount paid for medical services, rather than the amount billed. Differential outcomes, however, can arise in the amounts admissible. For example: an injured party is insured, and their insurer satisfies part, but not all, of their medical bill. If their medical provider is contractually obligated to accept what the insurer paid as payment in full, the party is prohibited from admitting the full amount of the original bill into evidence, and is limited to only the amount their insurer paid. In contrast, an uninsured party who paid the full amount of their medical bill would be permitted to admit that amount into evidence. ¶15 The next portion of 12 O.S. 2011 § 3009.1(A) provides: If, in addition to evidence of payment, a signed statement acknowledged by the medical provider or an authorized representative that the provider in consideration of the patient's efforts to collect the funds to pay the provider, will accept the amount paid as full payment of the obligations is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. Per this provision, if a party's medical provider is willing to accept less than the amount originally billed in payment, evidence that they will do so is admissible in addition to the amount paid. 12 O.S. 2011 3009.1(A) then states: Provided, if a medical provider has filed a lien in the case for an amount in excess of the amount paid, then bills in excess of the amount paid but not more than the amount of the lien shall be admissible. While it still does not allow parties to admit the amount originally billed, this provision allows parties to admit evidence of the amount they actually owe their medical treatment provider, in addition to the amount paid. ¶16 Title 12 O.S. 2011 3009.1(A) then states: If no payment has been made, the Medicare reimbursement rates in effect when the personal injury occurred shall be admissible if, in addition to evidence of nonpayment, a signed statement acknowledged by the medical provider or an authorized representative that the provider, in consideration of the patient's efforts to collect the funds to pay the provider, will accept payment at the Medicare reimbursement rate less cost of recovery as provided in Medicare regulations as full payment of the obligation is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. This provision arguably applies to a different subclass of parties: those whose medical providers are willing to accept the Medicare reimbursement rate in lieu of the full amount billed. Those parties are then limited to admitting evidence of those rates and the willingness of the provider to accept them. Assuming the reimbursement rate is lower than a party's medical bill, this would potentially lower the amount of damages reflected in evidence. Finally, 12 O.S. 2011 3009.1(A) provides: Provided, if a medical provider has filed a lien in the case for an amount in excess of the Medicare rate, then bills in excess of the amount of the Medicare rate but not more than the amount of the lien shall be admissible. Once again, the statute makes an exception when a provider has filed a lien, allowing parties to admit evidence of the additional amount they owe. ¶17 Lee argues that these conditions on admissibility create subclasses based on criteria that individual plaintiffs like him have no control over: namely, the decisions of their insurers and medical treatment providers. He argues 12 O.S. 2011 3009.1 punishes personal injury claimants that obtain insurance by preventing them from submitting evidence of, and therefore obtaining, the full measure of their damages. ¶18 Lee relies on prior decisions of this Court in support of his argument that 12 O.S. 2011 § 3009.1 is an unconstitutional special law. The most recent of these cases is Montgomery v. Potter, 2014 OK 118, 341 P.3d 660. In Montgomery, this Court considered a special law challenge to a statute preventing uninsured motorists from recovering certain non-economic damages such as pain and suffering in civil actions arising from automobile accidents. 2014 OK 118, ¶¶3-8. The statute at issue in that cause, 47 O.S. 2011 § 7-116(A), provided: Except as provided in subsection B of this section, in any civil action to recover damages arising out of an accident involving the operation of a motor vehicle or for any claim against the motor vehicle liability insurance coverage of another party, the maximum amount that a plaintiff or claimant may receive, if the plaintiff or claimant is not in compliance with the Compulsory Insurance Law, shall be limited to the amount of medical costs, property damage, and lost income and shall not include any award for pain and suffering. The plaintiffs in Mongomery argued the statute was an impermissible special law because it affected only victims of auto accidents who were uninsured, carving out this special class from the more general class of all victims of auto accidents and subjecting them to differential treatment. 2014 OK 118, ¶5. ¶19 This Court agreed. We noted the general class of similarly situated plaintiffs in cases of automobile negligence, as well as the class identified in 23 O.S. 2011 § 61, which allowed all plaintiffs with bodily injury to recover for pain and suffering. Montgomery, 2014 OK 118, ¶7. We determined 47 O.S. 2011 § 7-116 held uninsured drivers to different and much stricter standards than other plaintiffs in automobile negligence cases. Montgomery, 2014 OK 118, ¶7. Specifically, this Court determined: Section 7-116 creates an impermissible special class by restricting damages in civil negligence actions for victims who also happen to be uninsured drivers while the general class of automobile accident victims is not prevented from the recovery of damages for pain and suffering. Because 47 O.S.2011, § 7-116 impacts less than an entire class of similarly situated claimants it is under-inclusive and, therefore, we find it to be an unconstitutional special law prohibited by art. 5, § 46 of the Oklahoma Constitution. ¶20 Lee also relies heavily on two related cases decided by this Court concerning the need for an expert affidavit attached to petitions for medical negligence. In Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, this Court considered 63 O.S. Supp. 2003 § 1-1708.1E and determined that the requirement for an affidavit of merit was unconstitutional as a violation of Okla. Const. art. 5, § 46. This Court noted the affidavit of merit requirement immediately divided tort victims alleging negligence into two classes: those pursuing a cause of action in negligence generally and those naming medical professionals specifically as defendants. Zeier, 2006 OK 88, ¶14. ¶21 The affidavit requirement this Court examined in Zeier created a specific procedural hurdle for a subclass carved out of the general class of negligence plaintiffs: The professional affidavit requirement of 63 O.S. Supp. 2003 §1-1708 .1E has no counterpart in the general law of tort claims. Only medical malpractice claimants are burdened with the necessity of obtaining a medical opinion to support the filing of a petition in the district court. Furthermore, only medical malpractice defendants, not negligence defendants generally, are granted what is a mandated discovery privilege before a petition for recovery will ever be heard -- although the statute prohibits the admitting of the expert's opinion at trial or its use in discovery, it allows the defendant to obtain a copy of the same. This is precisely the vice that the Oklahoma Constitution and this Court have long guarded against -- the granting of preference to some and the denial of equality to a class. Zeier, 2006 OK 88, ¶17 (footnotes omitted). The affidavit requirement altered procedural requirements for only a small subset of similarly-situated negligence plaintiffs. By doing so it violated one of the important underlying goals of Okla. Const. art. 5, § 46: guaranteeing uniformity of procedure in the operating of Oklahoma's legal institutions. This Court explained: By mandating uniformity of procedure, the terms of art. 5, §46 command that all citizens of the state shall have equal access to legal institutions for application of the general ordinary forensic process. Medical malpractice plaintiffs constitute nothing more than a subset of parties pursuing a cause under negligence standards. Because 63 O.S. Supp. 2003 §1-1708.1E impacts less than an entire class of similarly situated claimants -- medical malpractice claimants are severed from all tort victims with the possibility of the creation of a third class if the doctrine of res ipsa loquitor applies, the statute is underinclusive and special. We determine that the statute violates the absolute and unequivocal prohibition of the Oklahoma Constitution art. 5, §46 against the passing of special laws regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. Zeier, 2006 OK 88, ¶18 (emphasis added) (footnotes omitted). ¶22 This Court examined a later incarnation of the affidavit requirement in Wall v. Marouk, 2013 OK 36, 302 P.3d 775. As in Zeier, this Court determined the affidavit requirement created two classes out of negligence litigants: those who file a cause of action for negligence generally and those who file a cause of action for professional negligence. Wall, 2013 OK 36, ¶4. This Court held: Title 12 O.S. 2011 §19 creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors. In doing so, it places an out of the ordinary enhanced burden on these subgroups to access the courts by requiring victims of professional misconduct to obtain expert review in the form of an affidavit of merit prior to proceeding, and it requires the victims of professional misconduct to pay the cost of expert review. It does establish an impermissible special law regulating the practice of judicial proceedings before the courts. Wall, 2013 OK 36, ¶6. ¶23 These prior decisions, however, are distinguishable from this cause. The laws in the cases discussed above shared a common characteristic that resulted in their constitutional infirmity: they carved out a subset of litigants from a general class that was then subjected to differential treatment. In Montgomery, the subclass was uninsured motorists. In Zeier and Wall it was those pursuing medical negligence claims. In contrast, 12 O.S. 2011 § 3009.1 does not operate on a such a subclass. ¶24 Title 12 O.S. 2011 § 3009.1 applies uniformly to all personal injury claimants. Contrary to Lee's assertions, it does not specifically target a particular subclass, such as litigants with insurance coverage, in order to limit their recovery. Instead, the statute as a whole operates to ensure all members of the class are permitted only to admit into evidence the amounts actually paid or owed for medical services. The effect of 12 O.S. 2011 § 3009.1 is to ensure uniformity of outcome within the class regardless of circumstances by preventing a party from admitting into evidence amounts they did not have to pay and thus obtaining a potentially greater amount in damages for medical services than the amount actually paid or owed. Title 12 O.S. 2011 § 3009.1 takes into account various circumstances that might differentiate members of the general class. It does this not to create preference and establish inequality, See Wall, 2013 OK 36, ¶5, but specifically to prevent it. ¶25 Lee also argues 12 O.S. 2011 § 3009.1 is arbitrary and capricious.3 However, Lee does not argue that limitations on the admissibility of evidence affecting the general class of all personal injury plaintiffs are somehow arbitrary or capricious. Rather, his assertion that 12 O.S. 2011 § 3009.1 is arbitrary and capricious rests on the same argument we reject above: that 12 O.S. 2011 § 3009.1 creates impermissible subclasses based on criteria such as insurance coverage that are then subjected to unfair treatment. Title 12 O.S. 2011 § 3009.1 ensures a uniform effect on personal injury plaintiffs, regardless of underlying circumstances: it limits a party's ability to admit evidence of medical damages to amounts actually paid or owed, rather than billed. ¶26 Title 12 O.S. 2011 § 3009.1 is neither arbitrary nor unreasonable, and does not target for different treatment less than an entire class of similarly situated persons or things. It is not an unconstitutional special law pursuant to Okla. Const. art. 5, § 46. See Montgomery, 2014 OK 118, ¶7; Wall, 2013 OK 36, ¶5; Zeier, 2006 OK 98, ¶13; Reynolds, 1988 OK 88, ¶17. II. TITLE 12 O.S. 2011 § 3009.1 DOES NOT VIOLATE THE RIGHT OF PERSONAL INJURY PLAINTIFFS TO ACCESS THE COURTS, GUARANTEED BY OKLA. CONST. ART. 2, § 6, OR THEIR RIGHT TO TRIAL BY JURY, GUARANTEED BY OKLA. CONST. ART. 2, § 19. ¶27 Lee makes broad assertions that 12 O.S. 2011 § 3009.1 violates the right of personal injury plaintiffs to access the courts, guaranteed by Okla. Const. art. 2, § 64 , and their right to trial by jury, guaranteed by Okla. Const. art. 2, § 19.5 Lee quotes Zeier, where this Court stated that "legislation cannot be used to deny the constitutional guarantee of court access" and also that "[a]ccess to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities." 2006 OK 98, ¶¶25-26. ¶28 Lee's argument amounts to a claim that any statutory provision that might affect a limitation on a jury's ability to award damages somehow violates Okla. Const. art. 2, §§ 6 & 19. However, he points to no prior decision of this Court, or other authority, in support of this argument. His reliance on Zeier concerning Okla. Const. art. 2, § 6 is misplaced, as it concerned a specific affidavit only a subset of negligence plaintiffs were required to obtain before they could proceed with their claim, thereby placing a costly and discriminatory bar against accessing the courts applicable only to one subclass of plaintiff. See Zeier, 2006 OK 98, ¶¶26-28. ¶29 Further, this Court has consistently ruled that Okla. Const. art. 2 § 6 operates as a mandate to the judiciary rather than a limitation on the Legislature. Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶18, 237 P.3d 181; Rivas v. Parkland Manor, 2000 OK 68, ¶18, 12 P.3d 452; Rollings v. Thermodyne Industries, Inc., 1996 OK 6, ¶9, 910 P.2d 1030. "In other words, Section 6 was intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief." Rollings, 1996 OK 6, ¶9. ¶30 Okla. Const. art. 2, § 6 has most often been used to insure, regardless of status, that equal access to court is permitted. Rollings¸ 1996 OK 6, ¶10. See Zeier, 2006 OK 98, ¶25 ("The clear language of art. 2, §6 requires that the courts must be open to all on the same terms without prejudice."). Title 12 O.S. 2011 § 3009.1 in no way inhibits access to the courts. It does not arbitrarily prevent any claimant from filing a personal injury action and subjects all personal injury claimants to similar evidentiary restrictions that place no meaningful barrier before their quest for a remedy. Unlike in Zeier, no subclass of litigants are being entirely denied the ability to pursue their claim in the courts due to a costly procedural requirement. Lee has not met his burden of showing 12 O.S. 2011 § 3009.1 violates Okla. Const. art. 2, § 6. ¶31 Similarly, Lee cites to no authority that actually supports his argument that statutory limitations on the admissibility of evidence amount to a denial of a litigant's right to a trial by jury guaranteed by Okla. Const. art. 2, § 19. Instead, Lee is misconstruing precedent holding that recovery of damages is a question for the jury. Lee cites Estrada v. Port City Properties, Inc., where this Court held: The recovery of damages is a jury question. Broad discretion is given to the jury to determine the amount of damages. Where the amount of the verdict is within the limits of the evidence, we will not invade the jury's province and substitute our judgment as a fact-finding tribunal. Jury awards will not be reduced unless it appears that the damage award was not supported by the evidence and was so excessive as to appear to have been given under the influence of passion or prejudice. 2011 OK 30, ¶35, 258 P.3d 495. Lee interprets Estrada to mean a jury always has absolute and final control over the amount of damages, which is simply not the case. For example, in Gilbert v. Security Finance Corp. of Okla., Inc., 2006 OK 58, ¶46, 152 P.3d 165, this Court discussed Oklahoma's punitive damages statute, 23 O.S. Supp. 2002 § 9.1. We explained: Title 23, section 9.1 provides far more restraints on jury discretion than required by the Due Process Clause of the Fourteenth Amendment. Oklahoma appellate courts review punitive damages awards to determine whether an award is reasonably related to the defendant's conduct and related to the cause and extent of the injuries. This Court has not hesitated to reverse a punitive award when it is "excessive as a result of the 'passion, prejudice, or improper sympathy' of the jury." Our review of a punitive damages award for excessiveness certainly meets the review required under the Due Process Clause. Gilbert, 2006 OK 58, ¶46 (footnotes omitted). ¶32 The recognition that the jury is the trier of fact and its determinations on the amount of damages are subject to a certain amount of deference by a reviewing court on appeal should not be taken to imply that the Legislature lacks authority under Okla. Const. art. 2, § 19 to place limits on the types of evidence admissible in civil proceedings. Indeed, that is the very purpose of Oklahoma Evidence Code, 12 O.S. § 2101 et seq. III. 12 O.S. 2011 § 3009.1 DOES NOT VIOLATE THE DUE PROCESS GUARANTEES OF OKLA. CONST. ART. 2, § 7. ¶33 The Oklahoma Constitution guarantees the right to due process. The relevant provision is Okla. Const. art. 2, § 7, which provides: "[n]o person shall be deprived of life, liberty, or property, without due process of law."6 Lee asserts that 12 O.S. 2011 § 3009.1 violates the due process protections of the Oklahoma Constitution by: 1) limiting the rights of certain plaintiffs to submit evidence; 2) depriving certain categories of plaintiffs of property interests without hearing or notice because it limits their right to submit evidence; and 3) provides for unequal treatment under the law. A. Title 12 O.S. 2011 § 3009.1 does not violate Okla. Const. art. 2., § 7 by placing limitations on the admissibility of evidence. ¶34 Lee argues that 12 O.S. 2011 § 3009.1 violates the Okla. Const. art. 2, § 7 by limiting the evidence that insured plaintiffs, specifically, are allowed to present. As discussed previously, this is an incorrect characterization of 12 O.S. 2011 § 3009.1, which limits all personal injury plaintiffs to submitting evidence of medical expenses they have paid or will be liable for. This argument is functionally the same as that raised in his special law claim, discussed previously. ¶35 Regardless, Lee relies on a single prior decision of this Court as his only authority for the proposition that a statutory limitation on the admissibility of evidence violates Okla. Const. art. 2, § 7. Specifically, Lee quotes Jackson v. Indep. Sch. Dist. No. 16 of Payne Cnty., 1982 OK 74, ¶10, 648 P.2d 26, where this Court described the procedural guarantees of due process: Procedural due process of law contemplates a fair and open hearing before a legally constituted court or other authority with notice and an opportunity to present evidence and argument, representation by counsel, if desired, and information concerning the claims of the opposing party with reasonable opportunity to controvert them. While due process certainly includes the opportunity to present evidence as an important component of the right to be heard, Jackson does not stand for the proposition that any statutory rule of evidence determining what is and is not admissible somehow violates due process. B. Lee's assertion that 12 O.S. 2011 § 3009.1 deprives him, and others similarly situated, of a vested property interest with no notice or hearing in violation of Okla. Const. art. 2., § 7 is unsupported by argument or authority. ¶36 Lee also asserts 12 O.S. 2011 § 3009.1 offends due process by depriving certain categories of plaintiffs of their property interests without hearing or notice. Specifically, Lee asserts: An individual with insurance pays premiums to ensure coverage in the event of an accident causing the need for medical and other expenses. Under §3009.1, an insured plaintiff is only entitled to "the actual amount paid" for any medical treatment instead of the amounts billed if the medical provider signs a statement "that the provider will accept the amount paid as full payment of the obligations." 12 O.S. 3009.1(a). Thus, the amount of medical bills is often significantly reduced under the statute. Yet this reduction in costs does not then go to the injured party, who has paid premiums monthly to ensure these bills would be paid. Instead, the benefit of these premiums, the difference between the incurred and the actual billed amount, goes directly to the alleged guilty party. Brief in Chief of Petitioner Jhonhenri Jabrille Lee, p. 20. Essentially, Lee asserts that he and others similarly situated have a vested and constitutionally-protected property interest in the difference between the amounts insurers are initially billed vs. the amounts the insurers paid on their behalf because of premiums paid for insurance coverage. ¶37 Lee did not raise this argument before the trial court.7 Further, aside from authority noting constitutional protection of vested property interests, Lee provides no citation to any authority supporting his claim that he possesses a vested property interest deprived by 12 O.S. 2011 § 3009.1. Neither counsel nor pro se litigants have a right to place upon this court the researching burden and consume its time in a search for authorities that would support their argument. Fent v. Contingency Review Bd., 2007 OK 27, ¶23 n. 59, 163 P.3d 512. Claims to error for which there is no support in argument and authority are deemed abandoned. Fent, 2007 OK 27, n. 58; Graham v. Keuchel, 1993 OK 6, n. 3, 847 P.2d 342; Holbert v. Echeverria, 1987 OK 99, n. 4, 744 P.2d 960 (superseded by statute on other grounds). C. Title 12 O.S. 2011 § 3009.1 does not subject litigants to unequal treatment under the law in violation of the due process guarantees of Okla. Const. art. 2, § 7. ¶38 Lee also asserts that 12 O.S. 2011 § 3009.1 offends due process by failing to provide equal treatment under the law. Lee cites this Court's opinion in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 86, as his only authority for this proposition. In that cause, this Court noted Okla. Const. art. 2, § 7 contains an anti-discrimination component that affords protection against unreasonable or unreasoned classifications serving no important governmental objective. Zeier, 2006 OK 98, n. 8. As Lee admits in his brief in chief, this is merely another facet of his special law argument that insured plaintiffs are somehow treated differently under 12 O.S. 2011 § 3009.1 in a manner that is arbitrary and unreasonable. As discussed in Section I of this Opinion, supra, such is simply not the case. IV. 12 O.S. 2011 § 3009.1 DOES NOT VIOLATE THE SEPARATION OF POWERS PROVISION OF OKLA. CONST. ART. 4, § 1. ¶39 Lee argues that because 12 O.S. 2011 § 3009.1 promulgates a rule of evidence and dictates what is and is not admissible evidence relating to the value of medical expenses, it invades the fact-finding function of the judiciary and is therefore unconstitutional as a violation of Okla. Const. art. 4, § 1. Lee's argument in this regard is without merit. ¶40 Okla. Const. art. 4, § 1 defines the distinct departments of government in the State of Oklahoma, and provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. Okla. Const. art. 4, § 1 divides the powers of state government into three separate departments--Legislative, Executive, and Judicial--and prohibits the departments from exercising powers belonging to the others. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶20, 163 P.3d 557. In Yocum v. Greenbriar Nursing Home, this Court explained further: The separation-of-powers doctrine interdicts legislative intrusion upon the functions assigned to the judiciary by the constitution. Legislative power is mainly confined to making law, while the judiciary is invested primarily with an adjudicative function - the authority to hear and determine forensic disputes. A legislative removal of the discretionary component in adjudicative process is a usurpation of the courts' freedom that is essential to the judiciary's independence from the other two branches. 2005 OK 27, ¶13, 130 P.3d 213 (footnotes omitted). In sum, the power to adjudicate is the power to determine questions of fact or law framed by a controversy and this power is exclusively a judicial power. Conaghan, 2007 OK 60, ¶20; Yocum, 2005 OK 27, ¶13. ¶41 This Court has invalidated legislation for encroaching upon the adjudicative authority of the judiciary when it predetermines an adjudicative fact. See Conaghan, 2007 OK 60, ¶22. However, the judiciary's constitutional prerogatives concerning fact-finding and adjudication should not be confused with the legislative prerogative to determine the rules of evidence, which this Court has directly recognized: "[a]s to legislative authority to declare rules of evidence, and that same are subject to modification or change is unquestioned, no person having a vested right in a rule of evidence." Polk v. Oklahoma Alcoholic Beverage Control Bd., 1966 OK 224, ¶18, 420 P.2d 520. Accordingly, 12 O.S. 2011 § 3009.1 is not unconstitutional as a violation of Okla. Const., art. 4, § 1. V. TO THE LIMITED EXTENT 12 O.S. 2011 § 3009.1 MODIFIES THE COLLATERAL SOURCE RULE, IT CONTROLS OVER THE COMMON LAW. ¶42 Lee asserts 12 O.S. 2011 § 3009.1 abolishes the collateral source rule for insured victims and is therefore invalid. Oklahoma adopted the collateral source rule through the operation of 23 O.S. 2011 § 61, which provides: For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not. As this Court explained in Denco Bus Lines v. Hargis, 1951 OK 11, ¶26, 229 P.2d 560: Under our statute upon commission of a tort it is the duty of the wrongdoer to answer for the damages wrought by his wrongful act, and that is measured by the whole loss so caused. Under the statute the receipt of compensation by the injured party from a collateral source wholly independent of the wrongdoer would not operate to lessen the damages recoverable from the person causing the injury. Pursuant to the collateral source rule, compensation given to the injured party from a collateral source wholly independent of the wrongdoer does not operate to lessen the damages recoverable from the person who causes the injury. Mariani v. State ex rel. Okla. State University, 2015 OK 13, ¶8, 384 P.3d 194; Blythe v. University of Okla., 2003 OK 115, ¶7, 82 P.3d 1021; Denco, 1951 OK 11, ¶26. ¶43 Under the collateral source rule, the fact that some of Lee's medical care might be paid for by his insurer does not entitle Bueno to a reduction in potential damages by that amount. To this extent, 12 O.S. 2011 § 3009.1 is in accord with the common law collateral source rule because it does not prevent admission into evidence of the amount actually paid or owed for medical care, regardless of whether the amount was paid by the injured party or by some other entity on the party's behalf, such as an insurer. ¶44 However, Lee argues the collateral source rule protects more than damages in the amount an injured party actually pays or owes for medical treatment. He argues the rule should in fact be extended to protect an injured party's ability to recover the full amount the injured party is billed for treatment, regardless of whether that amount is later reduced through negotiation, Medicaid write offs, or a contract between the provider and an insurer. Simply put, Lee argues: 1) the collateral source rule should protect an injured party's ability to collect from a defendant amounts they were billed, yet never had to actually pay due to some later reduction; and 2) 12 O.S. 2011 § 3009.1 interferes with the collateral source rule by preventing an injured party from doing so. ¶45 Whether the ability to recover in damages the difference existing between the amount billed and the amount actually paid or owed due to, for example, Medicaid write-offs, is covered by the common law collateral source rule is debatable. It appears to be a question this Court has hitherto left unanswered. Decisions in other jurisdictions, however, are instructive. ¶46 Some courts have refused to apply the collateral source rule to an amount billed, but not paid or owed, because it does not fit within the definition of damages. For example, in Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 548, 257 P.3d 1130 (Cal. 2011), the Supreme Court of California determined the collateral source rule did not protect an injured plaintiff's ability to recover an amount billed by a provider, but for which the plaintiff never incurred liability. The court determined: The [collateral source] rule, however, has no bearing on amounts that were included in a provider's bill but for which the plaintiff never incurred liability because the provider, by prior agreement, accepted a lesser amount as full payment. Such sums are not damages the plaintiff would otherwise have collected from the defendant. They are neither paid to the providers on the plaintiff's behalf nor paid to the plaintiff in indemnity of his or her expenses. Because they do not represent an economic loss for the plaintiff, they are not recoverable in the first instance. The collateral source rule precludes certain deductions against otherwise recoverable damages, but does not expand the scope of economic damages to include expenses the plaintiff never incurred. Howell, 257 P.3d at 1133. Similarly, in Moorehead v. Crozer Chester Medical Center, 564 Pa. 156, 765 A.2d 786 (2001) (abrogated on other grounds by Northbrook Life Ins. Co. v. Com., 597 Pa. 18, 949 A.2d 333 (2008)), the Supreme Court of Pennsylvania refused to extend the collateral source rule to amounts a plaintiff was billed but did not pay. The court explained: Clearly, Appellant is entitled to recover $12,167.40, the amount which was paid on her behalf by Medicare and Blue Cross, the collateral sources. See Restatement (Second) of Torts § 920A(2), supra, note 2. But the essential point to recognize is that Appellee is not seeking to diminish Appellant's recovery by this amount. Rather, the issue is whether Appellant is entitled to collect the additional amount of $96,500.91 as an expense. Appellant did not pay $96,500.91, nor did Medicare or Blue Cross pay that amount on her behalf. The collateral source rule does not apply to the illusory "charge" of $96,500.91 since that amount was not paid by any collateral source. Moorehead, 765 A.2d at 791. ¶47 Other jurisdictions have extended the collateral source rule to protect an injured party's ability to recover amounts billed but not paid. For example, in Rose v. Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003), the Supreme Court of Kansas determined that for reasons of public policy, the collateral source rule extends to protect an injured party's ability to recover the amount hospital bills written off due to contract with Medicare. The Court determined: Public policy in Kansas supports the theory that any windfall from the injured party's collateral sources should benefit the injured party rather than the tortfeasor, who should bear the full liability of his or her tortious actions without regard to the injured parties' method of financing his or her medical treatment. Applying these concepts to this case, we hold that the trial court did not err when it applied the collateral source rule to the portion of the hospital's medical bills that was written off pursuant to Via Christi's contract with Medicare and affirm on this issue. Rose, 78 P.3d at 806. ¶48 However, Lee's focus on whether the collateral source rule extends to cover amounts billed to an injured plaintiff but not paid or owed is misplaced. The Legislature has effectively answered that question through the enactment of 12 O.S. 2011 § 3009.1. By doing so, the Legislature has exercised its policymaking role and determined that injured parties in a personal injury action will not be able to admit evidence of, and therefore recover damages for, amounts they or their insurer were billed for treatment but are not required to pay. In that regard, as to this limited issue, 12 O.S. 2011 § 3009.1 abrogates the collateral source rule to the extent it would otherwise conflict with the statute. ¶49 The collateral source rule cannot now protect Lee's right to recover the amount he or his provider was billed but not required to pay because compliance with 12 O.S. 2011 § 3009.1 specifically prevents him from admitting the amount billed but not paid, into evidence. The fact that 12 O.S. 2011 § 3009.1 might interfere with the collateral source rule does not invalidate it. Validly expressed legislative intent must always control over contrary notions of unwritten law. Helderman v. Wright, 2006 OK 86, n. 15, 152 P.3d 855; Brown v. Ford, 1995 OK 101, ¶10, 905 P.2d 223 (overruled on other grounds by Smith v. Pioneer Masonry, Inc., 2009 OK 82, 226 P.3d 687). ¶50 This Court has already recognized that compliance with 12 O.S. 2011 § 3009.1 now controls over the collateral source rule in situations where conflict might arise between the two. In Gowens v. Barstow, 2015 OK 85, 364 P.3d 644, this Court declined to answer whether Medicaid write-offs might be covered by the collateral source rule and noted the controlling effect of 12 O.S. 2011 § 3009.1. The Court explained: The parties do not cite any decisions of this Court concerning whether or not Medicaid write-offs are considered a collateral source. Ms. Gowens' attorneys point out that some other jurisdictions treat Medicaid write-offs as a collateral source. It was further pointed out that after this case was commenced, changes to Oklahoma law (12 O.S. 2011, § 3009.1) allow only actual amounts paid for any doctor bills to be admissible at trial. However, we need not decide today whether Medicaid write-offs made in cases filed prior to 12 O.S. 2011, § 3009.1 are a collateral source. Gowens, 2015 OK 85, ¶34 (footnotes omitted). The Court in Gowens tacitly acknowledged that regardless of the original effect of the collateral source rule on billed vs. paid amounts, 12 O.S. 2011 § 3009.1 now controls. ¶51 However, we must stress that 12 O.S. 2011 § 3009.1 has no effect on the collateral source rule except that required by the operation of the statute. This Court has long recognized the power of the Legislature to modify or abrogate the common law by statute. See Fuller v. Odom, 1987 OK 64, ¶¶3-4, 741 P.2d 449 (recognizing legislative abrogation of common law theories of recovery against governmental tortfeasors under the Political Subdivision Tort Claims Act). Generally, abrogation of the common law must be clearly and plainly expressed by the legislature. Tucker v. ADG, Inc., 2004 OK 71, ¶19, 102 P.3d 660; Greenberg v. Wolfberg, 1994 OK 147, ¶11, 890 P.2d 895; Fuller, 1987 OK 64, ¶4. This Court has previously stated that mere implication is not enough to override the presumption that the common law remains in full force and effect. Watson v. Gibson Capitol, 2008 OK 56, ¶12, 187 P.3d 735; Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, ¶21, 981 P.2d 1253; Greenberg, 1994 OK 147, ¶11. There is no express legislative intent in 12 O.S. 2011 § 3009.1 to abolish the collateral source rule in its entirety, for insured victims of torts or otherwise. Rather, 12 O.S. 2011 § 3009.1 explicitly restricts the admissibility of certain types of evidence. There is no ambiguity in the language and expressed intention of 12 O.S. 2011 § 3009.1, and to the extent it conflicts with operation of the collateral source rule, it controls. CONCLUSION ¶52 A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. Rural Water Sewer and Solid Waste Management v. City of Guthrie, 2010 OK 51, ¶15, 253 P.3d 38; Kimery v. Public Service Co. of Oklahoma, 1980 OK 187, ¶6, 622 P.2d 1066; Matter of Daniel, Deborah and Leslie H., 1979 OK 33, ¶10, 591 P.2d 1175. The trial court correctly determined Lee failed to demonstrate the unconstitutionality of 12 O.S. 2011 § 3009.1 on any of the grounds he asserted. Lee has failed to meet the heavy burden cast on those challenging a legislative enactment to show its unconstitutionality. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, ¶3, 302 P.3d 789; Thomas v. Henry, 2011 OK 53, ¶8, 260 P.3d 1251. Accordingly, the decision of the trial court is affirmed. PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED; ORDER OF THE TRIAL COURT AFFIRMED CONCUR: REIF, C.J., COMBS, V.C.J., WINCHESTER, EDMONDSON, and TAYLOR, JJ. CONCUR SPECIALLY: KAUGER, J. (by separate writing) CONCUR IN PART; DISSENT IN PART: GURICH, J. DISSENT: WATT and COLBERT, JJ. FOOTNOTES 1 The Attorney General, in his brief on the Constitutional Claims, emphasizes many policy reasons that he apparently believes are served by 12 O.S. 2011 § 3009.1. The Attorney General specifically points out inflationary billing practices as one explanation for soaring modern health care costs, arguing: Physicians are in the regular practice of overbilling for services in order to ultimately settle the bill for a higher amount than they would otherwise. Accordingly, there are typically two separate prices for medical services--the "list price," which is the starting point for negotiations; and the "actual price," which is what is ultimately paid. Because health care providers know that the higher they bill, the higher the negotiated price is going to be, there is often wide variation among these two prices. The list prices have no basis in reality, but instead are "grossly inflated because they are set to be discounted rather than paid." Attorney General's Brief on Constitutional Claims, p. 1 (Internal footnotes omitted). 2 In Reynolds v. Porter, 1988 OK 88, ¶¶13-17, 760 P.2d 816, this court explained the interaction between Okla. Const. art, 5, § 46 which prohibits certain types of special laws, and Okla. Const. art. 5, § 59, which generally allows the legislature to pass special laws when a general law is not applicable. Okla. Const. art. 5, § 59 provides: "[l]aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." Under Okla. Const. art. 5, § 59 a three-pronged inquiry is necessary to determine if a statute is constitutional: 1) Is the statute a special or general law? 2) If the statute is a special law, is a general law applicable? and 3) If a general law is not applicable, is the statute a permissible special law? Reynolds, 1988 OK 88, ¶13. If Okla. Const. art, 5, § 46 is implicated, however, only the first prong is necessary. The Court explained: Under § 46 our constitutional review of a statute stops with the first prong: Is the statute a special or general law? If the statute is special, § 46 absolutely and unequivocally prohibits its passage by the legislature. The second prong is unnecessary because the constitutional fathers predetermined that, for the 28 subjects enumerated in § 46, a general law is always applicable. In other words, in § 46 our constitutional fathers isolated and set aside for protection against legislative tampering subjects to which general law must always be tailored. The third prong is not implicated because a special statute under § 46 is never permissible. In a § 46 attack, the only issue to be resolved is whether a statute upon a subject enumerated in that section targets for different treatment less than an entire class of similarly situated persons or things. Reynolds, 1988 OK 88, ¶17 (footnotes omitted). 3 This Court has previously noted that one of the inquiries regarding whether a law is a general law, as opposed to a local or special law, "concerns whether there is a proper and legitimate classification, whether the classification is arbitrary or capricious, or whether it bears a reasonable relationship to the object to be accomplished." City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶13, 133 P.3d 281; Sanchez v. Melvin, 1966 OK 116, ¶14, 18 OK 116. See Wall, 2013 OK 36, ¶5 ("A law is special if it confers particular privileges or imposes peculiar disabilities or burdensome conditions in the exercise of a common right on a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law."). 4 Okla. Const. art. 2, § 6 provides: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. 5 Okla. Const. art. 2, § 19 provides: The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Provided, however, that the Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil cases, involving more than Ten Thousand Dollars ($10,000.00), and felony criminal cases shall consist of twelve (12) persons. All other juries shall consist of six (6) persons. However, in all cases the parties may agree on a lesser number of jurors than provided herein. In all criminal cases where imprisonment for more than six (6) months is authorized the entire number of jurors must concur to render a verdict. In all other cases three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict. When a verdict is rendered by less than the whole number of jurors, the verdict shall be signed by each juror concurring therein. 6 Oklahoma's Due Process Clause is coextensive with its federal counterpart, though there may be situations in which the Oklahoma provision affords greater protections. State ex rel. Bd. of Regents of University of Okla. v. Lucas, 2013 OK 14, n. 25, 297 P.3d 378; Okla. Corrections Prof'l Ass'n, Inc. v. Jackson, 2012 OK 53, n. 13, 280 P.3d 959; State ex rel. Okla. Bar Ass'n v. Mothershed, 2011 OK 84, n. 65, 264 P.3d 1197. 7 Matters not first presented to the trial court for resolution are generally not considered on appeal. Stonecipher v. Dist. Ct. of Pittsburg County, 1998 OK 122, ¶11, 970 P.2d 182; Steiger v. City National Bank of Tulsa, 1967 OK 41, ¶24, 424 P.2d 69. KAUGER, J., concurring specially: ¶1 I agree with the majority that Petitioner has failed to demonstrate the unconstitutionality of 12 O.S. 2011 §3009.1, and write separately to highlight the policy reasoning behind by the statute. Title 12 O.S. 2011 §3009.1 limits the admissibility of evidence regarding medical costs to that which has been paid or is owed, rather than that which has been billed.1 ¶2 The statute is necessary because of the opaque process of medical services pricing, in which there is often a significant difference between the price that is billed and the price that is paid.2 The amount billed for a medical service is not the amount a provider expects to collect. Instead, it is a starting position for negotiations with private insurers, Medicare, Medicaid, and other groups.3 If a physician or hospital initially bills at an inflated rate, they are more likely to ultimately receive a higher amount. There are thus structural incentives for a service provider to bill at an exaggerated rate, and this occurs nation-wide. In 2004, hospitals in the United States received only thirty-eight percent of the initially listed price.4 The pricing in the present case is similar. The initial bill was for $8,112.81, while only $2,845.11 was actually paid. ¶ 3 This process is inefficient and leads to uncertainty. In hospitals, a patient will often sign a "Statement of Financial Responsibility" instead of agreeing to a specific and set price.5 A patient is consequently purchasing a service without knowing how much that service will cost. Then, they will be billed at a specific and set price that will later be discounted as a result of negotiations between the provider and insurer. Throughout this process, the patient remains unsure what is actually owed. The solution seems clear: medical service providers should stop inflating prices on the initial bill. Like every other commercial transaction, the amount that is billed and the amount that is owed should be the same. ¶ 4 However, those are not the present circumstances. Title 12 O.S. 2011 §3009.16 is a reaction to the way that medical services are priced. It ensures that a plaintiff does not receive a windfall, but also ensure that the measure of damages "is the amount which will compensate for all detriment."7 FOOTNOTES 1 Title 12 O.S. 2011 §3009.1 provides: A. Upon the trial of any civil case involving personal injury, the actual amounts paid for any doctor bills, hospital bills, ambulance service bills, drug bills and similar bills for expenses incurred in the treatment of the party shall be the amounts admissible at trial, not the amounts billed for expenses incurred in the treatment of the party. If, in addition to evidence of payment, a signed statement acknowledged by the medical provider or an authorized representative that the provider in consideration of the patient's efforts to collect the funds to pay the provider, will accept the amount paid as full payment of the obligations is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. Provided, if a medical provider has filed a lien in the case for an amount in excess of the amount paid, then bills in excess of the amount paid but not more than the amount of the lien shall be admissible. If no payment has been made, the Medicare reimbursement rates in effect when the personal injury occurred shall be admissible if, in addition to evidence of nonpayment, a signed statement acknowledged by the medical provider or an authorized representative that the provider, in consideration of the patient's efforts to collect the funds to pay the provider, will accept payment at the Medicare reimbursement rate less cost of recovery as provided in Medicare regulations as full payment of the obligation is also admitted. The statement shall be part of the record as an exhibit but need not be shown to the jury. Provided, if a medical provider has filed a lien in the case for an amount in excess of the Medicare rate, then bills in excess of the amount of the Medicare rate but not more than the amount of the lien shall be admissible. B. This section shall apply to civil cases involving personal injury filed on or after November 1, 2011. 2 George A. Nation III, Determining the Fair and Reasonable Value of Medical Services: The Affordable Care Act, Government Insurers, Private Insurers and Uninsured Patients, 65 Baylor L. Rev. 425, 432 (2013). 3 Keith T. Peters, What Have We Here? The Need for Transparent Pricing and Quality Information in Health Care: Creation of an Sec for Health Care, 10 J. Health Care L. & Pol'y 363, 366 (2007). 4 Peters, supra note 3 (citing Uwe E. Reinhardt, The Pricing of U.S. Hospital Services: Chaos Behind a Veil of Secrecy, 25 Health Aff. 57, 57 (2006)). 5 Nation, supra note 2 at 426. 6 See note 1, supra. 7 Title 23 O.S. 2011 §61 provides that: For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.

8f948c17-a09b-4c7a-b6a2-68ae4a2f3cca

Holliman v. Twister Drilling Co.

oklahoma

Oklahoma Supreme Court

HOLLIMAN v. TWISTER DRILLING CO.2016 OK 82Case Number: 113305Decided: 06/28/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. In re Claim of: A. Todd Holliman, Petitioner, v. Twister Drilling Co., Respondent, and Compsource Oklahoma, Insurance Carrier. CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION IV ¶0 Worker sought reversal of an order of the Workers' Compensation Court of Existing Claims' three-judge panel which vacated the trial tribunal's award of benefits. The Court of Civil Appeals held that Worker's accident did not fall under any exceptions to the going and coming rule. COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THREE JUDGE PANEL VACATED; AWARD OF TRIAL TRIBUNAL SUSTAINED. G. Todd Ralstin, Oklahoma City, Oklahoma for Petitioner. Cynthia S. Dugger, Shdeed & Dugger, Oklahoma City, Oklahoma for Respondent. COLBERT, J. ¶1 The question presented is whether Worker's injury is compensable under any of the exceptions to the going and coming rule. This Court holds that Worker's injury is a compensable injury under the travel exception to the going and coming rule. Therefore, Worker is entitled to benefits. BACKGROUND AND PROCEDURAL HISTORY ¶2 A. Todd Holliman (Worker) worked as a Floor Hand on a four man crew for Twister Drilling Company (Employer) on a drilling rig. Worker lived in Holdenville, Oklahoma and the rig was located approximately forty miles away in Maud, Oklahoma. Three crews worked eight hours each to service the well 24 hours a day, seven days a week. Employer had no housing at the drill site, therefore; employees were required to find transportation to and from the drill site. Employer paid travel pay ($60 - $80 depending on the distance traveled) to the crew. Worker stated that the driller in charge was the person who actually received the travel pay, however; with his crew the driller in charge elected to rotate the travel pay equally among everyone on the crew. There was a "dog house" at the drill site where the crews could store their work equipment, if they chose to do so. At the time of the accident, Worker was traveling with his hard hat, work clothes, gloves, and safety glasses. ¶3 On May 15, 2013, Worker and his supervisor were traveling home from the drill site after completing their shift when they were involved in a double fatality car crash. Worker's supervisor was killed as was the driver of the other vehicle. The car belonged to Worker but his supervisor was driving. Worker was a passenger and was sleeping at the time of the collision. ¶4 On August 30, 2013, Worker filed a Form 3 alleging he sustained a single-event injury to his neck, back, left arm, and psychological overlay arising from injuries sustained from the motor vehicle accident. In its Form 10 Answer, first filed on October 2, 2013, Employer admitted that Worker was an employee but denied the injuries were compensable or work-related because Worker was not engaged in the performance of his job duties when he was injured. The trial tribunal found that Worker's injuries were compensable and work related. It awarded Worker benefits. The tribunal found that under the circumstances the accident came within the special task exception to the general going and coming rule. Employer appealed. The three-judge panel reversed the order finding that Worker was not injured while performing unusual duties and therefore was not entitled to benefits. Worker appealed and the Court of Civil Appeals (COCA) sustained the three-judge panel's denial of benefits finding that not only was Worker not performing a special task, but there was no agreement between the crew members to share the travel pay. STANDARD OF REVIEW ¶5 "The date of injury has long been the point in time in workers' compensation cases when rights of the parties become established, including when a claim must be filed; which law to use for determining benefits, and a schedule of compensation to determine the amount of benefits a claimant is entitled to receive." Williams Co., Inc. v. Dunkelgod, 2012 OK 96, ¶ 14, 295 P.3d 1107, 1111. The law in effect on the date of injury, May 15, 2013, was the Workers' Compensation Code, Okla. Stat. tit. 85, §§ 1 through 413 (Supp. 2013). The appellate standard of review, § 340(D), states that this Court may "modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds: 1. The court acted without or in excess of its powers; 2. The order or award was contrary to law; 3. The order or award was procured by fraud; or 4. The order or award was against the clear weight of the evidence. Okla. Stat. tit. 85.1 ANALYSIS ¶6 "A compensable work-related injury must both (1) occur in the course of and (2) arise out of the worker's employment." Veith v. Ogburn, 2006 OK CIV APP 75, ¶ 12, 136 P.3d 1080, 1082. These elements are distinct and both must be met for an injury to qualify under the Workers' Compensation Code. "The phrase 'in the course of employment' refers to the time, place or circumstances of the injury". Id. The Worker's accident "must occur within the period of employment at a place where the workman reasonably may be and while he is reasonably fulfilling a duty of his employment or engaged in doing something incidental thereto." Barnhill v. Smithway Motor Express, 1999 OK 82, ¶11, 991 P.2d 527, 531. ¶7 Whether an injury arises out of employment depends upon a "causal relationship between the act engaged in at the time injury occurs and the requirements of employment." Veith, 2006 OK CIV APP 75, ¶ 12, 136 P.3d at 1082. "To meet the arising out of prong it must appear to the rational mind, upon considering all the circumstances, that a causal connection exists between the condition(s) under which the work is to be performed and the resulting injury." Barnhill, 1999 OK 82, ¶ 12, 991 P.2d at 531. ¶8 Generally, injuries incurred while going to or coming from work are not compensable injuries. "The general rule concerning such off-premises injuries primarily results from the fact that going to and coming from work is the product of the employee's own decision of where he desires to live, a matter ordinarily of no interest to the employer." Id., ¶ 15, 991 P.2d at 532. However, the Court has carved out several exceptions to this rule; such as: (1) performing (or going to or coming from performing) a special task outside of regular hours and at the employer's request; Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89; (2) Employer has agreed to provide transportation for employees to and from work or pay travel expenses; Christian v. Nicor Drilling Co., 1982 OK 76,¶ 4, 653 P.2d 185, 186; (3) transporting supplies owned by the employer and needed to complete work duties or tasks; Weatherbee Elec. Co. v. Duke, 1955 OK 322, 294 P.2d 298; or (4) Employer owns or controls the area where injury occurs; Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070. ¶9 In the case at bar, the record shows that Employer acknowledges that Worker was an employee at the time of the injury, but contends that because the accident happened while Worker was going home from work, the injury is not compensable. The trial tribunal disagreed and held that Worker was on a special task for Employer thus his injuries were compensable. The three-judge panel reversed the trial court's order finding that Worker was not performing a special task and that this accident did not qualify under any other exception to the going and coming rule. ¶10 Both courts acknowledged that Employer pays travel pay to its employees but determined that since Worker was not the one who received the travel pay that day he did not qualify under any of the exceptions to the going and coming rule. This is incorrect. Travel pay is used as an incentive by employers to entice prospective or current employees into accepting a job or job assignment. It is well understood that "in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment." Christian, 1982 OK 76, ¶ 4, 653 P.2d 185, 186. There is no case law to support the argument that Worker must have received travel pay each day of his job assignment or on a particular day of his assignment. The record indicates that travel pay is paid to the crew and this particular crew agreed to rotate the travel pay accrued each week among each member of the crew. While the day of the accident was not Worker's day to receive the travel pay, he was still a member of the crew and was therefore entitled to travel pay. ¶11 In this matter, the three-judge panel and COCA held that the "special task" exception does not apply. However, "special task" is not the only exception to the general rule that injuries sustained while going and coming to work are not compensable. The applicable exception is found in Christian, 1982 OK 76, ¶ 4, 653 P.2d at 186, which recognized an exception: when the employer provides transportation to the job site or whenever the nature of the work itself creates a necessity for travel. These exceptions rest on the law's awareness that in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment. This is particularly true of the oil industry. When drilling sites are at locations remote from population centers, transportation is commonly provided by the employer for the mutual benefit of all parties. (Emphasis added). To resolve the dispute in Christian, this Court asked "whether [the injured employees'] use of a self-provided vehicle was brought about by circumstances known to, and approved by, the employer . . .." Id., ¶ 6, 653 P.2d at 187. The Christian Court concluded that the injured employees "were on a mission [employer] instructed them to pursue, doing precisely what he intended for them to do in order to meet their job requirements." Id., ¶ 9, 653 P.2d at 187. ¶12 This matter is factually on all fours with Christian and its well-recognized exception to the going and coming rule applies here. In both cases, "the workers proceeded to the workplace in their personal vehicle on specific instructions from their supervisor." Id., ¶ 3, 953 P.2d 186. Thus, because Employer compensated the employees for travel expenses, an exception to the going and coming rule, Worker's injuries are compensable. "If the trial court reaches the correct result but for the wrong reason, its judgment is not subject to reversal. Rather, the Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale." Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 17, 324 P.3d 399, 406 (footnote omitted). CONCLUSION ¶13 There is overwhelming evidence in the record to support the trial court's finding that Worker's injuries occurred in the course of and arose out of his employment. Worker's injuries are compensable and the circumstances qualify under an exception to the going and coming rule. Worker is entitled to all benefits awarded to him in the trial tribunal's award. COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THREE JUDGE PANEL VACATED; AWARD OF TRIAL TRIBUNAL SUSTAINED. CONCUR: Reif CJ, Combs VCJ, Kauger, Edmondson, Colbert, and Gurich, JJ. DISSENT: Winchester, Taylor, JJ. FOOTNOTES 1 This standard was repealed by Laws 2013, SB 1062, ch. 208, § 171 (eff. February 1, 2014). It was recodified at Okla. Stat. tit. 85A, § 78 (eff. February 1, 2014).

bfd6c7ec-4e65-4b4b-9225-493a0c3da45f

Tiger v. Verdigris Valley Electric Cooperative

oklahoma

Oklahoma Supreme Court

TIGER v. VERDIGRIS VALLEY ELECTRIC COOPERATIVE2016 OK 74Case Number: 112777Decided: 06/21/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.     Misty Darlene Tiger, individually and as Administrator of the Estate of Jason Lee Tiger, deceased; J.L.T., a minor child; and B.L.T., a minor child, by and through their natural mother and next friend, Misty Darlene Tiger, Appellants, v. Verdigris Valley Electric Cooperative, an Oklahoma not for profit cooperative, Appellee, and Integrated Service Company LLC, d/b/a INSERV, an Oklahoma limited liability company, Defendant. CERTIORARI TO THE COURT OF CIVIL APPEALS Division I ¶0 Widow and children of deceased worker brought an action pursuant to Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572, asserting that decedent's employer knew that injury or death was substantially certain to result from the task decedent and his coworkers were directed to complete and the conditions in which they were required to work. The District Court, Honorable Dwayne Steidley, denied the employer's motion for summary judgment but granted a second motion for summary judgment after additional discovery. The Court of Civil Appeals affirmed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; DISTRICT COURT REVERSED; CAUSE REMANDED. Bryce A. Hill, Law Office of Bryce A. Hill, Tulsa, Oklahoma; and Jack G. Zurawik, The Zurawik Law Firm, Tulsa, Oklahoma, for Appellants. Richard A. Gann, Stephen B. Riley, Thomas M. Askew, Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, for Appellee. COLBERT, J. ¶1 The issue in this matter is whether summary judgment was properly granted to decedent's employer pursuant to Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. Because material issues of fact remain in dispute, this cause must be remanded to the trial court for proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY ¶2 On January 9, 2008, a field engineer for Verdigris Valley Electric Cooperative (Employer) met with a contract electrician for Integrated Service Company LLC (INSERV) in Catoosa, Oklahoma, concerning the installation of additional underground electrical service. They discussed the location of the additional service to the building and decided to use an existing junction box which the engineer observed was surrounded by a yellow metal barricade. He would later note: "I normally recommend that our members [customers] install a protective post an [sic] each corner of a pad mounted device in high traffic areas such as the INSERV plant, to help protect from getting ran [sic] over by vehicles or other equipment. I would never suggest having a barrier of any kind in front of any opening or door on VVEC equipment." ¶3 On June 5, 2008, a work crew from Employer was dispatched to install additional underground electrical service to INSERV. The four-man crew consisted of Jones, Jackson, Day, and Tiger. Jones and Jackson were journeymen electricians and Jones was the foreman. Day and Tiger were apprentices. Tiger had been in the journeyman apprentice program for approximately nine months of a four-year program. At the time of his death, Tiger had been certified only in the climbing school portion of his journeyman training. Day had worked for Employer only one month. ¶4 To provide the additional electric service to INSERV, the work crew would install three underground cables from a junction box to a transformer located on INSERV's premises. Employer, through its employees, decided the system would remain energized with high voltage electricity so that customers would not be inconvenienced by an interruption in electrical service. The existing junction box was energized with nominal 14,000/24,900 volts that would then transfer that high voltage electricity to the new service transformer and convert ("step down") the electricity into a much lower useable voltage which could be used by INSERV to run equipment. ¶5 When the crew arrived at the work site, they found the junction box surrounded by a yellow painted steel barricade, erected presumably to protect it from being struck by vehicles or trailers. The record does not establish who erected or owned the barricade, but Employer owned the junction box and associated electrical equipment. Affixed to the junction box was a warning concerning hazardous voltage and underground power cables and a notice from Employer which stated: "We need room to work safely on this device. Please keep shrubs and structures 10 feet away from the side with doors and 3 feet from the other sides. Obstructions may be damaged or removed during service restoration or maintenance." Employer had attached such stickers to its equipment for several years preceding Tiger's electrocution. ¶6 The barricade consisted of four corner posts with two rails connecting each post. The barricade did not satisfy the set back requirements of Employer's notice to keep structures ten feet away from the door and three feet away from the other sides. It also did not satisfy the set back requirements of the Occupational Safety and Health Administration (OSHA), the National Electric Safety Code, and the Oklahoma Administrative Code, which adopted the 2002 edition of the National Electric Safety Code. The space between the junction box and the metal barricade was six and one half inches at the left side, eight inches at the right side, and eleven inches at the back. The height of the top rail varied from thirty-seven to forty-six inches. Most importantly, only nineteen inches separated the front of the junction box and the metal barricade. Employer's work crews understood that if an obstruction needed to be removed, they had the authority to do so. The foreman of the work crew would later explain that he viewed the barricade as a "hindrance" rather than a safety issue and did not remove the barricade or cut the flow of electricity to the junction box. However, the "Job Briefing Form," which was signed by the foreman and initialed by each of the work crew "to document hazard recognition and work procedures," documented the work crew's full knowledge that they would "work in [a] hot cabinet" and that the installation would require "hard hats, safety glasses, rubber gloves, [and an insulated] blanket." ¶7 Each of the three cables installed to connect the junction box with the transformer would comprise the three phase service (phases A, B, and C). They would be capped off by installing connections that would operate as a "plug" to be inserted into its own bushing located within the junction box and within the transformer. This would permit electricity to flow from an overhead line into the junction box and into the INSERV transformer. An eight-foot long insulated rod known as a "shotgun stick" would be used to push the plug into the the opening of the bushing on the junction box while another crew member wearing insulated gloves would guide the connection. This process was to be repeated for each of the three cables. ¶8 The work crew began its installation by pulling wire through the underground conduit that had been placed between the transformer and the junction box. They then attached connectors to the ends of the phase wires and seated those connectors into bushings on the transformer rather than placing the connectors in "parking stands"1 to be seated later, after the junction box end of the wires had been fitted with connectors and seated into bushings within the junction box. The crew then took thirty minutes for lunch. Connections were installed on the junction box end of each cable. Jackson used the shotgun stick from a position outside the barricade to successfully insert cable "A" into the bushing on the junction box while Tiger leaned over the barricade using the insulated gloves to guide the connection. ¶9 Jackson then attached the shotgun stick to cable "B" while Tiger attempted to approximate the connection for that cable. However, the steel barricade was so close to the junction box that there were only nineteen inches of clearance between the barricade and the front work area of the junction box. After numerous attempts, to seat the phase B connector into the designated bushing of the junction box, it was determined that the task could not be accomplished from outside the steel barricade. With no admonition or warning from the crew foreman Jones, journeyman Jackson, or any other member of the work crew, Tiger climbed over the barricade to position his six feet two inches 200 pound frame inside the nineteen inches of space between the junction box and the steel barricade to assist in lining up the B phase connector with the bushing of the junction box so that it could be seated. As Jackson was making the connection, Tiger stepped back from Phase B, made contact with phase C, and screamed. He then appeared to freeze and not move. Within two to three seconds, Jones realized that Tiger was being shocked. Jones retrieved the "extendo stick" from the truck and ran an estimated 200 to 500 feet to the utility pole where the fuses were located to turn off the power. It took an estimated one to three minutes to pull the three fuses to interrupt the flow of high voltage electricity passing through Tiger's body. After the power was cut, the work crew pulled Tiger from the barricade. Resuscitation efforts failed and Tiger was pronounced dead at a local hospital. ¶10 Subsequent investigation into the cause of Tiger's electrocution revealed that, when Phase A was connected to the junction box, it energized the core of the transformer which then allowed "back feed" to the unconnected Phases B and C at the junction box. The parties would later dispute the role of the barricade in the electrocution. The United States Department of Labor, Occupational Safety and Health Administration, issued a citation for two "serious" safety violations. Under OSHA, "the word serious as used in serious hazard, serious violation or serious condition means a hazard, violation or condition such that there is a substantial probability that death or serious physical harm could result." 29 C.F.R. § 1960.2(v). The citation provided: Citation 1 Item 1 Type of Violation: Serious 29 CFR 1910.269(a)(2)(iv)(B): Employees did not receive additional training where new types of equipment and changes in procedures necessitated the use of equipment that were different from those which the employee(s) would normally use. On or about June 5, 2008, at the work site, employer did not train employee adequately on procedures of safety-related work practices that were different from those normally used, exposing employee to the hazards of electrocution by coming in contact with live parts while working inside of metal enclosed fence or barricade. Citation 1 Item 2 Type of Violation: Serious 29 CFR 1910.269(c): Employer shall ensure that the employee(s) in charge conducts a job briefing with the employees involved before the start of each job. On or about June 5, 2008, at the work site, employer did not brief employee on hazards associated with the job, work procedures involved, special precautions, energy source controls, and personal protective equipment requirements, such as, rubber insulating blanket and other additional personal protection equipment (PPE) exposing employee to the hazards of electrocution by coming in contact with live parts while inside of a metal enclosed/barricade. OSHA ordered abatement of the violations and assessed a proposed penalty. ¶11 This action was brought in the District Court against Employer and INSERV on June 3, 2009. It alleged that Employer's choice to direct the work crew to install new service with a steel barricade located within nineteen inches of a high-voltage junction box demonstrated Employer's substantial certainty that serious injury or death to a worker would result. INSERV was dismissed from the action with prejudice on December 17, 2010. Employer moved for summary judgment in July, 2011. The trial court denied the motion, noting a list of facts to support an inference of Employer's knowledge of a substantial certainty that injury or death would result from its conduct. ¶12 Following the deposition of Plaintiffs' expert, Employer filed a second motion it termed a "Post-Discovery Motion for Summary Judgment." It emphasized Employer's safety record and the lack of dispute that Employer is a "safety-oriented" company. The trial court noted that members of the work crew had been trained concerning back-feed but had forgotten their training and therefore failed to apply it. The trial court further emphasized that, under company policy, Employer and its employees are "jointly responsible for safety." It concluded Employer was not aware of its "employee training deficiencies" until after Tiger's death. The motion was granted and the Court of Civil Appeals affirmed. This Court granted certiorari review. STANDARD OF REVIEW ¶13 The appellate standard of review of a summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. The evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to any material fact. See Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broad. Grp., 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the nonmoving party. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Even when the facts are not controverted, if reasonable persons may draw different conclusions from the facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, ¶ 20, 939 P.2d 1123, 1127. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff P'ship, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, ¶ 8, 929 P.2d 288, 292. When genuine issues of material fact exist, summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Okla. State Bank & Trust Co., 1993 OK 117, ¶ 7, 860 P.2d 230, 233. Because the trial court has the limited role of determining whether there are such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exp. Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730. ANALYSIS ¶14 Because the incident that gave rise to this action occurred in 2008, the applicable law is found in this Court's pronouncement in Parret v. UNNICO, 2005 OK 54, 127 P.3d 572.2 There, this Court determined the standard for when an employer's conduct is intentional therefore placing the employee's claim for injury or death outside the exclusive remedy provision of the Workers' Compensation Act. The Parret holding is summarized well by the comment to Oklahoma Uniform Jury Instruction (Civil) 6.16 which explains: In order for an employer's conduct to amount to an intentional tort, the employer must have (1) desired to bring about the worker's injury or (2) acted with the knowledge that such injury was substantially certain to result from the employer's conduct. Under the second part of this standard, the employer must have intended the act that caused the injury with knowledge that the injury was substantially certain to follow. The issue is not merely whether injury was substantially certain to occur, but whether the employer knew it was substantially certain to occur. The employer's subjective appreciation of the substantial certainty of injury must be demonstrated. In most cases, however, it will be necessary to demonstrate the employer's subjective realization by circumstantial evidence. Thus, an employer's knowledge may be inferred from the employer's conduct and all the surrounding circumstances. (Emphasis added). ¶15 Parret examined the policy considerations underlying the substantial certainty standard and noted that it was designed for: [t]he difficult case . . . where the employer [is] not motivated by a desire to harm employees, but certainly tak[es] a calculated risk with their lives and safety-and perhaps takes all the greater risk because the employer knows that when injury inevitably does occur, the cost will be less because of the exclusive remedy and limited compensation provisions of the workers' compensation act. 2005 OK 54, ¶ 22, (quoting 7 Causes of Action 2d 197, § 2 at 204). In determining whether this matter presents such a difficult case, the question becomes whether Employer's conduct and the surrounding circumstances support an inference of Employer's substantial certainty that injury or death to a worker would result from its conduct. ¶16 The lower courts held, as a matter of law, Employer's knowledge concerning the condition of the work site or the actions of its work crew did not demonstrate its substantial certainty that a worker would be injured or killed. That conclusion failed to consider that the knowledge or notice possessed by an agent while acting within the scope of authority is the knowledge of, or notice to the principal. Bailey v. Gulf Ins. Co., 389 F.2d 889, 891 (10th Cir. 1968). Thus, the lower courts' emphasis on the fact Employer was generally a "safety minded" organization and its safety record was good overall, was entirely misplaced. Similarly, the trial court's emphasis on the "joint responsibility" between Employer and its employees for workplace safety found in the company policy manual does not control this matter. See Graham v. Keuchel, 1993 OK 6, ¶ 52, 847 P.2d 342 (claim for intentional tort is not subject to defense of contributory or comparative negligence). ¶17 This matter presents facts very similar to those found in Parret. There, an electrical worker was directed to work on emergency lights while they remained energized. The worker was electrocuted and died as a result. This Court adopted the substantial certainty standard in response to a federal certified question and explained the standard's parameters and underlying policy considerations. In this matter, the foreman and the other journeyman electrician instructed one apprentice, Day, to move far away from the barricade. The other apprentice, Tiger-- who had no experience or training in high voltage installation-- was allowed to take on the most dangerous task at the work site by crawling over a metal barricade without an insulated blanket in an attempt to connect cables to a junction box energized with high voltage electricity with insufficient clearance. ¶18 Employer, through its employees, made several fateful decisions from which a jury could at least infer Employer's substantial certainty that at least one member of its work crew would be injured or killed as a result of its conduct or omissions. Those decisions began with the conduct of Employer's field engineer who sets out the policy and procedure for completing a project and who discussed with INSERV the options for the location of additional electric service. At that time, the engineer noticed the yellow metal barricade surrounding the junction box. Although he would later state that he would never recommend such a barricade, he did nothing to cause the work crew to modify or remove the illegal obstruction. Such conduct went beyond reckless disregard and deliberate indifference. It indicates Employer's substantial certainty that someone would be injured or killed by entering the steel barricade with less than nineteen inches from the barricade and the door of the junction box. ¶19 Those decisions continued with those of the work crew foreman, Jones, who acted as Employer's on-site policy maker concerning safety and apprentice training. Those decisions regarding safety, supervision, and apprentice training imply Employer's substantial certainty that serious injury or death would result from its conduct. They include: (1) not cutting the power and therefore placing the convenience of its customers over the safety of its employees; (2) not using the parking stands provided on the transformer and junction box; (3) not removing the illegal metal barricade or at least the front of the barricade; (4) not placing safety blankets over the metal barricade; and (5) allowing a six foot two, two hundred pound apprentice to assume the most dangerous position for installation of the high-voltage electrical service and enter the insufficient space between the high voltage junction box and the illegal barricade. ¶20 The record before this Court demonstrates overwhelming issues of material fact in dispute making summary judgment inappropriate. Those include Tiger's understanding of electricity and his experience installing high-voltage electric service. It is also unclear whether Tiger and Employer's work crew were required to work on the electrical system while it was "hot" and whether, under the circumstances, serious injury or death was substantially certain to occur. The parties disagree whether Employer's conduct rose to the level of intent necessary to maintain an action in tort notwithstanding the exclusive remedy provision of the Workers' Compensation Act. CONCLUSION ¶21 The central question of fact, which was present throughout this litigation, is whether there is at least an inference from the facts and circumstances surrounding this incident that Employer was substantially certain a worker could be injured or killed by working on electrical cables within a steel barricade with only nineteen inches of clearance between it and the high-voltage junction box contrary to OSHA rules3, the electrical code, state law, and Employer's own warning sticker. That question is one for the trier of fact on remand. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; DISTRICT COURT REVERSED; CAUSE REMANDED. CONCUR: Reif, C.J., Watt, Edmondson, Colbert,, and Gurich, JJ. CONCURS BY REASON OF STARE DECISIS: Kauger, J. DISSENT: Combs, V.C.J., Winchester, and Taylor, JJ. FOOTNOTES 1 "Parking" each phase means inserting the connections at the transformer or junction box into an insulated bushing known as a parking stand, which would prevent the flow of electric power to the transformer or junction box until all of the phases in the junction box have been connected. 2 The Parret standard was adopted in 2005. It was superseded by the Oklahoma Legislature's revisions to the Workers' Compensation Act in 2010. 2010 Okla. Sess.Laws chap.452 § 3. Those revisions included the amendment to section 12 of the Act which made "specific intent" to injure the operative test by providing: An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court. . . . Okla. Stat. tit. 85, § 12 (Supp. 2010)(eff. August 27, 2010). The same definition of intentional tort was carried forward in 2011 when the Oklahoma Legislature repealed section 12 and inserted the definition into section 302. Okla Stat. tit.85, § 302(B)(Supp. 2011). The same definition of intentional tort appears in the Administrative Workers' Compensation Act which became effective February 1, 2014. Okla Stat. tit. 85A, §5(B)(2) (Supp. 2014). Therefore, for any injury occurring after August 26, 2010, the substantial certainty standard is unavailable to an injured worker. 3 Concerning the OSHA "serious violations" issued against Employer, these violations do not alone conclusively establish Employer's substantial certainty of injury or death. They do, however, constitute circumstantial evidence of that intent.

a3ae37f7-6692-4b6a-9e4c-fbbe35e8a587

Birtciel v. Jones

oklahoma

Oklahoma Supreme Court

BIRTCIEL v. JONES2016 OK 103Case Number: 113457Decided: 10/11/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARY BIRTCIEL, Plaintiff/Appellant, v. CHAD ALLEN JONES, Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, THE HONORABLE BARRY L. HAFAR, DISTRICT JUDGE ¶0 Appellant/Grandmother, Mary Birtciel, petitioned in Oklahoma County for visitation of her minor granddaughter following the death of the Child's mother. Prior to resolution of this petition, Appellee/Father, Chad Allen Jones, and his new wife/Stepmother adopted the Child in Canadian County. Father then moved to dismiss Grandmother's petition on the grounds that the adoption created a new, intact nuclear family unit. The District Court of Oklahoma County found, sua sponte, that Grandmother's non-appearance at the adoption hearing divested her of the right to seek visitation, despite the fact that her petition was filed prior to the adoption and remained pending. The Court of Civil Appeals affirmed. Grandmother appealed, and we retained the matter. REVERSED AND REMANDED. Thomas A. Daniel and Michelle K. Smith, OKC, OK, for Plaintiff/Appellant. Scott A. Hester and Jennifer E. Irish, Edmond, OK, for Defendant/Appellee. Winchester, J. ¶1 The issue in this case is whether Father and Stepmother's adoption of the Child, at which proceedings Grandmother did not appear, controls the outcome of Grandmother's previously filed and pending visitation petition. The trial court ruled that Grandmother's nonappearance divested her right to seek visitation, and the opposition of both parents in this newly created intact nuclear family precluded the court from authorizing such a visitation. The Court of Civil Appeals affirmed this judgment, and we granted certiorari. We find error warranting remand to the trial court to hear Grandmother's petition for grandparental visitation. BACKGROUND ¶2 Appellant, Mary Birtciel ("Grandmother"), is the Child's biological, maternal grandmother, and Appellee, Chad Allen Jones ("Father"), is the Child's biological father. In 2008, the Child's biological parents divorced, and Father later remarried his current wife ("Stepmother"). In the years following the divorce, the Child and her mother lived close to Grandmother until the mother died of cancer in January 2014. Since the mother's death, the Child has lived with Father. ¶3 In February 2014, Grandmother filed a petition in Oklahoma County for visitation of the Child. Father responded requesting that the petition be denied, and the court set a trial for October 2014. Four months later, in June 2014, Stepmother petitioned in Canadian County to adopt the Child while Grandmother's petition was pending. Father and Stepmother sent Grandmother notice of the adoption hearing, stating that neither Grandmother's presence nor consent was necessary at the hearing. ¶4 In July 2014, Father moved to dismiss Grandmother's petition for improper venue. In August 2014, the trial court in Canadian County awarded Stepmother adoption of the Child while Grandmother's petition was still pending in Oklahoma County. In subsequent briefs supporting his venue motion, Father also moved to dismiss Grandmother's petition on the grounds that the adoption created an intact nuclear family, thereby triggering the prohibition that "[u]nder no circumstances shall any judge grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents . . . object." 43 O.S. 2011, §109.4(B). Father also relied on 43 O.S. 2011, §109.4(D)(3)(a), which prohibits the grant of new visitation rights following adoption, but does not terminate previously granted rights. ¶5 Grandmother objected arguing that 43 O.S. 2011, §109.4(D) was inapposite since it "applies only to children born out of wedlock;" the adoption did not create a new, intact nuclear family as envisioned in 43 O.S. 2011, §109.4(E)(2)(b); and her right to seek visitation vested at the time of the mother's death and continued to date, pursuant to 43 O.S. 2011, §109.4(A)(1)(c)(3). The trial court denied Father's motion on venue grounds, but scheduled a later hearing on the newly asserted adoption issue. At this hearing in September 2014, the court found, sua sponte, that Grandmother's failure to appear at the adoption proceeding in Canadian County to reassert her visitation claim divested her of a right to seek visitation. Grandmother moved for reconsideration contending that the sua sponte ruling denied her due process. The trial court denied the motion. ¶6 Grandmother appealed from both orders urging that she did not lose her right to seek visitation by not appearing at the adoption, at which she lacked standing to do so; her due process rights were violated by the sua sponte ruling; and the adoption--granted subsequent to and while her visitation petition remained pending--equally did not divest her of this right. The Court of Civil Appeals, Division I, affirmed finding that because the adoption created a new, intact nuclear family unit and both parents opposed the visitation, Grandmother's petition should be denied. We granted certiorari to review the matter. Standard of Review ¶7 The best interest of the child provides a paramount consideration in matters regarding child custody and visitation rights. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. When reviewing the trial court's determination of grandparental visitation, this Court evaluates for an abuse of discretion. Murrell v. Cox, 2009 OK 93, ¶ 23, 226 P.3d 692, 697. Under this standard, this Court will reverse "only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law." Curry v. Streater, 2009 OK 5, ¶8, 213 P.3d 550, 554. Discussion ¶8 Grandmother asserts three issues in her petition for certiorari: standing, timing, and due process. First, she argues her nonappearance at the adoption did not divest her of a right to seek visitation since she had no standing to appear at the proceeding. Second, she argues this right vested at the time of disruption in the original intact nuclear family and was not lost by the subsequent adoption. Finally, she contends the trial court's ruling on a new argument raised at trial violated her due process rights. ¶9 Seeking foremost to "ensure and promote the best interests of the child in adoption," the Oklahoma Adoption Code provides the statutory requirements for matters of child custody and visitation rights. 10 O.S. 2011, §7501-1.2(A)(1). Concerning grandparental visitation, the Code provides that a grandparent may seek and be granted reasonable rights of visitation to the extent permitted by 43 O.S. 2011, §109.4. 10 O.S. 2011, §7505-6.5(C). ¶10 Under this provision, a court may grant a grandparent visitation where (1) the visitation is in the best interest of the child,1 (2) there is a showing of parental unfitness, or the grandparent rebuts the presumption that the fit parent is acting in the best interest of the child, and (3) there has been a disruption in the child's intact nuclear family unit, based on certain enumerated circumstances. 43 O.S. 2011, §109.4(A)(1)(a)-(c). Among these circumstances, a disruption may arise from divorce or death of the child's parent who is a child of the grandparent. 43 O.S. 2011, §109.4(A)(1)(c)(1), (3). In either situation, the grandparent seeking visitation must have had a preexisting relationship with the child predating the disrupting event. 43 O.S. 2011, §109.4(A)(1)(c)(1)-(3). I. Standing of Grandparent Seeking Visitation at Adoption Proceeding ¶11 This Court has previously held that a grandparent's rights to court-compelled visitation with a grandchild are statutory. Craig v. Craig, 2011 OK 27, ¶28, 253 P.3d 57, 64. In Craig, the Court found that the factors enumerated by statute in 43 O.S. 2011, §109.4 are 'the only circumstances [where] the grandparent visitation statute clearly divests parents of the right to decide what is in their child's best interest and gives that determination to the district court vesting grandparents with the standing to pursue visitation rights over the objections of the parents.' Id. ¶ 22 (quoting Murrell v. Cox, 2009 OK 93, ¶ 26, 226 P.3d 692, 698); In re Herbst, 1998 OK 100, ¶9, 971 P.2d 395, 397. Likewise, standing is statutorily determined, and adverse parties may not confer standing to another by their actions in litigation. In Re Adoption of I.D.G., 2002 OK CIV APP 22, ¶12, 42 P.3d 303, 306. ¶12 Here, Grandmother's standing extended only to purposes of resolving her visitation rights¾not to resolution of Stepmother's adoption. Consent to the adoption was necessary only from the Child's Father. 10 O.S. 2011, §7503- 2.1(A)(2)(a). Without the need for her consent, Grandmother was equally not entitled to notice. 10 O.S. 2011, §7503-3.1. Accordingly, she lacked standing to appear at the adoption proceeding. The trial court agreed. However, it reasoned that while Grandmother could not have appeared to object to the adoption, she could have appeared to reassert her visitation claims since she received notice. We disagree. The Adoption Code grants standing plainly and to the extent of the corresponding proceeding. The decision of Father and Stepmother to send courtesy notice--to which Grandmother was never statutorily entitled--has no effect on her standing. Indeed, it neither confers additional standing to her at the adoption nor diminishes her existent standing at the visitation proceeding. II. Timing: Impact of Adoption on Pending Visitation Petitions ¶13 While the Adoption Code prohibits a court from granting a new visitation right after adoption, it does not terminate a previously granted right. 43 O.S. 2011, §109.4 (D)(3)(a). Additionally, the Code contemplates pending visitation petitions in the required disclosures for adoption, stating that the adoption petitioner shall specify "[a] description of any previous court order, litigation or pending proceeding known to the petitioner concerning custody of or visitation with the minor." 10 O.S. 2011, §7505-3.1(A)(11). ¶14 By requiring this disclosure, the Legislature warrants the trial court's consideration of the full context of interests in the child's life so that it may adequately determine the best interest of the child. We do not seek to add to that warranty here. No text in the Adoption Code required Grandmother's presence at the adoption proceeding. Even the notice she received from Father and Stepmother confirms this. The required disclosure provision indicates that Grandmother's visitation proceeding should have been heard prior to any decision regarding Stepmother's subsequent request to adopt the Child. ¶15 Concerning the impact of the adoption, Grandmother's appearance or lack thereof at the adoption proceeding, not statutorily required of her, should not determine the outcome of her pending visitation petition. Indeed, Grandmother's properly filed, undecided petition arrived to the court four months before Stepmother petitioned to adopt and six months before the court granted the adoption. Grandmother followed all required procedure by filing, providing notice, and awaiting her day in court. She should not be penalized for another court's decision to resolve the separate and subsequently-filed action of adoption without reference to the impact of that ruling on her pending petition. III. Due Process & Effect of Adoption on Pending Visitation ¶16 If a grandparent has a vested right to seek visitation of her grandchild and followed the proper procedure to act on such right, a final decree of adoption granted before resolution of such a petition should not preclude the fruits of this right. Again, the purpose of the Adoption Code is to "ensure and promote the best interests of the child in adoption" not to award the victor in a race to the courthouse. 10 O.S. 2011, §7501-1.2(A)(1). Indeed, If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any pre-existing court-granted grandparental rights belonging to the parents of the deceased natural parent unless the termination of visitation rights is ordered by the court having jurisdiction over the adoption after opportunity to be heard, and the court determines it to be in the interest of the child. 43 O.S. 2011, §109.4(C). ¶17 Grandmother's right to seek visitation vested at the disruption of the intact nuclear family, first by the parent's divorce and then by the death of the Child's mother. 43 O.S. 2011, §109.4(A)(1)(c)(1), (3). The trial court focused on 43 O.S. 2011, §109.4 (D)(3)(a), providing that adoption prohibits the grant of new grandparental visitation rights but does not terminate previously granted visitation rights. However, by deciding the adoption prior to resolution of the visitation petition--thereby framing Grandmother's rights in reference to the subsequently filed, subsequently granted adoption--the court disposed of Grandmother's opportunity to ever obtain any "previously granted" visitation right. ¶18 Had the court resolved visitation in Grandmother's favor prior to the adoption proceeding, the Child's subsequent adoption would not have precluded Grandmother's visitation rights. To the contrary, Grandmother would have been statutorily entitled to an evidentiary hearing before any court could terminate or disrupt that previously granted right. 43 O.S. 2011, §109.4(F)(2); see also Scott v. Scott, 2001 OK 9, ¶ 6, 19 P.3d 273, 275-76. ¶19 The court's determination of the adoption before resolution of the previously filed visitation effectively deprived Grandmother of her statutory right to seek visitation of the Child. Accordingly, we reverse and remand to the trial court to hear Appellant's petition for grandparental visitation with consideration of the factors provided in 43 O.S. 2011, §109.4(E). REVERSED AND REMANDED ALL JUSTICES CONCUR. FOOTNOTES 1 Section 109.4(E)(1) delineates factors for the court to consider in determining the best interest of the child. In pertinent part these factors include: (a) the need and import of the continuing preexisting relationship with the grandparent, (b) the willingness of the grandparent to encourage the parental relationship, (c) the nature of the preexisting relationship between child and grandparent, (d) the nature of the relationship between child and parent, (e) the motivation of the grandparent to continue the relationship, (f) the motivation of the parent(s) denying visitation, (g)-(i) the mental and physical health of the grandparent, child, and parent(s), (j) the stability of the family unit and environment, (k) the moral fitness of the parties, and (m) the quantity of visitation requested and the potential adverse impact on the child.

bf080469-6efb-4395-ad03-12366772da6a

Blair v. Richardson

oklahoma

Oklahoma Supreme Court

BLAIR v. RICHARDSON2016 OK 96Case Number: 112535Decided: 09/20/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PAT BLAIR, an individual, Appellant, v. GAYLE RICHARDSON, an individual, TROY RICHARDSON, an individual, and MELLON TRUST OF NEW ENGLAND, NA as trustee of the UPS QUALIFIED STOCK OWNERSHIP PLAN AND TRUST and the UPS STOCK TRUSTS, Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I Honorable Lawrence Parish, Trial Judge ¶0 Plaintiff/Appellant Pat Blair brought an action alleging that a conveyance of real property from her grandmother to her sister, the Defendant/Appellee Gayle Richardson (grantee), was void because the grandmother (grantor) lacked legal competency and because the deed was executed under undue influence. The trial court ruled in favor of Richardson regarding both theories of recovery. The Court of Civil Appeals reversed, concluding that the grantor was rendered legally incompetent by operation of 43A O.S. 1961 §64. We hold that the grantor was legally competent to convey the real property, and that the deed was not executed under undue influence. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED. James W. Tilly, Tulsa, Oklahoma, for Appellant. Sam T. Allen, IV, Sapulpa, Oklahoma, for Appellees. KAUGER, J.: ¶1 The two dispositive questions presented are whether: 1) the enactment of 43A O.S. 1986 §1-1051 reestablished the legal competency of an individual previously admitted to a mental health facility and presumed incompetent without a separate competency proceeding; and 2) the conveyance of her real property was void as a result of undue influence.2 We hold that 43A O.S. 1986 §1-105 reestablished the legal competency of the individual conveying the property, and that the deed was not executed under undue influence. FACTS ¶2 Plaintiff/Appellant Pat Blair (Blair) and Defendant/Appellee Gayle Richardson (Richardson) are sisters. They grew up in Sapulpa, Oklahoma, the location of the subject real property. After graduating from high school, Richardson married and remained in Sapulpa, while Blair attended college in Oklahoma and moved to Texas. Their mother (mother) was the only child of Mabel Grigsby, their grandmother (grandmother). The mother and grandmother initially owned the real property as joint tenants with rights of survivorship. ¶3 After the mother's death, Richardson helped care for the grandmother. She occasionally assisted the grandmother with errands because the grandmother could not drive. Richardson took the grandmother shopping for clothing, and would drive her around town so that she could pay her bills. One day, the grandmother told Richardson that she wanted "everything" to go to her and her children. Richardson subsequently sought advice as to the preparation of deeds at a courthouse and obtained a copy of a deed form at an office supply store. Richardson then drove the grandmother to American Abstract in Sapulpa, where the deed was filled out. The grandmother conveyed the property to herself and Richardson as joint tenants with rights of survivorship on January 23, 1987. ¶4 The grandmother had dealt with mental health issues in her past. In May, 1966, the District Court of Creek County ordered her admitted to Eastern State Hospital for treatment and care. She remained there until she was released as an outpatient in July, 1966. Her outpatient status lasted until 1974, and there were no further hospitalizations. ¶ 5 The relevant statute in effect at the time of the grandmother's admittance to the facility in 1966 was 43A O.S. 1961 §64, which provided that: No person admitted to any institution in the Department shall be considered legally mentally incompetent except those admitted in accordance with the provisions of Sections 55 and 58 of this Title and those admitted under Section 59 of this Title who have been declared legally mentally incompetent elsewhere. (Emphasis supplied). Because the grandmother was admitted in accordance with 43A O.S. 1961 §55,3 she was automatically considered legally incompetent at the time of her admittance even though there was no separate proceeding to determine her competency. In 1986, § 64 was repealed and replaced by 43A O.S. 1986 §1-105. It provided that: No person admitted to any facility shall be considered or presumed to be mentally or legally incompetent except those persons who have been determined to be mentally or legally incompetent in separate and independent proceedings of an appropriate district court. Therefore, the law in effect at the time of the grandmother's admittance in 1966 rendered her legally incompetent without a separate proceeding, while the law in effect at the time of the conveyance in 1987 required a separate proceeding to render her legally incompetent. ¶6 The grandmother died in November, 1987. At a hearing to terminate the joint tenancy, the District Court of Creek County found that Richardson owned all interest in the property. Notice of the proceeding was mailed to Blair at her home in Texas. From 1988 to 1998, Richardson rented the property and distributed a percentage of the rental proceeds to both Blair and their father. In 1988, Richardson sold the property for $85,000 and invested the funds in shares of UPS stock that were owned by her husband, Defendant/Appellee Troy Richardson. This stock is held by Defendant/Appellee Mellon Trust of New England. A disagreement arose regarding ownership of the proceeds of the real property sale and Blair filed suit on November 1, 2007, in the District Court of Creek County. ¶7 Blair alleged that the 1987 deed was void for two alternative reasons and requested that a constructive trust be imposed on the stock. First, she asserted that the grandmother lacked the legal capacity to convey the property. A person judicially determined to be incompetent cannot convey property.4 Blair argued that because the grandmother's admission to the facility in 1966 had the effect of rendering her legally incompetent, and because her legal competency was never restored, she lacked the capacity to convey property. Second, Blair asserted that the deed was tainted by undue influence. ¶8 At a bench trial on December 11-12, 2013, the trial court found in favor of Richardson under both theories of recovery. It concluded that the grandmother was mentally and legally competent at the time of the conveyance and that the conveyance was therefore valid. It also concluded that Blair failed to establish that the grandmother was acting under undue influence when the deed was executed. ¶9 Blair appealed on February 4, 2014, and the Court of Civil Appeals reversed and remanded. It reasoned that because the grandmother was considered legally incompetent at the time of her admittance to the facility and because her capacity was never judicially restored, she lacked the capacity to convey the property. It reversed based on a lack of capacity, and consequently did not address the issue of undue influence. We granted certiorari to determine whether 43A O.S. 1986 §1-1055 affected the grandmother's legal competency, and whether the deed was executed under undue influence. We hold that the grandmother was legally competent to convey the real property, and that the deed was not executed under undue influence. I. THE CONVEYANCE WAS NOT VOID DUE TO LACK OF CAPACITY. A. The Law in Effect at the Time of the Conveyance Governed the Conveyance. ¶10 Blair argues that the application of 43A O.S. 1986 §1-105 to the grandmother constitutes a retroactive application of that statute in violation of Art. 5, § 54 of the Oklahoma Constitution, which provides that: The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute. (Emphasis supplied). According to Blair, the grandmother's admission hearing constitutes "proceedings" begun by virtue of 43A O.S. 1961 §64, and therefore the repeal of 43A O.S. 1961 §64 cannot change the legal effect of any order made pursuant to the admission hearing. ¶11 Richardson, however, maintains that the admission proceedings were not begun by virtue of 43A O.S. 1961 §64. Instead, she claims, the proceedings were begun by virtue of 43A O.S. 1961 §55.6 Section 55 provided the means through which the court could be petitioned and the means through which the court could grant the admission order, while § 64 had the effect of rendering the grandmother legally incompetent after the proceedings had concluded. ¶12 Title 43A O.S. 1986 §1-105 was the law at the time of the conveyance. To determine whether a statute should be applied retroactively or prospectively, the statute should be interpreted to give effect to the intent of the Legislature.7 While a statute is generally presumed to apply prospectively,8 it may be applied retroactively if the statute's language implies that the Legislature intended to extend the benefits of the statute to situations already in existence at the time of the statute's passage.9 The text of the statute is not the only decisive factor.10 Even in the absence of language specifying that the statute is intended to remedy existing conditions, such an intention may be inferred by probing the purpose of the statute.11 A statute is interpreted to further that purpose, and to champion the broad public policy goals that underlie it.12 ¶13 We have previously recognized legislative intent to apply a statute retroactively although the statute was devoid of any express retroactive language. In re Bomgardner, 1985 OK 59, ¶ 10, 711 P.2d 92 involved the interpretation of a statute specifying the rights of grandparents to visit their grandchildren.13 The grandparents' daughter had died, and the daughter's husband refused to allow the grandparents access to their grandchild. The grandparents brought suit under the statute in effect at the time of that suit, which would have allowed them access to the child. The child's father successfully argued in the district court that the grandparent's claim was governed by the statute in effect at the time of the mother's death, which would not have allowed them access to the child.14 We held that the father could not "simply rely on the presumption against retroactive application."15 After considering the legislative policy goal of promoting the best interests of the child, we reversed the district court and held that the grandparents had standing to bring their claim under the statute even though it had not been enacted when their claim arose. ¶14 Similarly, the policy goals underlying the enactment of 43A O.S. 1986 §1-105 demonstrate legislative intent to extend the benefits of the statute to those previously presumed incompetent without a separate competency proceeding. Two of these goals are "to provide orderly and reliable procedures for commitment of persons alleged to be in need of treatment consistent with due process of law" and "to protect the rights of consumers hospitalized pursuant to law."16 ¶15 The application of 43A O.S. 1961 §64, which automatically declared the grandmother legally incompetent without a separate proceeding, disregards the Legislature's goal of according due process to persons allegedly in need of treatment. Due process17 is an orderly proceeding in which "the citizen has an opportunity to be heard, and to defend, enforce and protect his rights."18 There was no separate proceeding in which the grandmother had an opportunity to be heard and safeguard her rights. The grandmother had a single hearing to determine whether admission to a care facility was appropriate. She was later formally discharged after medical professionals determined that care was no longer required, and then lived the remainder of her life without any further hospitalization. Rendering her legally incompetent for an indefinite period based on this single hearing contravenes the Legislature's goal of providing due process to those in need of treatment. ¶16 The application of 43A O.S. 1961 §64 also disregards the Legislature's goal of protecting the rights of consumers hospitalized pursuant to law. Along with losing the right to contract and convey property,19 those declared incompetent can lose corporate membership interests and rights,20 professional licensing rights,21 and the ability to purchase firearms.22 If the repealed 43A O.S. 1961 §64 remained operative on the grandmother, then she automatically lost a number of important rights based on a brief period of mental health treatment that occurred in 1966. Denying the grandmother's right to convey property over twenty years after her hospitalization ended contravenes the Legislature's goal of protecting the rights of those hospitalized. ¶17 The law in effect in 1966, which had been repealed in 1977,23 had no bearing on the grandmother's legal competency when the deed was executed in 1987. Pursuant to 43A O.S. 1986 §1-105, the grandmother was legally competent at the time of the conveyance. B. Lack of Capacity Cannot be Established by Operation of Statutory Law. ¶18 Blair does not argue that the grandmother actually lacked the mental capacity required to convey property, but instead argues that the grandmother should be considered legally incompetent by operation of statutory law. Blair contends that because the grandmother's admission to the facility in 1966 had the effect of rendering her legally incompetent, and because her legal competency was never restored, she lacked the capacity to convey property. ¶19 It is Richardson's position that, irrespective of Blair's statutory operation argument, 43A O.S. 1961 §64 cannot be applied to the grandmother after her discharge from the hospital because doing so would be an unconstitutional denial of procedural due process. Richardson cites Tot v. United States, 319 U.S. 463, 467, 63 S. Ct. 1241, 1245, 87 L. Ed. 1519 (1943), in which the United States Supreme Court held that "a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed." According to Blair, there is no rational connection between the fact proved - that the grandmother required hospitalization for mental health care - and the fact presumed - that the grandmother was incompetent. ¶20 The lack of capacity can be established in three ways. The Title Examination Standards24 provide in part that: On or after June 3, 197725 , lack of capacity must be established (I) in a mental health case filed prior to that date, (ii) in a civil action or (iii) in a guardianship proceeding.26 The specification of items in a list implies the exclusion of all others.27 The word "must" is an affirmative command.28 So, lack of capacity to convey property can only be established by a mental health case filed before 1977, a civil action, or a guardianship proceeding. Therefore, lack of capacity cannot be established by operation of statutory law, and consequently the operation of 43A O.S. 1961 §64 cannot establish the grandmother's lack of capacity. ¶21 In addition, the grandmother's incapacity was not established by a mental health case filed before 1977, a civil action, or a guardianship proceeding. While the hearing in 1966 was a mental health case, it did not establish the grandmother's lack of capacity. The hearing determined that admission to the facility was appropriate, and the operation of 43A O.S. 1961 §64 established her lack of capacity. For similar reasons, her incapacity was not established in a civil action. Even assuming that the admission hearing was a "civil action," it determined only that admission to the facility was appropriate. Furthermore, this hearing was not a guardianship proceeding. Guardianship proceedings arise under Title 30, The Oklahoma Guardianship and Conservatorship Act.29 Because the grandmother was admitted under 43A O.S. 1961 §55, which did not appoint her a guardian, her incapacity was not established by a guardianship proceeding. ¶22 Accordingly, the grandmother was legally competent at the time of the conveyance because of the enactment of 43A O.S. 1986 §1-105, and because lack of capacity to convey property cannot be established by operation of statutory law. II. THE DEED WAS NOT EXECUTED UNDER UNDUE INFLUENCE. ¶23 Blair argues that because Richardson and the grandmother were in a confidential relationship, and because Richardson assisted in the preparation of the deed, a presumption arose that the deed was tainted by undue influence. Blair further argues that because Richardson failed to offer evidence sufficient to overcome this presumption of undue influence, the conveyance of the property was void. ¶24 Richardson maintains that the burden of demonstrating undue influence remains with Blair because Richardson and the grandmother were not in a confidential relationship and because Richardson did not actively participate in preparation of the deed. Blair further argues that Richardson did not carry this burden. ¶25 Undue influence occurs when a person in a position of confidence or authority uses that confidence or authority to obtain an unfair advantage over another.30 To void a conveyance, the influence must "destroy the grantor's free agency" and "substitute the will of another for that of the grantor."31 Mere suspicion or the possibility of undue influence cannot defeat an otherwise valid conveyance,32 and the burden of demonstrating undue influence rests with the party alleging it.33 However, that burden can be shifted, and a rebuttable presumption of undue influence arises if the contesting party can establish that (a) a confidential relationship existed between the grantor and another, stronger party; and (b) the stronger party actively assisted in the preparation of the deed.34 ¶26 Richardson and the grandmother were not in a confidential relationship. A confidential relationship is "a fiduciary relationship and exists whenever trust and confidence are placed by one person in the integrity and fidelity of another."35 We found a confidential relationship between a testator and her daughter/beneficiary in In re Estate of Holcomb, 2002 OK 90, ¶ 18, 63 P.3d 9. There, the daughter was the attorney in fact of the testator, and had check-writing privileges on her bank account. The testator had a stroke, which left her bedridden and paralyzed, and she permanently lived in the daughter's home. On the other hand, we failed to find a confidential relationship between a grantor and his nephew in Phillips v. Phillips, 1964 OK 214, ¶ 18, 395 P.2d 803. There, the nephew frequently visited his uncle and helped him after he fell ill. Rather than a confidential relationship, we determined that there was merely fondness between family members. ¶27 None of the facts that created a confidential relationship in Holcomb, supra, exist in the present case. Richardson had no control over the grandmother's financial or legal affairs, and the grandmother never lived with Richardson. Their relationship was similar to that of the uncle and nephew in Phillips, supra. Richardson and the grandmother spent time together, and Richardson occasionally helped the grandmother with errands. Indeed, the extent of the uncle's dependency on the nephew in Phillips was greater than was the grandmother's dependence on Richardson. The nephew in Phillips took his uncle to Michigan, Texas, and Louisiana for medical treatment, while Richardson merely took the grandmother shopping in Sapulpa. No confidential relationship existed between Richardson and the grandmother. ¶28 Nor did Richardson actively assist in the preparation of the deed. To give rise to a presumption of undue influence, the active participation must go to the substance of the act,36 and the presence of the grantee in the room at the time of the conveyance does not constitute active participation.37 We found active participation in the preparation of a trust by a trustee in Estate of Gerard v. Gerard, 1995 OK 144, ¶ 25, 911 P.2d 266. There, the trustee personally contacted the attorney by telephone and instructed him to make changes to the trust while the grantor lay on his deathbed. In White v. Palmer, 1971 OK 149, ¶ 30, 498 P.2d 1401, we found active participation in the preparation of a will by a beneficiary when the beneficiary added handwritten amendments to the rough draft of the will. ¶29 In the present case, Richardson's involvement in the preparation of the deed included asking about deeds at a courthouse, obtaining a copy of a deed at an office supply store, and driving the grandmother to the abstract company where the deed was filled out. While Richardson may have participated in the preparation of the deed, she did not actively participate in the preparation. Unlike in Gerard and White, she did not propose any changes or amendments to the deed. The deed was merely a standard form that was filled out at the grandmother's direction. ¶30 Because Richardson and the grandmother were not in a confidential relationship, and because Richardson did not actively assist in the preparation of the deed, the trial court correctly refused to presume that undue influence was exerted by Richardson. The burden of demonstrating that undue influence was exerted remained with Blair, and she failed to carry it. ¶31 Antle v. Hartman, 1944 OK 43, ¶ 1, 145 P.2d 756 included a fact pattern similar to the present case. There, the plaintiff and defendant were sisters. After their mother had conveyed all of her real property to the defendant, the plaintiff brought suit, alleging that the conveyance was void because the mother was mentally incompetent and the deed was executed under undue influence. We concluded that the grantor was competent and that no undue influence occurred. The defendant had provided care for her mother for a number of years, while the plaintiff did not live nearby. We found that the conveyance was an appropriate and appreciative act given the circumstances, and that "influences which arise out of the affection, confidence and gratitude of a parent to a child and inspire a gift are natural and lawful." ¶32 While not the grandmother's child, Richardson helped the grandmother after the grandmother's only child had passed away. In Antle, the defendant spent significant time with her mother and the plaintiff did not live nearby. Similarly here, Richardson and the grandmother lived in Sapulpa and spent time together, while Blair lived in Texas. The gift given by the grandmother could have naturally arisen out of the resulting affection and gratitude. ¶33 Richardson was neither in a confidential relationship with the grandmother, nor did she actively assist in the preparation of the deed. Therefore, no presumption of undue influence arose, and Blair failed to carry her burden of demonstrating that any undue influence was exerted. Accordingly, the deed was not executed under undue influence. CONCLUSION ¶34 The Legislature intended for the enactment of 43A O.S. 1986 §1-105 to ensure that commitment procedures were consistent with due process, and to protect the rights of those hospitalized. Continuing to apply 43A O.S. 1961 §64, which automatically considers individuals legally incompetent without a separate competency proceeding thwarts, rather than furthers, these legislative policy goals. Title 43A O.S. 1961 §64, which had been repealed, had no bearing on the grandmother's legal competency when the deed was executed. In addition, the means by which the lack of capacity can be established has been expressly specified. The operation of statutory law was not included, and therefore lack of capacity cannot be established by the operation of 43A O.S. 1961 §64. Consequently, the conveyance was not void due to lack of capacity. ¶35 Nor was the conveyance void due to undue influence. Richardson and her grandmother were not in a confidential relationship, and Richardson's involvement in the procurement of the deed did not rise to the level of active participation. No presumption of undue influence arose and Blair failed to demonstrate that it occurred. Accordingly, the conveyance of the subject real property was valid. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED. REIF, C.J., KAUGER, WATT, EDMONDSON, COLBERT, GURICH, JJ., concur. COMBS, V.C.J., WINCHESTER, TAYLOR, JJ., dissent. FOOTNOTES 1 Title 43A O.S. 1986 §1-105 provides: No person admitted to any facility shall be considered or presumed to be mentally or legally incompetent except those persons who have been determined to be mentally or legally incompetent in separate and independent proceedings of an appropriate district court. 2 A third issue considered at trial was Defendant/Appellee Richardson's assertion of a statute of limitations defense. The trial court determined that Richardson was equitably estopped from asserting a statute of limitations defense because her actions may have led Plaintiff/Appellant Blair to believe that Blair owned one-third of the proceeds of the real property sale. Because we conclude that Blair's claims fail on the merits, the statute of limitations issue will not be addressed. 3 Title 43A O.S. 1961 §55 provides in pertinent part: The father, mother, husband, wife, brother, sister or child, over the age of eighteen (18) years, of a person alleged to be mentally ill, or mentally retarded, or a peace officer within the county in which the alleged mentally ill person resides or is a patient or may be, may petition the County Court, upon which is hereby conferred jurisdiction, or the judge thereof, of any county for an order directing the admission of said person to a hospital or institution for the care of the mentally ill, such petition to contain a statement of the facts upon which the allegation of mental illness is based and because of which the application for the order is made. *** 4 Title 15 O.S. 2011 §24 provides: After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity, he may make a will, though his restoration is not thus determined. 5 Title 43A O.S. 1986 §1-105, see note 1, supra. 6 Title 43A O.S. 1961 §55, see note 3, supra. 7 Starkey v. Oklahoma Dep't of Corr., 2013 OK 43, ¶ 21, 305 P.3d 1004; Houck v. Hold Oil Corp., 1993 OK 166, ¶ 16, 867 P.2d 451; In re Bomgardner, 1985 OK 59, ¶ 10, 711 P.2d 92. 8 In re Bomgardner, 1985 OK 59, ¶ 10; Wickham v. Gulf Oil Corp., 1981 OK 8, ¶ 13, 623 P.2d 613; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 7, 859 P.2d 1081. 9 In re Bomgardner, 1985 OK 59, ¶ 10; Wickham, 1981 OK 8, ¶ 13. 10 In re Bomgardner, 1985 OK 59, ¶ 10; Wickham, 1981 OK 8, ¶ 13. 11 In re Bomgardner, 1985 OK 59, ¶ 10; Wickham, 1981 OK 8, ¶ 13. 12 World Pub. Co. v. White, 2001 OK 48, ¶ 10, 32 P.3d 835; Haggard v. Haggard, 1998 OK 124, ¶ 1, 975 P.2d 439; Price v. Southwestern Bell Tel. Co., 1991 OK 50, ¶ 7, 812 P.2d 1355. 13 Title 10 O.S. 1981 §5. 14 Title 10 O.S.Supp. 1978 §5. 15 In re Bomgardner, 1985 OK 59, ¶ 10. 16 Title 43A O.S. 1986 §1-104 provides that: The Oklahoma Legislature hereby declares that the public policy of this state is to assure adequate treatment of persons alleged to be in need of mental health treatment or treatment for drug or alcohol abuse, to establish behavioral standards for determination of dangerousness of persons in need of such treatment, to allow for the use of the least restrictive alternative in the determination of the method of treatment, to provide orderly and reliable procedures for commitment of persons alleged to be in need of treatment consistent with due process of law, and to protect the rights of consumers hospitalized pursuant to law. 17 Due process of law is guaranteed by the United States Constitution, U.S. Const. Amend. XIV, and the Oklahoma Constitution. Okla. Const. Art. II, §7. 18 Derr v. Weaver, 1935 OK 1223, ¶ 12, 47 P.2d 573; Pryor v. W. Paving Co., 1919 OK 222, ¶ 12, 184 P. 88. 19 Title 15 O.S. 2011 §24, see note 4, supra. 20 Title 18 O.S. 2011 §2036. 21 Title 59 O.S. 2011 §637(A)(14). 22 Title 21 O.S. 2012 §1289.10. 23 Title 43A O.S. 1961 §64 was first amended in 1977. 43A O.S.Supp. 1977 §64 provided: No person admitted to any medical facility shall be considered or presumed to be mentally or legally incompetent except those persons who have been determined to be mentally or legally incompetent in separate and independent proceedings of an appropriate district court. 24 In Knowles v. Freeman, 1982 OK 89, ¶ 16, 649 P.2d 532, this Court unanimously held that because the Title Examination Standards were adopted by the Oklahoma Bar Association and accepted by practitioners in the State, they are a persuasive authority. 25 See note 23, supra. 26 Title 16 O.S. 2011 Ch. 1, App., 4.2 provides: In the absence of actual or constructive notice to the contrary, it is presumed that a grantor has mental capacity to convey. An adjudication of incompetency in a sanity or mental health case filed prior to June 3, 1977, pertaining to a grantor constitutes constructive notice of lack of capacity. Mental health cases filed on or after June 3, 1977, pursuant to 43A O.S.A. § 54.4 (now § 5-401) do not result in adjudications of incompetency. On or after June 3, 1977, lack of capacity must be established (I) in a mental health case filed prior to that date, (ii) in a civil action or (iii) in a guardianship proceeding. If lack of capacity has been established, restoration may be accomplished by: A. MENTAL HEALTH CASES. 1. Final order of the court having jurisdiction of a proceeding pursuant to 43A O.S.A. § 7-112. 2. Final order of the court having jurisdiction pursuant to 43A O.S.A. § 111. 3. Filing with the district court clerk in the original proceedings a certificate of restoration to competency pursuant to 43A O.S.A. §§ 7-110 & 7-111. B. GUARDIANSHIP PROCEEDINGS. 1. Final order of the court of the county in which the person was adjudged insane or mentally incompetent pursuant to 30 O.S.A. §§ 3-116 (formerly 58 O.S.A. § 854). 2. Final order of the court having jurisdiction discharging the guardian without appointing another guardian, 30 O.S.A. §§ 3-117 (formerly 58 O.S.A. § 855). 27 Atkinson v. Halliburton Co., 1995 OK 104, ¶ 24, 905 P.2d 772; Newblock v. Bowles, 1935 OK 120, ¶ 14, 40 P.2d 1097; Cornell v. McAllister, 1926 OK 814, ¶ 17, 249 P. 959. 28 Fuller v. Odom, 1987 OK 64, ¶ 7, 741 P.2d 449; Sneed v. Sneed, 1978 OK 138, ¶ 3, 585 P.2d 1363; Oklahoma Alcoholic Beverage Control Bd. v. Moss, 1973 OK 45, ¶ 11, 509 P.2d 666. 29 Title 30 O.S. 2011 §3-111 provides in part that: A. At the hearing on the petition the court shall determine whether or not it is necessary to appoint a guardian of the person, property or both. If a guardian is needed, the court shall determine: 1. when a general or limited guardian of the person of the subject of the proceeding is requested, the essential requirements for the health and safety of the subject of the proceeding and the skills and knowledge necessary to meet those requirements; 2. when a general or limited guardian of the property of the subject of the proceeding is requested, the type and amount of the financial resources of the subject of the proceeding, the essential requirements for managing the financial resources, and the skills and knowledge necessary to manage the financial resources; 3. the nature and extent of the incapacity of the subject of the proceeding, if any; and 4. whether by clear and convincing evidence the subject of the proceeding is an incapacitated or partially incapacitated person. *** 30 Title 15 O.S. 2011 §61 provides: Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him. 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. 31 Tate v. Murphy, 1949 OK 228, ¶ 42, 217 P.2d 177; Montgomery v. Willbanks, 1947 OK 50, ¶ 10, 181 P.2d 240. 32 Tate v. Murphy, 1949 OK 228, ¶ 42; Myers v. Myers, 1927 OK 394, ¶ 33, 266 P. 452; Kindt v. Parmenter, 1921 OK 330, ¶ 7, 200 P. 706. 33 In re Estate of Holcomb, 2002 OK 90, ¶ 18, 63 P.3d 9; Matter of Estate of Maheras, 1995 OK 40, ¶ 8, 897 P.2d 268; Matter of Estate of Beal, 1989 OK 23, ¶ 14, 769 P.2d 150. 34 In re Estate of Holcomb, 2002 OK 90, ¶ 18; Matter of Estate of Maheras, 1995 OK 40, ¶ 8. 35 In re Estate of Holcomb, 2002 OK 90, ¶ 22; Fipps v. Stidham, 1935 OK 855, ¶ 18, 50 P.2d 680. 36 In re Estate of Holcomb, 2002 OK 90, ¶ 23; White v. Palmer, 1971 OK 149, ¶ 27, 498 P.2d 1401. 37 Matter of Estate of Beal, 1989 OK 23, ¶ 17; White v. Palmer, 1971 OK 149, ¶ 27; Hubbell v. Houston, 1967 OK 138, ¶ 32, 441 P.2d 1010.

89010332-f426-4856-aab1-79b40c1396e8

Logan County Conservation Dist. v. Pleasant Oaks Homeowners Ass'n

oklahoma

Oklahoma Supreme Court

LOGAN COUNTY CONSERVATION DISTRICT v. PLEASANT OAKS HOMEOWNERS ASSOCIATION2016 OK 65Case Number: 113313; Comp. w/113318Decided: 06/07/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. LOGAN COUNTY CONSERVATION DISTRICT, An Oklahoma conservation district, Petitioner/Appellee,v.PLEASANT OAKS HOMEOWNERS ASSOCIATION, PHYLLIS JEAN CROWDER and JOHN HERMAN WHITE, JR., Respondents/Appellants,andPLEASANT OAKS LAKE ASSOCIATION INC.; PLEASANT OAKS HOMEOWNERS ASSOCIATION; PHYLLIS CROWDER; JOHN HERMAN WHITE, JR.; DALE BROOMFIELD; SUSAN BROOMFIELD; MICHAEL BRADLEY BROOMFIELD; EARL B. ENGLAND; KATHY K. ENGLAND; NORBERT K. WENGER; MICHAEL D. FAIRLESS; WANDA E. FAIRLESS; QUAYYUM QAISAR JALIL AND TASNIM RAZIA BEGUN REVOCABLE TRUST DATED OCTOBER 12, 2005; DONOVAN R. UNDERWOOD; MARION WALTON; LEON WALTON; CHARLES C. LINHARDT; JENNIFER D. LINHARDT; GEORGE SCOTT WELLS; MARILYN ELKINS WELLS; ED BETCHAN; ERICKA BETCHAN; WILLIAM JACK SKAGGS; WINONA L. SKAGGS REVOCABLE TRUST; ERWIN DALE LEAVERTON; THELMA J. LEAVERTON; WILLIAM LOUIS KEEL; DANNY CLINE; THOMAS EUGENE PLUNKETT; CARLA R. PLUNKETT; JAY W. BARNETT; TASA C. BARNETT, Respondents. APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY,STATE OF OKLAHOMA, HONORABLE PHILLIP C. CORLEY ¶0 Homeowners and Homeowners Association appealed from a judgment finding Conservation District was authorized to enter properties to perform rehabilitation work on a floodwater control structure. Construction of the dam was originally completed in 1973. In approximately 2006, the dam was reclassified as a greater safety risk, necessitating rehabilitation work. Easements authorized the Conservation District to construct, operate, maintain, and inspect the dam. Plain language in the deeds creating the easements included a right to ensure the dam's structural integrity through a rehabilitation project. TRIAL COURT'S JOURNAL ENTRY OF JUDGMENT IS AFFIRMED Stephen L. McCaleb, Derryberry & Naifeh, Oklahoma City, Oklahoma, Appellants Phyllis Jean Crowder and John Herman White, Jr.Lou Keel, 105 N. Hudson, Suite 300, Oklahoma City, Oklahoma, Appellant Pleasant Oaks Lake Association, Inc., Kelly F. Monaghan and Lori Gilliard, Holloway & Monaghan, Tulsa, Oklahoma, Appellee Logan County Conservation District GURICH, J. Factual Background & Procedural History ¶1 Cottonwood Creek watershed is an area covering approximately 379 square miles in parts of Logan, Oklahoma, Canadian and Kingfisher Counties. The area was prone to flooding, and in March of 1962, Logan County Soil and Water Conservation District No. 9 (LCSWCD), Cottonwood Creek Water and Soil Conservancy District No. 11 (CCWSCD), and the United States Department of Agriculture (USDA), prepared a plan to alleviate dangers associated with uncontrolled water flow. Proposed structural measures under the plan included construction of fifty-eight floodwater retarding structures designed to detain water, store sediment deposits, and enhance the state's water supply. One of the structures included in the work plan was Floodwater Retarding Structure No. 54 (FWRS 54). ¶2 On September 24, 1962, D.C. Fitzwater and Odessa Ann Fitzwater granted an easement (Fitzwater Easement) to CCWSCD and LCSWCD, which read, in part: [F]or the purpose of: For or in connection with the construction, operation, maintenance and inspection of the following described works of improvement to be located on the above described land; for the flowage of any waters in, over, upon or through such works of improvement; and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such works of improvement: a. floodwater retarding structure No. 54[.] 1. In the event construction of the above described works of improvement is not commenced within 120 months from the date hereof, the rights and privileges herein granted shall at once revert to and become the property of this Grantor, his heirs and assigns. 2. This easement includes the right of ingress and egress at any time over and upon the above described land of the Grantor and any other land of the Grantor adjoining said land for the purpose of construction, the checking of operations, and the inspection and maintenance of the structure. 3. There is reserved to the Grantor, his heirs and assigns, the rights and privileges to use the above described land at any time, in any manner and for any purpose that does not interfere with construction, operation, maintenance and inspection of the structure. . . . . 5. The Grantee is responsible for operating and maintaining the above described works of improvement. . . . . The Fitzwater Easement covered the NW ¼ of Section 36, Township 15 North, Range 3 West. Additional easements were obtained from several landowners in the area for the purpose of water storage (Impoundment Easements). The Impoundment Easements encompassed the same tract of land and authorized the following usage: [F]or the purpose of: For the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by those certain works of improvement which are described and are to be located as follows: a. floodwater retarding structure No. 54[.] Aside from geographical boundaries, neither the Fitzwater nor Impoundment deeds contained mandatory design specifications for FWRS 54.1 Logan County Conservation District (LCCD) was created in 1971, and became the successive owner of the easements. ¶3 Construction of FWRS 54 was finalized in November of 1973. At the time of its completion, FWRS 54 was classified as a significant hazard class (b) dam, which indicates uncontrolled flooding could cause significant damage to agriculture and infrastructure. ¶4 In 1977, LCSWCD executed a deed returning part of the Fitzwater and Impoundment Easements to the current servient estate holders.2 Several homes have since been built around what is referred to by local residents as Pleasant Oaks Lake. The impounded water created by FWRS 54 is approximately 22-acres. Local residents built a common recreational ground and concrete boat ramp. ¶5 Changes in safety criteria and the development of houses downstream compelled the USDA and Oklahoma Water Resources Board (OWRB) to recast FWRS 54 as a high hazard class (c) dam.3 This new classification was based on changes in safety criteria, the development of 26 houses downstream, and the potential for loss of life following a structural failure. In March of 2006, the USDA issued a written proposal calling for the rehabilitation of FWRS 54. The USDA watershed plan suggested multiple repairs and improvements to FWRS 54, including: (1) removal of the existing principal spillway tower; (2) construction of a new principal spillway tower; (3) replacement of the existing principal spillway outlet; (4) replacement of the existing principal spillway conduit; (5) installation of an impact basin at the pipe outlet; (6) construction of an outlet channel; (7) construction of a vegetated wave berm; (8) and extension of the auxiliary spillway with a slope change in the exit channel. In approximately February 2008, LCCD tendered a written application to the OWRB seeking authorization to perform rehabilitation work on FWRS 54 as recommended by the 2006 USDA work plan. OWRB approved the application on March 11, 2008. ¶6 On March 25, 2011, LCCD filed a petition with the District Court of Logan County, seeking a declaratory judgment allowing it to perform rehabilitation work on FWRS 54. The petition alleged the Fitzwater and Impoundment Easements vested LCCD with the right to complete the rehabilitation project. Property owners Phyllis Jean Crowder and John Herman White, Jr. answered and claimed that the proposed work did not fall within the scope of the original easements. Accordingly, Crowder and White maintained the rehabilitation project would lead to an improper taking of their land. Pleasant Oaks Lake Association (POLA) and individual homeowners also answered, alleging the project would constitute a taking requiring payment of compensation. ¶7 On April 11, 2012, LCCD filed a motion seeking summary judgment. The motion asserted LCCD was authorized to perform work on FWRS 54 based upon the unambiguous language contained in deeds establishing the Fitzwater and Impoundment Easements. LCCD maintained that the intended purpose of the easements, and the terms "construction, operation, maintenance and inspection," authorize the district to rehabilitate FWRS 54. Consequently, LCCD claimed there could be no taking of private property entitling Respondents to compensation. LCCD's motion included a sworn affidavit from a professional engineer to demonstrate all rehabilitation efforts would take place entirely within the area described in the Fitzwater and Impoundment Easements.4 Respondents filed a joint objection to LCCD's motion and contemporaneously requested summary judgment be issued in their favor. POLA and the homeowners argued the terms "operation and maintenance" contained in the deeds were not synonymous with the proposed rehabilitation of FWRS 54. However, the objection did not include any evidentiary material to refute LCCD's allegations of material facts. The sole attachments to the motion were a trial court order and a subsequent opinion from the Court of Civil Appeals from an unrelated case.5 These decisions found a similar rehabilitation proposal in Sequoyah County was broader in scope than permitted by the original easement. On October 31, 2012, the trial judge denied both summary judgments. ¶8 POLA and individual homeowners renewed their motions for summary judgment on March 14, 2014. In their supporting brief, POLA claimed that by emptying the lake, LCCD's actions would kill fish, eliminate wildlife, and devastate the quality of life for the homeowners for an unknown length of time. POLA also alleged that rehabilitation of FWRS 54 would cause "real and valid damage" to the homeowners' property. Once more, POLA provided no scientific or other evidence to support these contentions.6 In a separate motion, Respondents Crowder and White also sought partial summary judgment. Their motion included an affidavit alleging that nineteen of the twenty-one lots in their possession were within the boundaries of the easement and would "likely be affected by the rehabilitation." Crowder and White further argued Petitioner had no right to trespass on their land to perform reconstruction work on FWRS 54. The motion was based upon pure speculation and did not include any scientific or other evidence to refute the alleged scope of the easements or how the project would "affect" their properties. ¶9 LCCD filed objections to the respective motions. Therein, LCCD reasserted its contentions: (1) the properties were subject to the Fitzwater and Impoundment Easements; and (2) the proposed rehabilitation on FWRS 54 was within the scope of the original instruments. LCCD maintained the trial court, in its previous ruling, had improperly relied on extrinsic evidence to interpret the unambiguous deeds. LCCD further suggested legislation adopted in 2008 demonstrated the terms operation and maintenance include necessary repairs or rehabilitation work on flood control structures in Oklahoma.7 Finally, LCCD alleged the easements imposed no obligation to maintain the reservoir at a specific water level. ¶10 On July 21, 2014, the trial court held a hearing and denied Respondents' motions for summary judgment. However, after reconsidering his previous order, the trial judge sustained LCCD's motion for summary judgment. In the September 19, 2014 Journal Entry of Judgment, the trial judge concluded 27A O.S.Supp. 2008 § 3-3-411 "was intended by the legislature to be applied retroactively and such intent is necessarily implied from the language used in the statute."8 Accordingly, the lower court ruled LCCD had the right under the Fitzwater and Impoundment Easements to perform rehabilitation work on the dam; and therefore, LCCD had no obligation to tender compensation or maintain the lake water level. ¶11 On October 17, 2014, Respondents Crowder and White filed a Petition in Error in Case No. 113,313. On October 20, 2014, Respondents POLA and individual homeowners filed a Petition in Error in Case No. 113,318. We issued an order making the two proceedings companion cases. LCCD filed a motion requesting the proceeding be retained, which we granted. Standard of Review ¶12 Whether summary judgment was properly granted is a question of law subject to de novo review. Benefiel v. Boulton, 2015 OK 32, ¶ 10, 350 P.3d 138, 142). We must determine whether the "trial court erred in its application of the law and whether there is any genuine issue of material fact." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084). To determine the presence or absence of a genuine issue of material fact, inferences derived from evidentiary materials must be viewed in a light most favorable to the non-moving party. Wood v. Mercedes-Benz of Okla. City, 2014 OK 68, ¶ 4, 336 P.3d 457, 459. Analysis ¶13 The issue presented on appeal is whether the language in the original Fitzwater and Impoundment Easements authorize LCCD to enter the Respondents' property to perform rehabilitation work on FWRS 54 without payment of compensation. The original easements were created by deed. According to the terms of the deed creating the Fitzwater Easement, grantee was authorized to construct, operate, maintain, and inspect FWRS 54. Additionally, the conveying instruments provided the grantee with the right of "ingress and egress. . .over and upon the [subject property]. . .for the purpose of construction, the checking of operations, and the inspection and maintenance of [FWRS 54]." Most important, the deed expressly imposed a duty on the grantee to ensure FWRS 54 was in proper repair and functioning safely, by specifying "[t]he Grantee is responsible for operating and maintaining [FWRS 54]." (emphasis added). The instruments creating the Impoundment Easements provided the right to utilize the property for "permanent storage or temporary detention" of water brought about through the construction of FWRS 54. They also afforded the same basic rights and privileges as the Fitzwater Easement. ¶14 An easement creates a legal relationship between two parties. The easement holder is referred to as the dominant estate; and the owner of land subject to an easement is known as the servient estate. Bouziden v. Alfalfa Elec. Coop., Inc., 2000 OK 50, ¶ 16, n.10, 16 P.3d 450, 456. An easement affords its titleholder a limited non-possessory right to use a parcel of land for a specific purpose. Restatement (Third) of Prop., Servitudes § 1.2 (1) (2000); see also Kraettli Q. Epperson, 5A Vernon's Okla. Forms 2d, Real Estate § 4.100 (2d ed. 2015). An easement may be created via deed, by implication, or through prescriptive use. Head v. McCracken, 2004 OK 84, ¶ 11, 102 P.3d 670, 676. The owner of an easement may utilize the servient estate in such a manner that is reasonably necessary to carry out the servitude's intended purposes and to allow enjoyment of the rights bestowed by the easement. Burkhart v. Jacob, 1999 OK 11, ¶ 11, 976 P.2d 1046, 1049; see also Restatement (Third) of Prop., Servitudes §§ 4.10, Comment c (2000). Neither party may utilize the property in a manner which interferes with or unduly burdens the rights of the other. Restatement (Third) of Prop, Servitudes §§ 4.9 - 4.10 (2000). ¶15 When property rights originate by deed, the scope of those rights should be construed in the same manner as other written contracts. Beattie v. State ex rel. Grand River Dam Auth., 2002 OK 3, ¶ 8, 41 P.3d 377, 380. Of paramount concern is the intention of the parties at the time of the original conveyance. Pub. Serv. Co. of Okla. v. Home Builders Ass'n of Realtors, Inc., 1976 OK 120, ¶ 6, 554 P.2d 1181, 1184. If a written instrument creating an easement "is plain and unambiguous, and there is no uncertainty therein, the intent of the parties is to be determined by the language of the written instrument alone." Beattie, ¶ 12, 41 P.3d at 382; Johnson v. Butler, 1952 OK 207, ¶ 6, 245 P.2d 720, 722. Words "'must be viewed in the context of the contract and must be given [their] plain ordinary meaning.'" Lucas v. Bishop, 1998 OK 16, ¶ 11, 956 P.2d 871, 874. An agreement is only considered ambiguous if it is susceptible to different interpretations; but courts should refrain from creating an ambiguity by "using a forced or strained construction, by taking a provision out of context, or by narrowly focusing on [a] provision." Osprey L.L.C. v. Kelly-Moore Paint Co., Inc., 1999 OK 50, ¶ 14, 984 P.2d 194, 199. Only when the contractual document is unclear or inconsistent may courts utilize extrinsic evidence to ascertain intent. Beattie, ¶ 12, 41 P.3d at 382. ¶16 In the present case, the deeds creating the Fitzwater and Impoundment Easements authorized use of the subject real property to construct FWRS 54. The deeds also authorized the grantee, its successors and assigns, to enter the property for the purposes of "the checking of operations, and the inspection and maintenance of the structure." But the deeds did much more than permit these actions, they also obligated LCCD to operate and maintain FWRS 54 to ensure it was in good repair and serving its intended purpose. The critical terms contained in the easements are not words of limitation; but instead provide broad rights to allow the grantee and its successors to carry out acts necessary to ensure the integrity of FWRS 54 and the safety of the public. ¶17 This Court has previously considered the terms "operation" and "maintenance" for purposes of statutory interpretation and concluded words should be read utilizing ordinary meanings unless contrary to the intent and purpose of the statute. Medina v. State, 1993 OK 121, ¶¶ 6-7, 871 P.2d 1379, 1382; see also Heath v. Guardian Interlock Network, Inc., 2016 OK 18, ¶ 16, -- P.3d - (recognizing "maintenance means the upkeep of property or equipment and maintain means to keep in good condition by making repairs, correcting problems, etc."). ¶18 Respondents argue that 27 O.S.Supp. 2008 § 3-3-411 cannot be applied retroactively to interpret the Fitzwater and Impoundment deeds. At the time the parties executed the Fitzwater and Impoundment Easements, the Conservancy Act of Oklahoma (82 O.S. 1961 § 531, et seq.) was in effect. Under this Act, conservancy districts were established throughout the state to assist with flood prevention, regulating the flow of water systems, and the development of water for domestic, agricultural, and commercial use. 82 O.S. 1961 § 541(b). To carry out this statutory purpose, districts were permitted to build, operate, maintain and repair reservoirs, canals, levees, and dams. 82 O.S. 1961 § 541(b)(7). Districts were further authorized under the federal Watershed Protection and Flood Prevention Act, to work with the USDA "in carrying out, maintaining, and operating the works of improvement authorized by said Act." 82 O.S. 1961 § 541.1. The language of the 1961 Conservancy Act mirrors the language contained in the original deeds. The intended purpose of FWRS 54 and the original easements was the permanent eradication of flooding in the Cottonwood Creek watershed. The parties to the 1962 conveyance intended the servitudes to be perpetual, or at least open-ended; empowering the easement owner to respond to public safety issues presented by aging or damaged levees, dams, and other flood prevention infrastructure. Because the 2008 statutory clarification is consistent with the original purpose of the flood prevention statutes and projects, it was not error for the trial court to rely on the enactment to determine the proposed rehabilitation of FWRS 54 was within the scope of the original easements. ¶19 Considering the unambiguous terms of the deeds, together with the easements' intended purpose of protecting citizens and property in this state, we must find that the subject easements permit necessary rehabilitation to keep FWRS 54 functioning in a safe manner.9 It would be illogical to sanction the performance of routine annual inspections and maintenance, but prohibit repairs which are necessary to prevent catastrophic failure of the structure. Dams and other water retarding structures have finite lifespans. Despite being a structure with a limited functional duration, the conveying instrument confers a right of enjoyment "for so long as [grantees] should use said easement for the purpose described above." Thus, the parties to the original easements anticipated the need, at some point in the future, to repair, rebuild, rehabilitate or improve FWRS 54 as necessary. Prior decisions from this Court support our conclusion. ¶20 For example, in Nazworthy v. Ill. Oil Co., 1936 OK 150, 54 P.2d 642, a landowner brought suit for an alleged taking following an oil company's relocation of an oil pipeline on the landowner's property. In 1913, Empire Refining Company laid pipeline along a state highway. Id. Eight years later Empire transferred its interest in the pipeline to Illinois Oil Company. Id. In 1927, the State Highway Commission decided to widen and improve the highway. Id. ¶ 3, 54 P.2d at 642. The Commission negotiated and contracted with an adjacent property owner to acquire a perpetual easement needed for the highway construction. Id. To complete the roadwork it became necessary to relocate the pipeline, and the Highway Commission directed Illinois Oil to reposition the pipeline outside of the anticipated roadwork. Id. ¶ 4, 54 P.2d at 642. After completing the pipeline relocation the landowner filed suit for an alleged taking of private property without compensation. Id. A jury trial was held and a verdict was returned in favor of the Illinois Oil. Id. ¶¶ 6, 8, 54 P.2d at 643. Landowner appealed and this Court concluded the placement of the pipeline was within the highway easement and not an "additional burden or servitude as would entitle the abutting landowner to additional compensation for such use." Id. ¶ 28, 54 P.2d at 646. In reaching this decision, we recited with approval a passage from the case of Cater v. Nw. Tel. Exch. Co., 63 N.W. 111, 112 (Minn. 1895): If there is any one fact established in the history of society and the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; and next a way for vehicles drawn by animals - constituting, respectfully, the iter, the actus, and the via of the Romans. And thus the methods of using public highways expanded with the growth of civilization until today our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use. Id. ¶ 17, 54 P.2d at 643-644 (emphasis added). ¶21 A similar case stemming from a landowner's claim of entitlement to compensation for alterations and improvements to a public road easement was decided in Bogart v. CapRock Commc'ns Corp., 2003 OK 38, 69 P.3d 266. In Bogart, an aggrieved landowner had purchased property which was burdened by two easements acquired in connection with the construction a highway. A telecommunications company obtained permission from the Sequoyah County Commissioners to lay fiber optic cables within the easement boundary. Id. ¶ 6, 69 P.3d at 269. The landowner brought suit, alleging inter alia that the installation of fiber optic cables burdened the property with an additional servitude and constituted a taking without just compensation. Id. ¶ 11, 69 P.3d at 270. We retained the case and found Oklahoma statutes specifically authorized placement of communication lines within highway or road easements. Id. ¶ 16, 69 P.3d at 272. However, that did not end our inquiry. Although authorized to place the telecommunications cables, we considered whether compensation was warranted based on the company's use of landowner's property. Id. Relying on our prior opinion in Nazworthy we determined "the installation of fiber optic cables within the confines of a public right of way or easement on which public highways or roads are established does not impose any increased servitude on the land which would entitle the landowner to additional compensation under the facts presented." Id. ¶ 20, 69 P.3d at 273; see also Town of Ft. Cobb v. Robinson, 1944 OK 74, ¶¶ 8-9, 143 P.2d 122, 123 (allowing easement holder to construct a fence to protect water wells as reasonably incident to the primary easement). ¶22 Unless, specifically prohibited by a conveying instrument, the owner of an easement is entitled to conduct repairs and improvements necessary to ensure enjoyment. This is true so long as repairs or improvements do not exceed the rights bestowed by the original easement or unduly burden the servient estate. Restatement (Third) of Prop., Servitudes §§ 4.10 (2000). "The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude." Id. see also H.D.W., Right of owner of easement of way to make improvements or repairs thereon, 112 A.L.R. 1303 (1938) ("It is a general rule that the owner of an easement of way may prepare, maintain, improve, or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate, nor an unwarranted interference with the rights of common owners or the independent rights of others.").10 ¶23 An almost identical dispute was resolved by the Kansas Supreme Court in the City of Arkansas City v. Bruton, 166 P.3d 992 (Kan. 2007). In Bruton, the Kansas Supreme Court evaluated an easement conveyed to a municipality for the purpose of constructing "a dike along the Arkansas River to protect the City and its inhabitants from flooding." Id. at 995. The easement authorized the City of Arkansas City to "construct and maintain" a dike on the subject property.11 Id. Throughout the first 65 years, the City carried out ordinary maintenance and upkeep on the dike, but did not perform any major upgrades or repairs. Id. at 996. In April of 2000, the City began efforts to implement significant improvements to the dike. Id. Property owners objected to reconstructing the dike, arguing the planned modifications exceeded the scope of the original easement and amounted to a taking of private property. Id. On review, the Kansas Supreme Court disagreed, holding the terms "maintain" and "maintenance" included the right of the City to reconstruct the dike. Id. at 1011.12 To reach this decision, the Court relied on a simple definition of the word "maintain" and the inherent right of an easement holder to construct, improve or repair his or her easement under the Restatement. Id. We find the simple straightforward analysis in Bruton to be compelling. ¶24 Progress and technological advancements are a certainty in this world. It would be unreasonable to conclude an easement which authorizes the construction of a flood prevention structure, designed to ensure the safety and well-being of Oklahoma's citizens, also prohibited future repairs or improvements. According to the 2006 Supplemental Watershed Plan, if FWRS 54 were to suffer a catastrophic failure, it would endanger the lives of multiple households downstream.13 Unless specifically proscribed by the conveyance, the dominant estate owner has an inherent right to make reasonably necessary improvements and repairs, so long as they are performed within the confines of the easement boundary and are designed to carry out the original intended purpose of the easement grant. see Weeks v. Wolf Creek Indus., Inc., 941 So. 2d 263, 269 (Ala. 2006) (noting "the law favor[s] changes and improvements for the benefit of the dominant estate so long as the manifest intent of the parties does not disallow the changes and the burden to the servient tenement is not increased."). ¶25 In POLA's motion for partial summary judgment, the association asserted that draining the lake to reconstruct FWRS 54 and permanently lowering the lake's water level would amount to a taking of private property for which compensation must be paid. POLA provided no authority in support of this conclusory argument. Generally, propositions which are unsupported with authority are deemed waived. Hough v. Hough, 2004 OK 45, ¶ 16, 92 P.3d 695, 703. Nevertheless, none of the deeds creating the respective easements mandated a particular water level. Indeed, the express language of the Fitzwater and Impoundment Easements authorized water retention to be either temporary or permanent in nature. The conveying instrument stated its purpose was "[f]or the permanent and temporary detention, either or both." Naturally, the water level will fluctuate during periods of drought or high rainfall. Homeowners do not dispute that the retained water was never intended to create a private body of water. ¶26 On this issue we agree with the rationale adopted by the Nebraska Supreme Court in Kiwanis Club Found., Inc., of Lincoln v. Yost, 139 N.W.2d 359 (Neb. 1966), and find its guiding principles should be applied to the present case. Therein, the Yost Court held that an owner of a dam had no obligation to maintain the dam's existence to benefit upper riparian property owners.14 Id. at 361. Unless an agreement provides otherwise, a dam owner would be free to "return a river to its natural state by removing or destroying the dam." Id. In other words, "construction and maintenance of such a dam does not create any reciprocal rights in upstream riparian proprietors based on prescription, dedication, or estoppel." Id. Accordingly, we find the Respondents have neither a right to demand water levels be maintained at a particular depth, nor a right to compel the continued existence of any water retarding structure. Conclusion ¶27 We hold that the unambiguous terms of the instruments creating the Fitzwater and Impoundment Easements authorize LCCD to enter the subject property to perform rehabilitation work on FWRS 54. The need to perform rehabilitation FWRS 54 is undisputed and necessary to continue serving its intended purpose. The property owner's purchased their respective properties subject to burdens associated with the Fitzwater and Impoundment Easements. Further, the trial court correctly determined LCCD is not required to maintain any particular level of retained water. As such, the trial court correctly awarded summary judgment in favor of LCCD. TRIAL COURT'S JOURNAL ENTRY OF JUDGMENT IS AFFIRMED ¶28 ALL JUSTICES CONCUR FOOTNOTES 1 A work plan was prepared in 1962 by several conservancy districts affected by the Cottonwood Creek watershed, together with help from the USDA. This work plan is the only document which provides design specifications pertaining to the initial assembly of FWRS 54. 2 Although not entirely clear in the record, it appears as though the portion returned to the landowners was either (a) not needed in furtherance of constructing FWRS 54; or (b) unnecessary for impoundment of water. 3 OWRB is vested with the power to carry out the provisions of the Oklahoma Dam Safety Act (82 O.S. 2011 § 110.1, et seq.), including "rules relating to hazard and size classifications, minimum standards for design, operation and maintenance of dams." 82 O.S. 2011 § 110.5. 4 Chris Stoner is a professional Engineer with the National Resource Conservation Service, a division of the USDA. 5 The unpublished Court of Civil Appeals opinion in Case No. 106875 is distinguishable and unpersuasive. More importantly, the record in the present case lacks any evidentiary material which would support Respondents' position that the proposed rehabilitation of FWRS 54 exceeds the scope of the original easements. 6 Letters/affidavits from several homeowners were attached to POLA/Homeowners' motion. However, none of this evidentiary material challenged the scope of the Fitzwater or Impoundment Easements, or the authority of LCCD to exercise its rights under the easements. 7 Title 27A O.S.Supp. 2008 § 3-3-411(B) of the Conservation District Act became effective in 2008,and provides: Pursuant to the Conservation District Act, the phrase "operation and maintenance" or "operate and maintain" as used in a variety of contractual documents, easements, statutes, rules, and other legal authority by the conservation districts and their assigns shall be interpreted to: A. Encompass the terms repair, modification, alteration, rehabilitation, upkeep, upgrade, improvement, construction, reconstruction, decommission, and inspection; and B. Benefit the state and conservation districts. 8 Journal Entry of Judgment dated September 19, 2014, Rec. Vol. IV, Doc. 15. 9 see Rest. (Third) of Prop., Servitudes § 4.1(1) (2000) ("A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.") 10 Decisions around the United States consistently recognize the inherent right of an easement holder to maintain, repair, or improve the property interest in furtherance of its intended purposes. see e.g., Woods v. Shannon, 344 P.3d 413, 417 (Mont. 2015); Koch v. J & J Ranch, L.L.C., 299 P.3d 689, 694, 696 (Wy. 2013); Parris Properties, L.L.C. v. Nichols, 700 S.E.2d 848, 853-854 (Ga. Ct. App. 2010); Koenigs v. Mitchell Cty. Bd. of Supervisors, 659 N.W.2d 589, 594 (Iowa 2003); State Soil & Water Conservation Comm'n v. Stricklett, 555 S.E.2d 800, 804 (Ga. Ct. App. 2001); Shallow Run Ltd. P'ship v. State Highway Admin., 686 A.2d 1113, 1121 (Md. 1996); C/R TV, Inc. v. Shannondale, Inc., 27 F.3d 104, 108 (4th Cir. 1994); Swango Homes, Inc. v. Columbia Gas Transmission Corp., 806 F. Supp. 180, 185 (S.D. Ohio 1992); Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo. App. 1984). 11 Unlike the Fitzwater and Impoundment Easements, the easement in Bruton included technical plans and specifications for building the floodwater retarding structure. 12 see also, Hous. Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664 (Tex. 1967) (holding "the terms 'operate' and 'maintain' in the granting clause [of an easement] are at least broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary."); United States v. Green Acres Enters, Inc., 86 F.3d 130, 134 (8th Cir. 1996) (finding "the unambiguous language [of an easement] makes clear that the right to maintain the levees includes the right to repair breaches in the levees caused by floods."); Talty v. Commonwealth Edison Co., 347 N.E.2d 74, 76 (Ill. App. Ct. 1976) (recognizing that although easements did not contain words reconstruct or renew, terms construct, operate, use and maintain authorized replacing electrical lines to modernize system). 13 Interestingly, the 2006 plan contains the following excerpt: "Seismic: The Cottonwood Creek Watershed is located in an area of very low potential seismic activity. Therefore, seismic activity presents a low potential mode of failure for [FWRS 54]." Appendix to Petitioner's Motion for Summary Judgment, Rec. Vol. I, Doc. 2, Exhibit G. 14 The Yost Court believed that property owners who build or improve land adjacent to an artificial lake are clearly on notice of the risks inherent with such development: Construction and maintenance of a dam over a long period of years may well tend to lead persons owning property above the dam to believe that a permanent and valuable right has been acquired, or is naturally present. The very fact that a manmade dam is obviously present, however, is sufficient to charge them with notice that the water level above the dam is artificial as distinguished from natural, and that its level may be lowered or returned to the natural state at any time. Id. at 361.

61193d26-c49f-41c1-aa76-157a43bd11c0

Watkins v. Central State Griffin Memorial Hospital

oklahoma

Oklahoma Supreme Court

WATKINS v. CENTRAL STATE GRIFFIN MEMORIAL HOSPITAL2016 OK 71Case Number: 113427Decided: 06/21/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JACKIE WATKINS, as Guardian Ad Litem for JANE DOE, Plaintiff/Appellant, v. CENTRAL STATE GRIFFIN MEMORIAL HOSPITAL; OKLAHOMA DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES; and DR. ASMA MUDASSIR, in her official capacity as a resident physician and individually, Defendants/Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Plaintiff sought damages under multiple theories on behalf of her nineteen year old pregnant daughter arising from an allegedly unauthorized pelvic exam conducted by a male nurse. Plaintiff asserts that the applicable limitations period is extended because of defendants' alleged attempt to cover up the nurse's wrongful actions. We hold that the question of when a plaintiff possesses sufficient information to trigger the running of the statute of limitations is one of fact. We find the relevant facts to this issue are disputed and we vacate the Court of Civil Appeals' opinion affirming the trial court's grant of summary judgment in favor of defendants. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; AND MATTER REMANDED FOR FURTHER PROCEEDINGS Ryan M. Oldfield, Oklahoma City, Oklahoma, for Appellants Bartlett H. Ramsey, Oklahoma City, Oklahoma, for Appellants Wilson D. McGarry, Office of the Attorney General, for Appellees Richard Neal Mann, Office of the Attorney General, for Appellees WATT, J.: ¶1 We granted certiorari in this matter to address two issues: (1) is the limitations period in the Governmental Tort Claims Act, 51 O.S. §§ 151 - 258, tolled when state employees allegedly withhold facts critical to the analysis of potential negligence claims; and (2) does the record contain disputed facts material to this analysis? We answer both questions in the affirmative. We hold that the resolution of these issues contains questions for the trier of fact, making summary adjudication improper. PROCEDURAL HISTORY ¶2 The trial court plaintiff, Jackie Watkins ("Watkins"), in her capacity as guardian of her adult daughter, Jane Doe, seeks damages against defendants, Central State Griffin Memorial Hospital ("Griffin"), Oklahoma Department of Mental Health and Substance Abuse Services ("ODMHSAS") and Dr. Asma Mudassir ("Mudassir") 1, in her official capacity as a resident physician and individually. Plaintiff alleges (1) negligence, (2) negligent hiring, retention, and supervision, (3) joint enterprise, (4) agency, (5) respondeat superior, and (6) fraud against Defendants. ¶3 Griffin and ODMHSAS are state institutions and claims against these defendants are subject to the Oklahoma Governmental Tort Claims Act ("GTCA"), 51 O.S. 2011, §§ 151- 258. Griffin is a hospital dedicated to clients in need of inpatient psychiatric treatment. Mudassir was a resident physician at Griffin during the relevant time period. ¶4 Watkins filed her Petition, February 1, 2013, more than one year after Ms. Doe's inpatient hospital admission to Griffin. 2 Defendants filed a Motion for Summary Judgment urging her claims were barred by the one year limitation set forth in the GTCA. Defendants urge Plaintiff's claims are matters which were known or reasonably should have been discovered at the time of Ms. Doe's hospital admission. The trial court granted judgment in favor of Defendants. The Court of Civil Appeals ("COCA") affirmed, finding the undisputed material facts establish that Plaintiff knew, or in the exercise of reasonable diligence should have known, enough facts as of the time of the hospital admission to bring her claims. ¶5 Watkins alleges that misleading and/or deceptive actions by Griffin employees prevented her from discovering information essential to her claims. She further reasons the one year limitation period set out in the GTCA should not begin to run until such time as a diligent person could be reasonably expected to have discovered the relevant information. Watkins also asserts that the doctrine of estoppel should apply to prevent the Defendants from raising the time limitations bar of the GTCA as a defense to her claims. Under these circumstances, Watkins urges she could not have learned information crucial to her claim until she was appointed guardian of Ms. Doe. ¶6 The record contains evidence of two different levels of potential deception by Defendants. There is evidence that Griffin employees provided false information to civil and criminal investigators and that they may have acted in concert with regard to the deception. There is also evidence that Griffin then subsequently misled Watkins and Ms. Doe regarding the investigation results. In addition, pivotal conclusions reached by criminal investigators were derived from false information provided by Defendants. In light of this alleged deception, it is a question for the trier of fact to determine whether Watkins or Ms. Doe acted reasonably in not pursuing a civil action under the GTCA within one year of the hospital admission. We have long recognized that the determination of when a plaintiff possesses sufficient information to initiate the running of the statute of limitations is a question of fact. Wing v. Lorton, 2011 OK 42, ¶ 18, 261 P.3d 1122, 1127. FACTUAL BACKGROUND ¶7 Ms. Doe was admitted to Griffin at 4:00 a.m. on March 19, 2011, for treatment of suicidal thoughts. At the time of admission, she was nineteen years old, five months pregnant and lived at home with her mother, Watkins. Later that day, Ms. Doe told Nicholas Schiavo, R.N., ("Schiavo"), she was having abdominal pain and was concerned she was having contractions. Schiavo took Ms. Doe into an exam room with no other witness present to check her for bleeding. He remained present in the room and watched while Ms. Doe removed her clothing from the waist down. Schiavo did not provide Ms. Doe with a sheet, drape or a gown. He then put on a glove, and conducted a pelvic exam while she was undressed on the exam table. No female staff was present. They were alone in the exam room for nine minutes. Some time later, Schiavo asked Ms. Doe if she was still involved in a relationship with the father or interested in dating other people. He also offered to perform another pelvic exam when she felt better. ¶8 Ms. Doe filed a complaint with Griffin prior to her March 21, 2011, discharge, claiming she felt violated by Schiavo conducting a "pelvic exam with no doctor or female present then joked and asked if [Ms. Doe] wasn't with the father was [she] looking to see other people and touched [her] shoulder". 3 Ms. Doe expressed she felt very violated by these actions. It is undisputed that Watkins knew about the specific concerns raised in the complaint submitted to Griffin. Watkins followed up with Griffin about the status of this complaint. She was told a formal investigation of the incident was being conducted. ¶9 An investigation by the Office of Inspector General ("OIG") of ODMHSAS, included reviewing the medical chart, relevant Griffin policies and procedures, and interviews of Schiavo, Mudassir and nurse managers. The medical chart does not contain a written order for a pelvic exam. Schiavo told the OIG investigator that he did not have a physician order for a pelvic exam and he contacted Mudassir after he did his assessment. A nurse coordinator employed with ODMHSAS for twenty years said that Griffin nurses do not conduct pelvic exams. Pregnant consumers needing this level of care are transported to a medical hospital for such an exam. 4 Mudassir told the OIG investigator that prior to the exam, Schiavo contacted her by telephone to inform her that Ms. Doe was having pains and possible contractions. Mudassir says she gave Schiavo a verbal order to conduct a pelvic exam. Mudassir says she did not document her order on Ms. Doe's chart because she was too busy. The investigator probed Mudassir and "[w]hen confronted with information that Mr. Schiavo told the investigator that he did not obtain a verbal order prior to the exam, Dr. Mudassir responded that he did contact her prior and obtained a verbal order." 5 ¶10 OIG concluded that: (1) the evidence collected "supports the allegation that RN Nicholas Schiavo violated Oklahoma Administrative Code (OAC) 450:15-3-8 (Right to Freedom from Abuse, Neglect, or Mistreatment) by conducting a pelvic exam on consumer [Ms. Doe]"; 6 and (2) Schiavo placed Ms. Doe in an unreasonable risk of harm by conducting a vaginal exam in private, having no witnesses and asking questions that made her feel uncomfortable. Following the OIG investigation, Schiavo was terminated from Griffin. ¶11 Griffin representatives told Watkins and Ms. Doe that Schiavo performed the pelvic exam pursuant to physician orders and there was no wrongdoing by Schiavo. 7 Griffin did not provide a copy of the report to Watkins or Ms. Doe. Griffin did not tell Watkins that Schiavo's actions violated Griffin policies or that his actions resulted in termination of his employment. Watkins first learned about the lack of a written physician order, lack of physician notes and Schiavo's termination after being appointed as guardian of Ms. Doe. ¶12 During Schiavo's employment at Griffin, his nursing practice was restricted by the Oklahoma Board of Nursing ("OBN") by the terms of a "Supervised Practice Agreement" required by his participation in the OBN Peer Assistance Program 8. Under this agreement, it was mandatory for him to be supervised by another registered nurse working on the same unit for his entire shift.9 Griffin was aware of Schiavo's participation in the Peer program and the associated restrictions and requirements of this supervision agreement. ¶13 On March 30, 2011, the Griffin Director of Nursing contacted the Peer program to report that Schiavo was terminated from Griffin for "doing things with out(sic.) Dr. Orders; 'pelvic exams'". 10 On April 26, 2011, the Peer Assistance Committee met and found that Schiavo was non-compliant and in default with his Peer contract as follows: Item #8: Failure to follow the Supervised Practice Guidelines, working without a Supervisor present prior to approval by the Committee. Item #9: Participant failed to follow the Policy and Procedure of the employing institution, Griffin Memorial Hospital and subsequently was terminated. (Emphasis added). 11 Schiavo was terminated from the Peer program as a direct result of this default. The OBN then revoked Schiavo's registered nursing license because of his involuntary termination from the Peer program. 12 ¶14 Doe also filed a criminal report against Schiavo with the Cleveland county Sheriff's office. This investigation took place after the OIG interviews. This time, both Schiavo and Mudassir told the criminal investigator that Schiavo performed the pelvic exam at the direction and order of Mudassir. Although there is no written physician order in the medical chart or physician note, the criminal investigator relied on information from interviews that Mudassir gave a verbal order to Schiavo for the exam. The district attorney concluded if Schiavo acted under the direction of a licensed physician, the pelvic exam would be appropriate. Accordingly, there would be insufficient evidence of a crime. The Cleveland County district attorney's office declined to prosecute and cleared the case by exception. 13 The investigation results and decision of the district attorney was communicated to Watkins. She was again told that Schiavo performed the pelvic exam of Ms. Doe at the direction of the physician. ¶15 Ms. Doe's mental health condition remained unstable following her discharge from Griffin on March 21, 2011. During the fourteen months that followed, she spent approximately 107 days at mental health facilities for inpatient psychiatric treatment. At least 75% of these admissions were for court-ordered psychiatric treatment. In addition to chronic mental health issues, Ms. Doe has a cognitive disability. The record reflects that in elementary school her IQ was determined to be 68. ¶16 On May 10, 2012, Watkins was appointed guardian of her daughter. Shortly thereafter, she obtained medical records from Griffin that included the March 19, 2011, admission and a subsequent admission. Following her review, she discovered the medical chart did not contain a physician order or physician note relating to the vaginal exam by Schiavo. Watkins also found a reference in a discharge summary from a subsequent hospital stay suggesting there was more to the OIG investigation of Schiavo than she had been told. In addition, there is a note acknowledging that "[Ms. Doe] on a prior admission had been victimized by a staff member who was subsequently terminated because of that incident. The nature of the incident was sexual and [Ms. Doe] reported that simply being here was difficult." 14 Watkins learned for the first time in July, 2012, that: (1) Schiavo was terminated from Griffin in connection with this incident; (2) there was no physician order or note for the pelvic exam; and (3) Griffin viewed Ms. Doe as having been victimized by Schiavo's actions. ¶17 After learning these additional facts, on August 6, 2012, Watkins submitted a notice under the GTCA for "sexual assault"15 of Ms. Doe for the pelvic exam done during the Griffin inpatient admission. This notice was rejected as untimely stating it had been more than 12 months since the March 19, 2011, hospital admission. Watkins subsequently filed her Petition with the district court on February 1, 2013, which was almost two years after the incident and nine months after her appointment as guardian. ¶18 Discovery proceedings in this litigation revealed even more facts previously unknown to Watkins. These later discovered facts form the basis of some of Watkins additional claims. Deposition testimony from Schiavo suggests evidence of a potentially darker story of deceit and fraud. Schiavo invoked his Fifth Amendment right to remain silent and refused to answer a number of questions. This refusal alludes to the possibility of intentional deception by both himself and Mudassir. Schiavo invoked his right to remain silent when asked to admit to the following: He never called Mudassir prior to performing pelvic exam of Ms. Doe. He never received an order to perform the assessment on Ms. Doe. He performed unauthorized pelvic exams on at least two other females. He lied to the OIG investigator. He lied to the Cleveland County Sheriff's department. He lied to the OBN investigators. He lied to an investigator with the Attorney General's office. He conspired with Mudassir. He obstructed justice. He concealed facts. 16 Did [Schiavo] engage in the conspiracy or coverup to hide the facts of what really happened? 17 SUMMARY JUDGMENT STANDARD ¶19 An order granting summary judgment in favor of Defendants was filed on November 18, 2014. Plaintiff appealed and the Court of Civil Appeals affirmed, holding: (1) the discovery rule did not toll the limitations period under the GTCA because Watkins knew or in the exercise of reasonable diligence should have known sufficient facts as of March 19, 2011 to state a claim; and (2) the tolling provision of 12 O.S. 2011 § 96 does not act to toll the limitations period due to Ms. Doe's claimed legal disability. We hold that when Watkins knew or reasonably should have known sufficient facts to assert her claims involve disputed issues of material fact and are properly determined by the trier of fact. Accordingly, we need not address the issue of the tolling provision for a legal disability under 12 O.S. 2011 § 96. ¶20 Summary judgments are not favored and should only be granted when it is clear there are no disputed material fact issues. Fargo v. Hays-Kuehn, 2015 OK 56, ¶12, 352 P.3d 1223, 1227. We have consistently held that summary judgment should be denied where there are controverted material facts. Id. The appellate standard of review of a summary judgment is de novo. Wing v. Lorton, 2011 OK 42, ¶ 9, 261 P.3d 1122, 1125. ANALYSIS ¶21 The Oklahoma Governmental Tort Claims Act ("GTCA"), provides the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort. Smith v. City of Stillwater, 2014 OK 42, 328 P.3d 1192. The GTCA narrowly structures the method and time frame for bringing a tort claim against the State. 51 O.S. 2011 §156. The claimant is generally required to give notice and file a formal action within the prescribed statutory time period. Jarvis v. City of Stillwater, 1987 OK 5, ¶5, 732 P.2d 470, 473. ¶22 The notice provision of the GTCA furthers the following legitimate state interests: (1) prompt investigation with fresh evidence; (2) opportunity to correct dangerous conditions; (3) quick and amicable resolution of claims; and (4) allows fiscal planning to meet possible liability. Reirdon v. Wilburton Bd. Of Ed., 1980 OK 67 ¶ 4, 611 P.2d 239, 240. Although Ms. Doe's initial written complaint to Griffin was not an official GTCA notice, it furthered at least two of the identified state interests. The state was afforded a prompt investigation resulting in swift termination of Schiavo's employment as well as definitive action with the OBN. Griffin had the opportunity to acquire relevant information and implement corrective action. We find there is no legitimate state interest in protecting state action that results in misleading Ms. Doe or Watkins. ¶23 In Jarvis, the plaintiff, appealing from summary adjudication, sought application of the doctrine of estoppel to prevent the government from asserting the defense of the time limitation bar under the GTCA. Jarvis, supra. 1987 OK 5, 732 P.2d 470. We identified the specific types of allegations that will estop a defendant from raising this defense. 18 Included in this list are allegations of "false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action". 19 We noted that a fact question is generally raised by such allegations. However, the plaintiff in Jarvis failed to establish the requisite elements. Thus, we left undecided whether this theory can be invoked against a defendant who seeks to enforce the time limitations set out in the GTCA. 20 We find that Watkins' allegations of false and misleading actions by the state falls into one of the categories for estoppel and raises questions of fact. ¶24 Estoppel has been applied against the state or its agencies where "its interposition would further some principle of public policy or interest". Burdick v. Independent Sch. Dist., 1985 OK 49 ¶ 7, 702 P.2d 48, 53. (Emphasis added). The dispositive question raised by Watkins is whether under the facts presented, is there a prevailing public interest to create an exception from the strict limitation bar in the GTCA. Today we examine the application of estoppel under these facts and in light of allegations of potential fraud or concealment. ¶25 The record raises questions of fact regarding whether the state actively concealed or engaged in fraudulent or misleading conduct with respect to Ms. Doe's claims. Such factual issues are to be resolved by the trier of fact. Unlike the plaintiff in Jarvis who failed to establish any elements of estoppel, this record contains sufficient evidence suggesting misleading conduct or deception by the state. There is evidence that Griffin knew that Schiavo had no physician order for the exam. The Griffin Director of Nursing notified the OBN of Schiavo's termination of employment as a direct result of performing pelvic exam without physician orders. Watkins testified by affidavit that Griffin communicated that Schiavo had done nothing improper and his acts were pursuant to physician order. Such a representation is directly at odds with the report made by the Griffin Director of Nursing to the OBN. ¶26 There is also evidence to suggest that both Schiavo and Mudassir may have provided false information in the investigations conducted in the Griffin and criminal matters. Defendants argue that it was a representative from the criminal investigation and not a Griffin representative that led Watkins to believe there was a physician order for the pelvic exam. Defendants urge that it cannot be held as deceiving Watkins for information provided by the district attorney or sheriff's department. We find such an argument irrelevant. Any conclusion reached by the district attorney or the sheriff was a direct result from potentially false and misleading information provided by Griffin employees, Mudassir and Schiavo. ¶27 The record contains sufficient evidence to raise a question as to whether Watkins and Ms. Doe were misled, deceived or were provided false information. It is for the trier of fact to determine if Defendants' conduct was misleading and whether such conduct induced Watkins to refrain from bringing a timely action. ¶28 Under these very narrow facts, estoppel may be applied to a time limitations defense under the GTCA. In this unique instance, estoppel furthers legitimate state purposes of not rewarding potentially wrongful government conduct and avoiding liability in tort. Ms. Doe, who was a teenager at the time, was very fragile at the time of her Griffin admission. Griffin was to protect her and provide a safe environment. Instead, she was subjected to a pelvic exam that appears to have been done without a physician order and in violation of hospital policies. Next, the record suggests that she and Watkins were misled into believing that no wrongdoing occurred. This apparent deception is a second and separate potential harm from the initial unauthorized pelvic exam. The nurse's actions led to the termination of his employment with Griffin and the OBN revoked his nursing license. There is no legitimate state interest advanced by the state avoiding any potential liability in this matter through deceptive actions. ¶29 A statute of limitation is designed to run against those who "are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof." Seitz v. Jones, 1961 OK 283, ¶ 11, 370 P.2d 300, 302. The purpose of a limitations statute is to protect a defendant who might otherwise be compromised in defending a claim that has grown stale as a direct result of a person who has negligently failed to pursue their rights. Id. The record lacks evidence that Watkins or Ms. Doe acted negligently with respect to expressing concern about the incident with Griffin. To the contrary, Ms. Doe and Watkins notified Griffin of the concern surrounding the pelvic exam. Watkins then followed up with Griffin and was led to believe there was no reason for concern. Griffin had the benefit of a prompt and fresh investigation. There is no evidence that the timing of the filing of the Petition less than two years from the incident will compromise the government from defending a "stale"claim. In fact, Griffin had the benefit of an investigation and the assimilation of information within less than one month after the event. ¶30 We have also recognized the application of the discovery rule to toll the statute of limitations in general tort actions. Woods v. Prestwick House, Inc., 2011 OK 9, 247 P.3d 1183. This rule allows the limitation period to be tolled until such time as the person knows or in the exercise of reasonable diligence, should have known sufficient information to be aware of the claims. Id., 2011 OK 9 at ¶ 24, 247 P.3d at 1189. Whether a plaintiff has used diligence in the pursuit of a claim or when a plaintiff as a reasonably prudent person knew or should have known of a claim is a question to be resolved by the trier of fact considering the unique facts and circumstances. Wing v. Lorton, supra. 2011 OK 42, at ¶ 18, 261 P.3d 1122, 1127. ¶31 We hold under this very narrow set of facts, the doctrine of estoppel may be applied to bar the Defendants from asserting the defense of the one year time limitation of the GTCA. For this doctrine to apply, the trier of fact must first determine if there is sufficient evidence of defendants' false, fraudulent, or misleading conduct, or an affirmative act of concealment to exclude suspicion and preclude inquiry, to induce Watkins from timely bringing an action. We find such a determination rests solely with the trier of fact. We further find that it is for the trier of fact to determine when Watkins knew, or in the exercise of reasonable diligence should have known, sufficient information to be aware of her claims. Accordingly, the opinion from the Court of Civil Appeals is vacated, the district court's grant of summary judgment is reversed, and this matter is remanded to the district court for proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; AND MATTER REMANDED FOR FURTHER PROCEEDINGS REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, GURICH, JJ. - CONCUR WINCHESTER, TAYLOR, JJ. - DISSENT FOOTNOTES 1 Watkins initially included as a defendant, Nicholas Schiavo, the male nurse who conducted the pelvic exam on Ms. Doe. Before filing the Third Amended Petition, Watkins filed a dismissal without prejudice as to Schiavo after he filed for relief in bankruptcy. 2 For the relevant time period relating to Plaintiff's claims, Ms. Doe was admitted to Griffin on March 19, 2011 and discharged March 21, 2011. 3 See, Plaintiffs' Response to Defendants' Motion for Summary Judgment and Brief in Support, Plaintiff's Exhibit 3, "Griffin Memorial Hospital Complaint/Grievance Form, wherein Ms. Doe states, "Saturday, I (sic.) had contractions, I'm five months pregnant a staff nick Did a pelvic exam with no doctor or female present then joked and asked if I (sic.) wanted him to check me again After I felt better and was asking me if I wasn't with the father was I (sic.) looking to see other people and touched my shoulder I felt very violated. And talked to the female Doctor which she said it was wrong of him to make jokes and it was unprofessional but Did nothing I feel like he had no right or was qualified to Do so I feel action needs to be taken Due to this prior event so no woman should endure this type of Abuse this shouldn't go unoticed (sic.) at p. 411- 413. 4 See, Record, Tab 13, Plaintiffs' Response to Defendants' Motion for Summary Judgment and Brief in Support, Exhibit 3, ODMHSAS investigation file, Investigator Michael DeLong report. 5 See note 4, supra. 6 See, note 4, supra., 7 See, note 4, supra., Exhibit 6. 8 59 O.S. 2011, § 567.17. 9 See, Record Tab 20, Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment, Exhibit 4, "Supervised Practice Agreement: Nicholas C. Schiavo, RN, which provides in pertinent part: 4. Both the program participant and the supervising nurse are employed at the same facility working the same schedule during the assigned shift and are on the same unit/floor during the entire shift. At least one (1) of the supervising nurses must be present when the program participant is working. 10 See, note 4, supra., Exhibit 14, Peer Assistance Program, OBN, Log of Transactions for Nicholas Charles Schiavo. 11 See, note 4, supra., Exhibit 15, Before the Peer Assistance Committee, Termination/Finding of Default. 12 See, Record, Tab 20, Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment, Exhibit 6, OBN Licensure History Report. 13 See, note 4, supra., Exhibit 7, Cleveland County Sheriff's Office Criminal Investigation Division; "[Det. Sgt. Scott A. Singer] spoke with the nursing supervisor and Mr. Mays. Both assured me that by policy, only under the advice of a physician, are such examinations made. Normally, the protocol allows for the patient to be transported to Norman Regional Hospital Emergency Department and the examination done there. A caveat to the above policy is if a physician directs a registered nurse to perform an initial examination to determine if transport is necessary can one be performed at Griffin Hospital. As [Det. Sgt. Singer's] investigation continued, Mr. Schiavo contacted me and agreed to speak with me about the incident. He told me that [Ms. Doe] was on his ward...... [Schiavo] told [Det. Sgt. Singer] that when she complained of contractions, he contacted Dr. Asma Mudassir. Dr. Mudassir according to Schiavo and Randy Mays told Schiavo to conduct the examination and to report his findings as soon as possible. While not noted on the nursing notes, Dr. Mudassir confirmed this accounting." 14 See, note 4, supra., Exhibit 17, Discharge Summary, 10-14-2011 15 The formal complaint filed with Griffin during Ms. Doe's hospital stay was in the nature of sexual harassment not assault. 16 See, note 4, supra., Exhibit 1, Deposition of Nicholas Charles Schiavo, Volume I, May 21, 2014. Relevant excerpts include: Q. Okay. You would agree that before your assessment of [Ms. Doe], you never called Dr. Mudassir. Correct? A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. Okay. I think I had read in some prior statements that you had - - that you had said, I didn't call Dr. - - or Dr. Mudassir before the examination, but I called her afterwards. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. Would you agree that Dr. Mudassir never asked nor ordered you to perform the assessment on [Ms. Doe]? Record, p. 349. Q. Okay. And after the assessment was concluded, you didn't chart that assessment and that it took place or the findings of that assessment? A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. You would agree that you've performed similar assessments on at least two other women at Griffin Memorial? A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. Okay. Have you ever lied to police investigators? A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. Had - did you ever lie to Michael Long [the OIG investigator]? A. On advice of counsel, I respectfully request to invoke my Fifth Amendment right to remain silent. Q. Did you lie to any investigators for the nursing board? A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Q. Was there a time that you lied to the Cleveland County Sheriff's Department or their investigators? MR. KERNAL: Same thing. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. BY MR. OLDFIELD: Q. Was there ever a time that you ever lied to any law enforcement as it relates to this case: MR. KERNAL: Same thing. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. BY MR. OLDFIELD: Q. Have you ever lied to any investigator with the State or the Attorney General's Office? MR. KERNAL: Same thing A: On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. BY MR. OLDFIELD: Q: Have you ever conspired with Dr. Mudassir as it relates to this case? MR. KERNAL: Same answer. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. BY MR. OLDFIELD: Q. Have you ever obstructed justice in this case? MR. KERNAL. Same answer. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. Record 356-358 Record, pp. 356-358. BY MR. OLDFIELD: Q. Did you cover up or conceal any facts to any law enforcement regarding this case and the circumstances surrounding [Ms. Doe's] assessment and the orders that were given to you? MR. MCGARRY: Objection. A. On advice of counsel, I respectfully invoke my Fifth Amendment right to remain silent. BY MR. OLDFIELD: Q. Did you engage in a coverup or concealment of any facts as it relates to this case? A. On advice of counsel, I respectfully revoke my Fifth Amendment - - I respectfully invoke my Fifth Amendment right to remain silent. Record, pp. 363-364. 17 See, Record, Tab 15, Plaintiff's Motion for Partial Summary Judgment Against Defendants Central State Griffin Memorial Hospital and the Oklahoma Department of Mental Health and Substance Abuse Services and Brief in Support, Exhibit 1, Deposition of Nicholas Charles Schiavo, Volume 1. 18 "A fact question as to whether a defendant is estopped from interposing the defense of a time bar is generally raised by a plaintiff's allegations that the defendant had made (a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action." Jarvis at ¶4. 19 See note 18, supra. 20 See note 18, supra.

6ec18308-ba9f-41f7-8bd4-9714dfbc9d6e

American Natural Resources, LLC v. Eagle Rock Energy Partners, L.P.

oklahoma

Oklahoma Supreme Court

AMERICAN NATURAL RESOURCES, LLC v. EAGLE ROCK ENERGY PARTNERS, L.P.2016 OK 67Case Number: 113105Decided: 06/14/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. AMERICAN NATURAL RESOURCES, LLC, an Oklahoma limited liability company, Respondent/Appellant, v. EAGLE ROCK ENERGY PARTNERS, L.P., a Delaware limited partnership, and EAGLE ROCK MID-CONTINENT OPERATING, LLC, a Delaware limited liability company, EAGLE ROCK MID-CONTINENT HOLDING, a Delaware limited liability company, EAGLE ROCK MID-CONTINENT ASSET, LLC, a Delaware limited liability company, EAGLE ROCK ENERGY GP, L.P., a Delaware limited liability company, EAGLE ROCK ENERGY G&P, LLC, a Delaware limited liability company, Petitioners/Appellees. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Parties to an agreement regarding an area of mutual interest for the purposes of oil and gas exploration sought to determine their respective rights under the agreement. The agreement gave the respondents here the right to participate in wells in futuro. The petitioners here urged that the provision violated the rule against perpetuities. The district court agreed and granted judgment to the petitioners. The Court of Civil Appeals affirmed in part and reversed in part the district court and remanded the matter for further proceedings. This Court granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S ORDER AFFIRMED. Bradley K. Beasley, Boesche McDermott, LLP, Tulsa, Oklahoma; David A. Sturdivant, Cori D. Powell, Barrow & Grimm, P.C., Tulsa, Oklahoma; John W. Garland, Pain & Garland, Anadarko, Oklahoma; for Appellants. Graydon Dean Luthey, Jr., Terry D. Ragsdale, Bradley W. Welsh, Tammy D. Barrett, Gable & Gotwals, Tulsa, Oklahoma, for the Appellees. TAYLOR, J., ¶1 The questions before this Court are whether a clause in an agreement giving a limited liability company the right to participate in all future wells on unleased property violates Article II, Section 32 of the Oklahoma Constitution prohibiting perpetuities and whether a limited liability company is a life in being for purposes of Article II, Section 32 of the Oklahoma Constitution. We answer the first question in the affirmative and the second question in the negative. We find that the district court did not commit error in granting a motion to dismiss based on these two questions. I. BACKGROUND AND ALLEGATIONS ¶2 On August 23, 2005, Defendants' predecessor in interest, Encore Operating, L.P. and American Natural Resources (ANR), entered into a letter agreement with an effective date of September 1, 2005, regarding the development of an "area of mutual interest" (AMI). ANR agreed to assign Encore leases in the AMI, and, in exchange, Encore agreed to (1) drill a test well, (2) pay $350.00 per acre with "ANR delivering no less than seventy-eight percent (78%) net revenue interest," (3) allow ANR the option of participating in the test well, (4) give ANR a twelve and one half percent back-in after payout on the initial test well, (5) "pay $100,000 regarding the pooling covering the drillsite of the test well," and (6) allow ANR to participate in all future wells drilled in the AMI at any time whether or not the parties held a current lease. Defendants became Encore's successor in interest to the agreement by acquiring Encore's interest in the AMI. ¶3 The provision allowing ANR to participate in future wells (Option Provision) is at the heart of this controversy. It provides: 2. In all subsequent wells within the AMI, ANR shall have the right to participate in the prospect area with a twenty-five percent (25%) working interest . . . . ANR contends that Defendants have drilled and completed seventeen wells in the AMI without allowing ANR to participate in breach of this provision. II. PROCEDURAL HISTORY ¶4 ANR claimed damages for breach of contract and for intentional interference with prospective economic benefits, sought a declaration that it is entitled to participate in future wells drilled in the AMI, and sought an accounting of all expenses and revenues relating to the AMI since the date of the agreement. Defendants filed a motion to dismiss for failure to state a claim, urging that the rule against perpetuities prevented ANR from enforcing the Option Provision. ANR responded that the rule against perpetuities (1) does not apply to oil and gas operating agreements and (2) does not apply to the Option Provision because oil and gas production is always of limited duration. After holding a hearing, the district judge granted Defendants' motion to dismiss. ¶5 The Court of Civil Appeals affirmed in part and reversed in part. The Court of Civil Appeals remanded the case so that ANR could amend it's pleadings and for a determination of "whether, if alleged, a personal contract and a specific or perpetual organization life, together or separately, suffice to create an exception to the application of the Rule Against Perpetuities as set out in Producers Oil Co. v. Gore, 1980 OK 62, 610 P.2d 772." Defendants filed a petition for certiorari which this Court granted. III. STANDARD OF REVIEW ¶6 This Court subjects a trial court's judgment dismissing a petition to de novo review. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208. When evaluating a motion to dismiss, the court examines only the controlling law, not the facts. Id. Thus, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences that can be drawn from them. Id. Motions to dismiss are generally disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory. Id. We review the motion to dismiss under this standard. IV. ANALYSIS ¶7 The rule against perpetuities is embedded in the Oklahoma Constitution at Article II, Section 32, which provides: Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State. In Melcher v. Camp, 1967 OK 239, 435 P.2d 107, this Court recognized that Article II, Section 32 was an adoption of the common-law rule against perpetuities. The Melcher Court adopted the "most universally accepted short definition of the common-law rule against perpetuities:" No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. Id. ¶ 18, 435 P.2d at 111 (quoting John Chipman Gray, The Rule Against Perpetuities 191 (4th ed. 1942)). A. The Rule Against Perpetuities and Joint Operating Agreements with Options ¶8 The common-law rule against perpetuities applies to property rights, but does not apply to contracts which are entirely personal. Melcher, 1967 OK 239, ¶ 27, 435 P.2d at 112. ANR urges, in this respect, that this common-law rule does not apply to a joint operating agreement (JOA), citing Producers Oil Co. v. Gore, 1980 OK 62, ¶ 10, 610 P.2d 772, 774. Producers Oil Co. recognized that a JOA, while contractual in nature, may include provisions that convey a property interest as well, such as preemptive rights which must be scrutinized under the common-law rule against perpetuities. Id. ¶ 9, 610 P.2d at 774. Thus, a JOA, which covers a well's operations, generally does not include an AMI agreement, but an AMI agreement may be included in a JOA. Here, a JOA is not before this Court, but we are presented with a stand-alone AMI agreement. ¶9 We examine whether the relevant provision in this case creates a property right subject to Article II, Section 32's constitutional perpetuity prohibition. ANR alleged in its petition that it had a "right to participate for a 25% working interest in each of the Disputed Wells as well as in all future wells within the AMI drilled in the future by [Defendants]," which would include wells drilled on leases procured in the future within the AMI. ¶10 Defendants rely primarily on Melcher v. Camp, 1967 OK 239, 435 P.2d 107, in support of their position that the Option Provision creates a property right subject to the rule against perpetuities. In Melcher, the parties entered into an oil and gas top lease covering the upper 5,500 feet of certain property. A separate agreement provided: "The parties further mutually agree that in the event [the lessors] shall at any time have an opportunity to lease the oil, gas and other minerals and mineral rights below 5500 feet, [the lessee] is to be given a five day option of acquiring such lease himself on the same terms and conditions offered to [the lessors]." Id. ¶ 2, 435 P.2d at 109. This Court found that the provision giving the lessors a preemptive option was void as violating of the rule against perpetuities. Id. ¶ 44, 435 P.2d at 115. The factors the Court considered were (1) the option was contained in a separate agreement, id. ¶ 2, 435 P.2d at 109, and, therefore, did not terminate with an existing lease agreement, (2) there was no connection between the lease option and an existing lease other than the covered areas were vertically contiguous and they required the use of some surface area, id. ¶ 6, 435 P.2d at 109, (3) the lease option was not a renewal of an existing lease, id., (4) the lease option was based on a condition precedent which might never occur, id. ¶ 7, 435 P.2d at 109, (5) the lessors gave up their right to sell to whomever they wanted, id. ¶ 9, 435 P.2d at 110, and (6) conveyance of a lease to the mineral rights below 5,500 feet to a third party would be a breach of the separate agreement. Id. Thus, the option created an interest in property. Id. ¶ 36, 435 P.2d at 114. ¶11 ANR relies on Producers Oil Co. v. Gore, 1980 OK 62, 610 P.2d 772, in support of its position that the Option Provision is not subject to and, thus, does not violate the rule against perpetuities. In Producers Oil Co., the JOA contained the following provision: 15. "Should any Non-Operator desire to sell the interest, or any part thereof, owned by such Non-Operator in the oil and gas lease, or leases, hereinabove described, such Non-Operator shall promptly give written notice to Operator with full information concerning such proposed sale, including the name and address of the prospective purchaser (who must be ready, willing and able to purchase), the purchase price and all other terms of the offer. Operator shall then have an optional prior right for a period of ten days after receipt of the notice to purchase on the same terms and conditions, the interest which such Non-Operator proposes to sell. . . ." Id. ¶ 1, 610 P.2d at 773. This Court found that this provision was a preemptive option and upheld the provision against a rule-against-perpetuities attack, finding that the exception stated in Melcher, 1967 OK 239, ¶ 44, 435 P.2d at 115, in treatises, and in Section 395 of the Restatement of Property applied. The exception provides: "[W]hen the option to purchase the fee is contained in the lease and is exercisable within the term of the leasehold interest impressed upon the property, it is not subject to the rule against perpetuities." Melcher, 1967 OK 239 at ¶ 44, 435 P.2d at 115; Producers Oil Co., 1980 OK 62, ¶17, 610 P.2d at 775. ¶12 Producers Oil Co. distinguished the option in Melcher. In Melcher the preemptive rights were not a part of an operating agreement dependent upon a lease. The rights in Melcher would vest only if a new lease was offered. The preemption did not apply to previously leased property but to unleased vertically contiguous property. In Melcher only one party held preemptive rights while here the preemptive rights are reciprocal. These rights were not delineated by any time frame; a new lease could have been acquired whether or not there was any production in the upper formation. Producers Oil Co., 1980 OK 62, ¶14, 610 P.2d at 775. ¶13 Here, the Option Provision is more akin to the Melcher option than to the one in Producers Oil Co. The Option Provision is not part of a JOA or a lease. It does not expire when an existing lease expires, but continues when new leases are executed with new wells drilled thereon. Nonetheless, ANR postulates that the option to participate is self-terminating by the cessation of production, citing Producers Oil Co., 1980 OK 62 at ¶ 11, 610 P.2d at 774. While ANR's position finds support in dicta, Producers Oil Co. clarified that the reason options contained in mineral leases and in JOAs do not violate the rule against perpetuities is because mineral leases and JOAs have built in duration not necessarily tied to the cessation of production. Id. Here the AMI agreement is a stand-alone document and the Option Provision applies to participation in wells drilled on future as well as existing leases. The Option Provision's term would allow ANR to participate in future wells if production ceased and then restarted under new leases and new JOAs. Simply, the Option Provision provides for ANR to participate in wells infinitum and is subject to the rule against perpetuities. B. Life in Being ¶14 ANR urged and the Court of Civil Appeals accepted as true, both without supporting authority, that an LLC, such as ANR, could be a life in being for the purposes of the rule against perpetuity. We cannot agree. ¶15 ANR claims that a "life in being" includes entities such as a corporation and an LLC, based on this Court's determination in Cartwright v. Hillcrest Investments, Ltd., 1981 OK 27, ¶ 10, 630 P.2d 1253, 1256, that "at the time the Constitution was adopted, the term 'person' was generally understood to include corporations." ANR's reasoning is faulty due to an association fallacy: because a corporation may be a "person" does not make it a "life in being." ¶16 At common law, a corporation did not qualify as a life in being. Restatement (First) of Property § 374, cmt. h (1944). The comment expounds on the meaning of life in being: The lives which can be used in measuring the permissible period under the rule against perpetuities must be lives of human beings. For many purposes in the law a corporation is a "person," but not for the measurement of the period described in Clause (a). So also no such measurement may be expressed in terms of the life of any animal (other than man), even though the animal is one of a type having a life span typically shorter than that of human beings, as for example, a dog or a horse. The United States Supreme Court also found that the use of a corporation as a life in being under the common law would violate the rule against perpetuities. Fitchie v. Brown, 211 U.S. 321, 334 (1908). ¶17 When there is no measurable life in being, such as with a corporation or an LLC, the "only definite period permitted by the rule against perpetuities is a term not exceeding 21 years." Melcher, 1967 OK 239, ¶ 20, 435 P.2d at 111. A provision without a measurable life in being that vests or distributes after twenty-one years violates the rule against perpetuities and is void. McLaughlin v. Yingling, 1923 OK 99, ¶ 42, 213 P. 552, 564. ANR urges that this twenty-one year rule shows that a corporation is a life in being under the rule. If a corporation or an LLC is a life in being, then the twenty-one-year rule for entities would be superfluous. ¶18 ANR states that they wish to amend their petition to show that they are a "single member limited liability company with a 30 year duration." ANR urges that as a single-member LLC, the LLC should be disregarded as an entity for purposes of the rule against perpetuities, just as it can be for federal tax purposes. Here, we are not dealing with federal taxes; we are dealing with contractual rights. Oklahoma's statutory scheme makes an LLC a legal entity separate from its owners with the filing of its executed articles of organization. 18 O.S.2011, § 2004; 18 O.S.Supp. 2004, § 2004. Whether an LLC is for a specific or perpetual duration is not significant to its status as a separate entity. See 18 O.S.2011, § 2004; 18 O.S.2001, § 2004. An LLC "generally remains a separate entity for state law purposes." Timothy M. Larason, Using One-Member L.L.C.s as "Disregarded Entities," 73 Okla. Bar J. 1753, 1753 (2002). ANR executed the AMI agreement as a business entity, not as its owner. Here, ANR, as an LLC, is not a life in being regardless of whether it has an expiration date or it is perpetual.1 Thus, the Option Provision is subject to the twenty-one-year limit imposed by the rule against perpetuities and Melcher. ANR's right to participate in future wells is indeterminable, does not vest within the twenty-one-year limit, and may never vest. Thus, the Option Provision violates the rule against perpetuity. C. Reformation and Cy Pres ¶19 ANR also urges for the first time in its Response to Appellees' Petition for Certiorari that, if the Option Provision is void, then it should be reformed under Title 60, Sections 75-77 of the 2011 Oklahoma Statutes. Rule 1.26(a) of the Oklahoma Supreme Court Rules requires that an appellant, here ANR, include in its petition in error or a timely filed amended petition in error "any error or any issue presented to and resolved by the trial court which is supported by the record." Okla.Sup.Ct.R. 1.26(a), 12 O.S.2011, app. 1, r. 1.26(a). The only exception is found in Rule 1.26(b), which deems the petition in error amended to include errors set forth in the brief in chief. In appeals brought under Supreme Court Rule 1.36 (Accelerated procedure for summary judgments and certain dismissals) as here, briefs are not filed unless otherwise ordered by the appellate court. In this case, no appellate briefs were ordered by either the Court of Civil Appeals or by this Court, precluding review of issues not raised by the petition in error. ¶20 ANR failed to assert in the district court that the Option Provision, if violating the rule against perpetuities, should be reformed under the cy pres doctrine. Having failed to raise the issue in the district court, ANR could not assert in the petition in error as an issue that the district court erred in not reforming the Option Provision. Further, even with a liberal reading of the petition in error, we find nothing which raises the issue of reformation. For these reasons, ANR's argument that the Option Provision is subject to reformation is not before this Court. V. CONCLUSION ¶21 ANR has failed to show that the district court erred in granting the motion to dismiss. The Court of Civil Appeals' opinion is vacated. The judgment of the district court is affirmed. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S ORDER AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 The date that ANR filed its executed articles of organization are not part of the record. Title 18, Section 2004 now provides: A limited liability company formed under this act is a separate legal entity, the existence of which as a separate legal entity continues until cancellation of the limited liability completion of its winding up, if any.

2877f95b-9931-43a0-ac4b-1b61ecc9ec52

Maree v. Neuwirth

oklahoma

Oklahoma Supreme Court

MAREE v. NEUWIRTH2016 OK 62Case Number: 114737Decided: 06/07/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MAMIE MAREE, as Personal Representative of the Estate of CARLA SUE MAREE, deceased, Petitioner, v. HONORABLE JUDGE GERALD F. NEUWIRTH, Judge of the District Court for Comanche County, Respondent, and PSG-WILLOW PARK, LLC, d/b/a WILLOW PARK HEALTH CARE CENTER, Real Party in Interest. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRITS OF PROHIBITION AND MANDAMUS ¶0 Petitioner sought leave to add additional defendants after the statute of limitations had expired. The trial court denied leave solely based upon 12 O.S. Supp. 2013, § 682 (B). Petitioner requests a Writ of Prohibition to prevent the trial court from enforcing its order. In addition, Petitioner requests this Court issue a Writ of Mandamus ordering Respondent to allow Petitioner to amend her Petition and add the proposed additional defendants. The Application to Assume Original Jurisdiction is granted. Petitioner's request for a Writ of Prohibition is granted and the Writ of Mandamus is denied. We remand this matter to the trial court to conduct further proceedings consistent with this opinion. APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; WRIT OF PROHIBITION GRANTED; WRIT OF MANDAMUS DENIED. L. Ray Maples, Glendell Nix and Nicole R. Snapp-Holloway, Maples, Nix & Diesselhorst, Oklahoma City, Oklahoma, for Petitioner. Malinda S. Matlock and Kimberly A. Stevens, Pierce, Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Real Party in Interest, PSG-Willow Park, L.L.C. d/b/a Willow Park Health Care Center. COMBS, V.C.J. ¶1 Mamie Maree, as personal representative of the estate of Carla Sue Maree (Carla Maree), deceased, (Petitioner) makes application to this Court to assume original jurisdiction and petitions for a Writ of Prohibition prohibiting the Honorable Gerald Neuwirth, District Judge of Comanche County, Oklahoma (Respondent) from enforcing his January 21, 2016, Order denying Petitioner's Motion to Amend Petition to add additional defendants. In addition, Petitioner petitions this Court for a Writ of Mandamus ordering Respondent to allow Petitioner to amend her Petition and add additional defendants. The Application to Assume Original Jurisdiction and Writ of Prohibition is hereby granted and Writ of Mandamus is denied. FACTS AND PROCEDURAL HISTORY ¶2 The deceased, Carla Maree, was a nursing home resident at Willow Park Health Care Center, Lawton, Oklahoma. On January 17, 2011, Carla Maree fell. Petitioner claims she fell due to the Defendant/Real Party in Interest's, PSG-Willow Park, L.L.C., d/b/a Willow Park Health Center (Nursing Home), failure to timely respond to a "call light" and provide Carla Maree with appropriate toileting and assistance. In addition, it is alleged the Nursing Home failed to contact a physician and other necessary health care providers for at least seven hours after the fall. On January 19, 2011, Carla Maree died. ¶3 On January 18, 2013, the Petitioner filed a Petition asserting Carla Maree's suffering and her ultimate death was caused by the negligence of the Nursing Home, corporately and/or by and through its servants, agents, and employees. Petitioner also asserted the Nursing Home as "owner/operator/licensee" of "Willow Park" violated provisions of the Oklahoma Nursing Home Care Act, 63 O.S. §1-1901 et seq. and such violations were a direct cause of Carla Maree's injuries and death. In addition, Petitioner averred the Nursing Home breached its contract with Carla Maree by failing to provide physical care and supervision and breached its contract with the State of Oklahoma, Oklahoma Health Care Authority by failing to comply with federal and state laws and regulations concerning long-term nursing care facilities. Petitioner asserts Carla Maree was an intended third-party beneficiary of the Nursing Home's contract with the state. ¶4 On November 13, 2015, Petitioner filed a Motion to Amend the Petition to add additional defendants against whom she would plead allegations of direct negligence in the same character already described in her Petition. Petitioner's counsel claims that during participation in other litigation against the same Defendant (Carol West v. PSG-Willow Park et al., Comanche County Case no. CJ-2013-136) they became aware of "certain individuals and entities intertwined amongst and actually part of the named Defendant." Petitioner alleges Professional Service Group, LLC, Michael McCann, and Lucretia Parkey were partners/owners/lessors/managers of "Defendant Willow Park Health Care Center" at the time of Carla Maree's injury and death and directly participated in the daily activities and operations of "Willow Park." Petitioner asserts these individuals made important decisions in regards to staffing, budgeting, hiring and personnel issues, and policies and procedures, including safety measures and directives regarding medical and other resident/patient care and supervision. She also asserted there were issues of record keeping and numerous violations of proper reporting and violations of failure to meet the necessary standards of care for residents under state and federal law. In addition, Petitioner alleges Professional Service Group, LLC manages and directs the day to day operations of the "Willow Park facility" and Lucretia Parkey and Michael McCann directly participate in the management, control and operations of the Nursing Home. Petitioner also stated in her Motion to Amend that "because such direct claims will be properly alleged and proven, alter ego and other vicarious claims for liability would be properly added against these defendants." In response, the Nursing Home objected to the Motion to Amend Petition for the following reasons: 1) the statute of limitations barred the claims against these other individuals and entities; 2) Petitioner has caused undue delay in naming these parties, the amendment would be prejudicial to the Nursing Home; 3) such amendment would violate 12 O.S. § 682 because the statute prohibits claims against the officers, directors and shareholders of a company and/or the members and managers of a limited liability company for liability of the company; and 4) the claims against the proposed individuals do not relate back to Petitioner's original Petition. ¶5 A hearing was held on January 20, 2016, concerning Petitioner's Motion to Amend and after taking the issue under advisement the Respondent issued a minute order on January 21, 2016. The minute order stated: After consideration of the argument of [attorneys] & the briefs filed, the Court finds that the [plaintiff's] Motion to Amend should be denied based on 12 O.S. 682 (B). The Court finds that the conduct of the parties [plaintiff] wish to add was not in connection with or directly involved with the occurrence which is the action originally filed. On February 25, 2016, Petitioner filed her Application to Assume Original Jurisdiction and Petition for Writs of Prohibition and Mandamus. STANDARD OF REVIEW ¶6 This Court assumes original jurisdiction in the exercise of our general superintending control over all inferior courts and all agencies, commissions and boards created by law under Okla. Const. Art. 7, § 4. Baby F. v. Oklahoma County Dist. Court, 2015 OK 24, ¶8, 348 P.3d 1080; James v. Rogers, 1987 OK 20, ¶5, 734 P.2d 1298. This Court has the power on original jurisdiction to correct an abuse of discretion or compel action where the action taken is arbitrary even though the officer is vested with judgment and discretion. State ex rel. Smith v. Banking Bd., 1980 OK 84, ¶10, 612 P.2d 257. Before a writ of prohibition may issue, a petitioner must show: 1) a court, officer, or person has or is about to exercise judicial or quasi-judicial power; 2) the exercise of said power is unauthorized by law; and 3) the exercise of that power will result in injury for which there is no other adequate remedy. Baby F. v. Oklahoma County Dist. Court, 2015 OK 24, ¶8, 348 P.3d 1080; James v. Rogers, 1987 OK 20, ¶5, 734 P.2d 1298. The typical requirements for a writ of mandamus are: (1) The party seeking the writ has no plain and adequate remedy in the ordinary course of the law; (2) The party seeking the writ possesses a clear legal right to the relief sought; (3) The respondent (defendant) has a plain legal duty regarding the relief sought; (4) The respondent has refused to perform that duty; and (5) The respondent's duty does not involve the exercise of discretion. Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶24, 87 P.3d 598. ANALYSIS ¶7 The Respondent's court minute denying Petitioner's request to add additional defendants relied solely upon 12 O.S. § 682 (B). At the time of the court's ruling this subsection provided: B. No suit or claim of any nature shall be brought against any officer, director or shareholder for the debt or liability of a corporation of which he or she is an officer, director or shareholder, until judgment is obtained therefor against the corporation and execution thereon returned unsatisfied. This provision includes, but is not limited to, claims based on vicarious liability and alter ego. Provided, nothing herein prohibits a suit or claim against an officer, director or shareholder for their own conduct, act or contractual obligation arising out of or in connection with their direct involvement in the same or related transaction or occurrence. 12 O.S. Supp. 2013, § 682; amended by 2013 Okla. Sess. Laws c. 265, § 1 (SB 1083) (emphasis added).1 Subsection D of this section, also added in 2013, provides that "[m]embers and managers of limited liability companies shall be afforded the same substantive and procedural protection from suits and claims as the protections provided to officers, directors and shareholder of a corporation as set forth in subsections B and C of this section." The Nursing Home asserts the proper time to assert claims against these proposed defendants is after a judgment has been obtained against the original defendant. We have not previously interpreted the 2013 amendments to 12 O.S. § 682. ¶7 The Nursing Home filed its answer to Petitioner's original Petition on February 27, 2015, and Petitioner filed her Motion to Amend on November 13, 2015. A party seeking to amend a pleading to add or drop parties, who does not have consent of the adverse party, must obtain leave of court when, as here, a responsive pleading has been served.2 Title 12 O.S. 2011, § 2015 (A) also provides that "leave shall be freely given when justice so requires." Petitioner asserts the trial court acted arbitrarily in applying an incorrect standard and burden to the Motion to Amend. Although Petitioner's Motion to Amend plead allegations of direct negligence against the proposed defendants, Petitioner argues, the trial court's court minute effectively decided the merits concerning her claims against such defendants. ¶8 In Fanning v. Brown, the plaintiff, Fanning, filed a petition asserting legal theories of negligence and breach of contract against a defendant corporation who operated a long-term nursing care facility. 2004 OK 7, ¶22, 85 P.3d 841. She later sought to amend her petition in order to pierce the corporate veil and hold the corporate shareholders liable for the obligations and conduct of the corporation. Id. at ¶17. The shareholders moved to dismiss simply stating the general rule is that a shareholder is a separate entity that cannot be liable for the negligent acts of the corporation. Id. at ¶18. The trial court dismissed the case and the Oklahoma Court of Civil Appeals (COCA) affirmed. Id. This Court vacated COCA's opinion and affirmed in part and reversed in part the trial court's decision as well as remanded the matter to the trial court for further proceedings. We noted, Oklahoma became a notice pleading state in 1984 with the adoption of the Oklahoma Pleading Code, 12 O.S., § 2001 et seq. Id. at ¶19. Under the Pleading Code, Fanning was only required to set forth a short and plain statement of her claims so that the defendants would have fair notice of her claims and the grounds upon which they rest. Id. at ¶21. We determined she had given the defendants fair notice of her claims and the grounds upon which they rest. Id. at ¶22. We held that based upon the theories Fanning had asserted she must be afforded an opportunity to complete discovery so that the court will have a fully developed factual record to determine the issue. Id. We further determined "[a]t this stage of the proceedings it does not appear beyond a doubt that Fanning can prove no set of facts in support of her theories of recovery." We, however, did not determine whether Fanning would prevail on her claims and provided the litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims. Id. at ¶¶21-22. ¶9 Although this case does not concern a motion to dismiss, the logic in Fanning is applicable. Here Petitioner has made allegations of direct negligence against the proposed defendants and stated such direct claims will be properly alleged and proven. If such allegations had been made in her original petition they would have amounted to a cognizable legal theory and provided fair notice as well as grounds upon which her claims rest. The trial court decided the merits without affording Petitioner an opportunity for discovery to develop her claims. We find this was error and warrants the granting of a Writ of Prohibition to prevent the trial court from enforcing its January 21, 2016, order. ¶10 Petitioner has also requested this Court to issue a Writ of Mandamus ordering Respondent to allow Petitioner to amend her Petition and add the proposed additional defendants. Here, the parties concede that the statute of limitations has expired against these proposed defendants. The Nursing Home asserts the claims against the proposed defendants do not relate back to Petitioner's original Petition. The dispositive issue then rests upon whether the "relation back" provisions of 12 O.S. 2011, § 2015 (C) have been met. This subsection provides: C. RELATION BACK OF AMENDMENTS. An amendment of a pleading relates back to the date of the original pleading when: 1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or 2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or 3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment: a. has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and b. knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment to add an omitted counterclaim does not relate back to the date of the original answer. The delivery or mailing of process to the Attorney General of Oklahoma, or an agency or officer who would have been a proper defendant if named, satisfies the requirements of subparagraphs a and b of this paragraph with respect to the State of Oklahoma or any agency or officer thereof to be brought into the action as a defendant. Title 12 O.S. 2011, § 2015 (C). The trial court made no ruling concerning this section of law. In order to determine whether the proposed defendants can be added the trial court will need to make a ruling concerning the relation back doctrine found in 12 O.S. 2011, § 2015 (C). We therefore deny the request for a Writ of Mandamus and remand this matter for further proceedings consistent with this opinion. APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; WRIT OF PROHIBITION GRANTED; WRIT OF MANDAMUS DENIED. ALL JUSTICES CONCUR FOOTNOTES 1 At the time the subject cause of action arose, January 2011, this statute read as follows: Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served. 12 O.S. 2011, § 682. Subsections B -E were added in 2013, and provide the provisions relied upon by the Nursing Home and the Court. In Petitioner's Notice of Supplemental Authority filed on April 19, 2016, she cites to an unpublished opinion of the Oklahoma Court of Civil Appeals to support a new theory that the 2013 amendments are not applicable to this case because they are substantive rather than procedural amendments which were enacted after the cause of action arose. Okla. Sup.Ct. R. 1.200 (C) (5) provides in pertinent part: unpublished opinions are deemed to be without value as precedent and are not uniformly available to parties, opinions so marked shall not be considered as precedent by any court or cited in any brief or other material presented to any court, except to support a claim of res judicata, collateral estoppel, or law of the case. For the purposes of determining extraordinary relief, we do not need to make a decision as to whether or not subsection B of § 682 is procedural or substantive at this time, especially in light of the fact such argument was never presented to the district court and the unpublished opinion should never have been cited by the Petitioner in her brief. 2 Title 12 O.S. 2011, § 2015 (A) provides: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty (20) days after it is served. Amendments to add omitted counterclaims or to add or drop parties may be made as a matter of course within the time specified above. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall respond to an amended pleading within the time remaining for response to the original pleading or within ten (10) days after the service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

33d2d51a-e97d-4bb9-839d-cc53c4ce1cef

In re Initiative Petition No. 409, State Question No. 785

oklahoma

Oklahoma Supreme Court

IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 7852016 OK 51Case Number: 114792Decided: 05/03/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, OKLAHOMA GROCERS ASSOCIATION and RON EDGMON, Petitioners, v. RETAIL LIQUOR ASSOCIATION OF OKLAHOMA and BRYAN KERR, Respondents. ORIGINAL PROCEEDING TO DETERMINE THE VALIDITY OF INITIATIVE PETITION NO. 409 ¶0 This is an original proceeding to determine the legal sufficiency of Initiative Petition No. 409. The petition seeks to amend the Oklahoma Constitution by repealing Article 28 and adopting Article 28A. Article 28A would allow wine to be sold in grocery stores. Opponents filed this protest alleging the petition unconstitutionally delegates legislative authority. Opponents also allege the gist of the petition is insufficient and misleading. Upon review, we hold that the gist of the petition does not fairly describe the proposed constitutional amendment and is invalid. INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT V. Glenn Coffee, Denise Davick, Glenn Coffee & Associates, PLLC, Oklahoma City, OK, for Petitioners Ann G. Richards-Farinha, Hartsfield & Egbert, PLLC, Oklahoma City, OK, for Respondents Randy J. Malone, Oklahoma City, OK, for Respondents GURICH, J. ¶1 On February 23, 2016, Respondents Retail Liquor Association of Oklahoma and Bryan Kerr (Proponents) filed Initiative Petition No. 409 with the Oklahoma Secretary of State. The petition seeks to amend the Oklahoma Constitution by repealing Article 28 and adopting Article 28A. In short, the proposed Article 28A would allow wine to be sold in grocery stores. Grocery stores would be limited to only one Retail Grocery Wine Store license. Grocery stores with multiple locations could procure up to three more licenses by purchasing qualified Retail Package Store licenses from a retail package store for conversion to a Retail Grocery Wine Store license. Under the proposed Article 28A, retail package stores could now sell any and all items that are sold in convenience stores and grocery stores. Small brewers could sell their products at a brewery or festival or trade show and could sell alcoholic beverages by the drink at a restaurant co-located on the premises of the brewery. On March 11, 2016, Petitioners Oklahoma Grocers Association and Ron Edgmon (Opponents) timely filed an Application to Assume Original Jurisdiction in this Court protesting: 1) the constitutionality of the petition; and 2) the statutory sufficiency of the gist of the petition. ¶2 "'The first power reserved by the people is the initiative . . . .' With that, comes 'the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.'" In re Initiative Petition No. 403, 2016 OK 1, ¶ 3, 367 P.3d 472, 474 (citing Okla. Const. Art. 5, § 1). "While this fundamental and precious right is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition." In re Initiative Petition No. 384, 2007 OK 48, ¶ 2, 164 P.3d 125 (internal citation omitted). When a protest is filed in this Court, we are "vested with original jurisdiction to evaluate and determine the sufficiency of the proposed initiative petition pursuant to 34 O.S. Supp. 2015 § 8." In re Initiative Petition No. 403, 2016 OK 1, ¶ 3, 367 P.3d at 474. ¶3 The procedures for presenting an initiative petition are outlined in 34 O.S. Supp. 2015 §§ 1-27. Section 3 of Title 34 provides in part: "A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet."1 This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process."2 The gist "'should be sufficient that the signatories are at least put on notice of the changes being made,'" and the gist must explain the proposal's effect.3 The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal."4 The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is "'not required to contain every regulatory detail so long as its outline is not incorrect.'"5 "We will approve the text of a challenged gist if it is 'free from the taint of misleading terms or deceitful language.'"6 ¶4 From 1985 until 2015,7 the "pamphlet" circulated to potential signatories included an exact copy of the ballot title, the text of the measure itself, and signature sheets, which included the gist of the measure on each signature page.8 "[B]oth the gist and the ballot title work[ed] together to prevent fraud in the initiative process."9 However, as we noted in In re Initiative Petition No. 403, 2016 OK 1, 367 P.3d 472, pursuant to the amendments to Title 34 effective April 28, 2015, the ballot title is now to be filed separately from the petition and is no longer "part of or printed on the petition."10 Thus, the more-detailed ballot title is no longer circulated to potential signatories as part of the pamphlet, and the gist is now the only shorthand explanation of the proposal's effect. The gist alone must now work to prevent fraud, corruption, and deceit in the initiative process.11 ¶5 In the petition we consider today, the gist provides: This measure amends the entirety of Article XXVIII of the Oklahoma Constitution, as an amendment by Article repealing Article XXVIII and adopting Article XXVIIIA. It provides equal opportunity guarantees for Oklahoma businesses. It permits licensees that currently hold licenses to sell low-point beer to sell all beer and malt beverages regardless of percent alcohol by volume. It allows certain business entities, including grocery stores, to qualify for a license to sell wine for off-premises consumption. It allows small brewers as defined by law to sell their products at a brewery or festival or trade show and allows them to sell alcoholic beverage by the drink at a restaurant co-located on the premises of the brewery. It provides that all employees who handle or sell alcoholic beverages must obtain an employee license from the Alcoholic Beverage Laws Enforcement (ABLE) Commission. It permits Retail Package Store licensees to sell any and all items that are sold in convenience and grocery stores. It permits Retail Package Stores to offer services associated with the promotion of or education in their products. It permits Retail Package Store licensees and Retail Wine Grocery Store licensees to sell their products on any day of the year except for Thanksgiving Day and Christmas Day. It eliminates the prohibition of advertising of alcoholic beverages. It provides funding for the Department of Mental Health for treatment and prevention of mental health disease. The Amendments take effect on July 1, 2017.12 ¶6 The petition makes significant changes to the liquor laws of this state; however, certain changes are recognizably absent from the gist. Pursuant to the petition, no Retail Package Store license or Retail Grocery Wine Store license can be issued to any grocery store, warehouse club, or supercenter located within 2,500 feet of an existing Retail Package Store or Retail Grocery Wine Store, making many grocery stores ineligible for a Retail Grocery Wine Store license.13 Only one Retail Grocery Wine Store license will be issued by ABLE to entities with multiple stores, again limiting a grocery store's eligibility for a Retail Grocery Wine Store license.14 Finally, only Retail Package Store licenses that have been in existence for more than two years from the date the ABLE Commission issues the first Retail Grocery Wine Store license shall be eligible for purchase for the purpose of converting to a Retail Grocery Wine Store license, again restricting the number of grocery store wine retailers.15 ¶7 The gist fails to alert potential signatories of the changes being made to the law and does not provide a potential signatory with sufficient information to make an informed decision about the true nature of the proposed constitutional amendment. See In re Initiative Petition No. 384, 2007 OK 48, ¶¶ 11-12, 164 P.3d at 129-30. We hold that the gist of the petition does not fairly describe the proposed constitutional amendment and is invalid. The gist is not subject to amendment by this Court, and as a result, the only remedy is to strike the petition from the ballot.16 INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT ¶8 Combs, V.C.J., Kauger, Winchester, Edmondson, Taylor (by separate writing), Colbert, Gurich, JJ., concur; Taylor, J., with whom Kauger, J., joins, concurring: The problem with this gist is exactly the same problem that I pointed out in my dissent in In re Initiative Petition No. 403, 2016 OK 1, wherein I stated, "The gist is dead on arrival. Along with the unconstitutionality of Initiative Petition No. 403, the gist or proposed ballot title deceives potential signatories and potential voters. I would send Initiative Petition No. 403 back to the Respondents as the gist does not satisfy the statutory requirements set out by the Legislature." The exact same problem exists in this case and therefore I concur. ¶9 Reif, C.J., dissent. ¶10 Watt, J., not participating. FOOTNOTES 1 34 O.S. 2011 § 3. 2 In re Initiative Petition No. 363, 1996 OK 122, ¶ 18, 927 P.2d 558, 567 (citing Cmty. Gas and Serv. Co. v. Walbaum, 1965 OK 118, 404 P.2d 1014). 3 In re Initiative Petition No. 384, 2007 OK 48, ¶ 7, 164 P.3d at 129 (quoting In re Initiative Petition No. 342, 1990 OK 776, 797 P.2d 331). 4 Id., ¶ 8, 164 P.3d at 129. 5 Id., ¶¶ 8-9, 164 P.3d at 129 (quoting In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558). 6 Id., ¶ 9, 164 P.3d at 129 (quoting In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558). 7 In 1985, the Legislature created the gist requirement. See 34 O.S. Supp. 1985 § 3. 8 34 O.S. 2011 § 2. 9 In re Initiative Petition No. 397, 2014 OK 23, ¶ 64, 326 P.3d 496, 518. 10 34 O.S. Supp. 2015 § 8(A). Compare 34 O.S. Supp. 2015 § 2 ("Insert here an exact copy of the text of the measure.") with 34 O.S. 2011 § 2 ("Insert here an exact copy of the title and text of the measure."). Although the ballot title review process, and any challenge to the ballot title, must now statutorily come after the circulation period pursuant to § 8, the statute remains silent with regard to when a challenge to the gist of the petition must be made. We find that a pre-circulation challenge to the gist of the petition is appropriate as the gist remains a necessary part of the pamphlet circulated to potential signatories. We need not decide today whether a post-circulation challenge to the gist of the petition would also be appropriate as those are not the circumstances before us in this case. 11 No changes were made to Section 3--the gist requirement--in the 2015 amendments to Title 34. 12 See Petitioners' Appendix to Application to Assume Original Jurisdiction. 13 Initiative Petition No. 409, § 10. 14 Initiative Petition No. 409, § 10. 15 Initiative Petition No. 409, § 10; § 12. Opponents' argument that all beer, including 3.2% beer, will now be taxed as alcohol, effectively raising taxes on beer sold at grocery stores and convenience stores, is speculation at this point. We decline to engage in speculation in our consideration of the validity of the gist. See In re Initiative Petition No. 358, 1994 OK 27, ¶ 12, 870 P.2d 782, 787. 16 Because we conclude that the gist is legally insufficient, we need not address Opponents' constitutional arguments.

edf85359-0785-4937-b658-60bc2a394c8f

Loyd v. Michelin North America, Inc.

oklahoma

Oklahoma Supreme Court

LOYD v. MICHELIN NORTH AMERICA, INC.2016 OK 46Case Number: 112754Decided: 04/26/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JAMES LOYD, Petitioner, v. MICHELIN NORTH AMERICA, INC., and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS ¶0 Claimant James Loyd was awarded permanent partial disability benefits after being injured on the job. Loyd did not appeal, and the order became final. Less than a month after such order was issued, Loyd filed a Form 9 requesting continuing medical maintenance and requesting a portion of his permanent partial disability award be commuted to a lump sum payment. Upon consideration, we hold that a claimant may seek to commute his or her permanent partial disability award after the hearing on permanent partial disability under 85 O.S. 2001 § 41(A). Additionally, we conclude that because Loyd did not request reservation of continuing medical maintenance and the trial court's order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, Loyd's only recourse was to seek continuing medical maintenance through a reopening proceeding under 85 O.S. 2001 § 28. WORKERS' COMPENSATION COURT OF EXISTING CLAIMS' ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS David Custar, Richard A. Bell, The Bell Law Firm, Norman, Oklahoma, for Petitioner Connie M. Wolfe, Connie M. Wolfe & Associates, PLLC, Oklahoma City, Oklahoma, for Respondents GURICH, J. Facts & Procedural History ¶1 Loyd was employed by Michelin North America for thirty years. On November 10, 2009, Loyd suffered injuries to his head, neck, back, right shoulder, right hip, and right knee after being thrown into a steel cage by a 500-800 pound roll of fabric. At the time of his injury, he was working as a wind-up operator for a "fabric calender"1 and was attempting to repair a broken bolt of fabric. Loyd reported the incident to his Employer. ¶2 On November 20, 2009, Loyd was again attempting to repair a broken bolt of fabric when his left ankle gave out and he injured his left hand, left knee, left shoulder, and left ankle.2 On December 21, 2009, Loyd filed a Form 3 for his injuries from the November 10, 2009 incident, and he filed an amended Form 3 on January 20, 2010, to add the injuries suffered in the November 20, 2009 incident. An Order Determining Compensability and Awarding Temporary Total Disability Benefits was entered on May 20, 2010. From December of 2010 to October of 2012, Loyd had surgery on both shoulders, his back, both knees, and left ankle. ¶3 On May 16, 2013, Loyd filed a Form 9, requesting the following issues be set for trial: "Temporary disability from 11-24-09 to 5-6-13; Medical Treatment from 11-9-09 to Indefinite; Permanent Partial Disability/Permanent Partial Impairment; Cont. Medical Treatment; Disfigurement; Pain Management Specialist; Prescriptions; Should be allowed to remain under the care of Dr. Johnsen and Pam Holt for depression; Commute."3 A hearing was held on November 26, 2013. The transcript from such hearing was not included in the record on appeal. On December 20, 2013, the trial court entered an Order Awarding the Nature and Extent of Permanent Partial Disability Benefits and Disfigurement. The order did not reserve any issues for future hearing and made no mention of continuing medical treatment, prescriptions, or commutation. Loyd did not appeal the order. ¶4 On January 15, 2014, just twenty-six days later, Loyd filed a Form 9, seeking to set for trial the issues of continuing medical maintenance and commuting a portion of his permanent partial disability award to a lump sum. Employer filed an Answer, alleging res judicata and claim preclusion as an affirmative defense. The court held a hearing on March 24, 2014, and filed an Order on March 25, 2014, denying Loyd's request for continuing medical maintenance and Loyd's request to commute.4 The court found that the prior permanent partial disability order of December 20, 2013, had become final, and thus, the court lacked jurisdiction to grant Loyd's requests. Loyd appealed, and the Court of Civil Appeals affirmed. Loyd petitioned this Court for certiorari review, and we granted review on March 30, 2015. Standard of Review ¶5 The issues presented in this case concern the jurisdiction of the Workers' Compensation Court to hear and determine Loyd's request for continuing medical maintenance as well as Loyd's request to commute a portion of his permanent partial disability award to a lump sum payment. Such jurisdictional issues are reviewed de novo. See Triad Transport, Inc. v. Wynne, 2012 OK 30, ¶ 7, 276 P.3d 1013, 1016. Under a de novo standard of review, this Court is afforded "plenary, independent, and non-deferential authority to examine the issues presented." Benefiel v. Boulton, 2015 OK 32, ¶ 10, 350 P.3d 138, 142 (internal quotation omitted). Loyd's Request to Commute a Portion of His Permanent Partial Disability Award to a Lump Sum ¶6 Section 41(A) of Title 85 provides: A. Awards for permanent partial disability under Section 22 of this title shall be made for the total number of weeks of compensation which the Court shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of his death, by the surviving beneficiary entitled to the proceeds as provided in Section 48 of this title. All awards shall be paid by periodic installments as determined by the Court. Whenever an injured person receives an award for permanent partial disability, permanent total disability or death benefits, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court. This authorization for commutation shall not be applicable to attorney fees in permanent total disability cases. The lump-sum payment shall not exceed Four Thousand Dollars ($4,000.00) or twenty-five percent (25%) of the total award, whichever is the larger sum. . . .5 ¶7 This Court has not previously addressed whether a claimant must seek to commute a permanent partial disability award at the hearing on permanent partial disability, as the Employer in this case argues, or whether the claimant may seek to commute the award at a later date. In Lee Way Motor Freight, Inc. v. Wilson, 1980 OK 48, 609 P.2d 777, the claimant was awarded permanent partial disability benefits in September of 1978. In January of 1979, claimant sought to commute the balance of his award to a lump sum. Although the issue on appeal in Wilson was whether a later-enacted statute limited the amount of the award that could be commuted, the Court did not express concern or even mention that claimant's motion was pressed after the hearing on permanent partial disability. Similarly, in Bagley v. Big "E" Industries, 1989 OK CIV APP 34, 776 P.2d 569, the claimant was awarded permanent partial disability benefits in August of 1987. In September of 1987 he moved to commute his award to lump sum payment. Again, although the issue on appeal was whether the trial court could direct payment of the lump sum to claimant's ex-wife to satisfy back child support, the Court of Civil Appeals did not express concern that claimant's motion was filed after the hearing on permanent partial disability. ¶8 Although Wilson and Bagley do not directly address the issue in the case before us, we find such cases consistent with the language of § 41(A) and conclude that a claimant may seek to commute his or her permanent partial disability award after the hearing on permanent partial disability. Section 41(A) provides that "[w]henever an injured person receives an award for permanent partial disability . . . the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court."6 Such emphasized language implies that the court has already issued an order awarding permanent partial disability benefits. Thus, a claimant would necessarily have to seek to commute the award after receiving the order awarding permanent partial disability benefits. In addition, the statutory language only allows the court to commute a portion of the award "for good cause shown."7 A claimant, at the time of the hearing on permanent partial disability, may or may not have a specific financial hardship or "good cause" to seek payment of the award in a lump sum. However, such financial need could arise at a later date, requiring the claimant to seek to commute the award after such award has been made. ¶9 In the case before us, although Loyd testified to his financial situation regarding his request to commute a portion of his award to a lump sum payment, the trial court made no ruling on the issue. Instead, the trial court found it lacked jurisdiction to even hear the issue. On remand, the court shall determine whether Loyd has shown good cause, entitling him to have a portion of his permanent partial disability award commuted to a lump-sum payment. Loyd's Request for Continuing Medical Maintenance ¶10 In the case before us, although continuing medical maintenance was listed on Loyd's Form 9, the transcript of the hearing on permanent partial disability held on November 26, 2013, is not part of the appellate record. Employer's brief states that "Claimant did not 'expressly ask' for Continued Medical Maintenance at the November 23, 2013 hearing,"8 and Loyd specifically states in his brief that the "trial court was not called upon in the [November] 2013 hearing to address [his] need for continuing medical maintenance."9 The court's order awarding permanent partial disability did not address continuing medical maintenance. Although Loyd had the opportunity to appeal the order to seek a correction or ruling on the issue, he did not appeal and the order became final. ¶11 In Pitchford v. Jim Powell Dozer, Inc., 2000 OK 12, 996 P.2d 935, the claimant was injured on the job and received an award of permanent partial disability benefits. Approximately four years later, claimant sought to reopen the case based on change of condition, and the trial court found that claimant had sustained a change of condition for the worse and awarded additional permanent partial disability benefits. At the hearing that resulted in the awarding of additional permanent partial disability benefits, claimant did not request reservation of continuing medical maintenance, and the order of the court did not address or reserve for future hearing the issue of continuing medical maintenance. Claimant did not appeal the order. Two years later, claimant sought reimbursement for prescription medications purchased after the order awarding additional permanent partial disability benefits. Claimant argued that the prescriptions were specifically for the maintenance of the previously adjudicated change in condition. ¶12 The Court, quoting Bill Hodges Truck Co. v. Gillum, 1989 OK 86, 774 P.2d 1063, stated: A permanent disability award constitutes a solemn adjudication that the worker's healing period has come to an end and his condition or state of health has reached the very optimum that is then medically obtainable. The law assumes that a condition of health, once adjudged to be permanent, is stationary. Stationary conditions generally require no medical care or maintenance. The moment permanent disability begins, the right to receive medical treatment ceases by operation of law except, of course, for certain limited tightly structured and explicitly authorized situations. Permanent disability, partial or total is presumed to continue until recurrence of temporary disability is established.... Once adjudged to have permanent disability, a worker is entitled to medical attention only upon establishing recurrence of the postaward healing period in a reopening proceeding under 85 O.S.1981 § 28.10 The Court held that the order awarding claimant additional permanent partial disability benefits "caused claimant's right to receive medical treatment to end unless the claimant could demonstrate that under the facts in his situation he could fall within 'certain limited tightly structured and explicitly authorized situations.'"11 The Court found that such situations included situations where the original order awarding permanent disability benefits authorized future medical treatments or continuing medical care.12 ¶13 The Court also found that because the claimant did not request reservation of continuing medical maintenance and the trial court's order did not address or reserve the issue of continuing medical maintenance, the claimant could not be "reimbursed for prescription medications purchased after the order determining permanent partial disability."13 The Court held: "For the prescriptions to be considered for maintenance purposes, they must be included in the order granting permanent partial disability. Failing to show that he falls within the exception, claimant must show a change of condition for the worse before continuing medical maintenance benefits may be awarded."14 ¶14 In the case before us, Loyd asks us to rely on Armstrong v. Unit Drilling, 2002 OK 17, 43 P.3d 383. We find Armstrong is distinguishable. In that case, it was undisputed that the claimant had sought continued medical maintenance at the hearing on his claim for permanent disability but that the trial court failed to include such in its order.15 Additionally, Armstrong is distinguishable because in that case the Court found it was clear that the parties had interpreted the trial court's original order to require employer to pay for prescription costs because the employer had continued to pay for those prescriptions for six years after the order was entered.16 ¶15 Here, the order was entered on December 20, 2013, and by the time the hearing occurred on Loyd's request for continuing medical maintenance on March 24, 2014, Employer had already ceased paying for Loyd's doctor visits to Dr. Moorad and Dr. Kaplan and stopped paying for the prescriptions prescribed by those doctors.17 Employer in this case clearly interpreted the trial court's order to not include continuing medical maintenance in the form of continued prescription costs and doctor visits. ¶16 Finally, although Loyd's failure to request continuing medical maintenance at the hearing on permanent partial disability precludes the application of Armstrong, such also precludes Employer's res judicata defense. Under principles of res judicata, or claim preclusion, "a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action." Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887, 896 (emphasis added). The Employer has the burden to show the issue to be precluded was actually litigated or decided. Okla. Nat. Gas, Inc. v. Messer, 2011 OK CIV APP 20, ¶ 19, 249 P.3d 99, 104. Employer has specifically admitted that Loyd did not ask for continuing medical maintenance at the hearing on permanent partial disability in November of 2013. Thus, we conclude that Employer has failed to meet its burden to show the issue of continuing medical maintenance was actually litigated at the November 2013 hearing. ¶17 Because Loyd did not request reservation of continuing medical maintenance and the trial court's order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, and the award became final after Loyd did not appeal, as in Pitchford, Loyd's only recourse is to seek continuing medical maintenance through a reopening proceeding under § 28.18 ¶18 This Court has long held that "[t]he Workers' Compensation Court has exclusive original jurisdiction over all proceedings for compensation which is legally due for an on-the-job injury. This statutory cognizance includes all conceivable § 28 proceedings. The trial tribunal's power to reopen a claim over which it already has acquired jurisdiction cannot be drawn into question."19 Thus, the trial court's conclusion that it lacked the jurisdictional power to hear Loyd's request was error. On remand, the trial court is directed to treat Loyd's request for continuing medical maintenance as a reopening claim under 85 O.S. 2001 § 28.20 Conclusion ¶19 We hold that Loyd may seek to commute his permanent partial disability award after the hearing on permanent partial disability under 85 O.S. 2001 § 41(A). On remand, the court shall determine whether Loyd has shown good cause, entitling him to have a portion of his permanent partial disability award commuted to a lump-sum payment. Additionally, because Loyd did not request reservation of continuing medical maintenance and the trial court's order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, we hold that Loyd's only recourse was to seek continuing medical maintenance through a reopening proceeding under 85 O.S. 2001 § 28. On remand, the trial court is directed to treat Loyd's request for continuing medical maintenance as a § 28 reopening claim and permit the introduction of additional medical and testimonial evidence. WORKERS' COMPENSATION COURT OF EXISTING CLAIMS' ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ¶20 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Gurich, JJ., concur. ¶21 Winchester, Taylor, JJ., dissent. ¶22 Colbert, J., not participating. FOOTNOTES 1 Record on Appeal at 34. 2 Loyd attempted to report the injury to his Employer on that same day. However, soon after the incident on November 20, 2009, he was called into his supervisor's office to discuss the incident that occurred on November 10, 2009. Loyd was again called into his supervisor's office on November 23, 2009, and was terminated for the incident occurring on November 10, 2009. It appears from the record, that Loyd reported the later injury of November 20, 2009, to his Employer soon after he was terminated. Transcript of Proceedings at 17-21 (May 20, 2010). 3 Record on Appeal at 110. 4 We note that Loyd's original claim was filed in the Workers' Compensation Court. However, by the time the trial court issued the order now on appeal on March 25, 2014, the Workers' Compensation Court had been renamed the Workers' Compensation Court of Existing Claims pursuant to 85A O.S. Supp. 2013 § 400. 5 85 O.S. 2001 § 41(A) (emphasis added). 6 85 O.S. 2001 § 41(A) (emphasis added). 7 85 O.S. 2001 § 41(A). 8 Respondent's Answer Brief at 7. 9 Brief of Petitioner at 5. 10 Pitchford, 2000 OK 12, ¶ 5, 996 P.2d at 936-37 (quoting Bill Hodges Trucking Co. v. Gillum, 1989 OK 86, 774 P.2d 1063). In Gillum, the Claimant was awarded permanent total disability benefits after suffering two heart attacks while on the job. The order awarding permanent total disability benefits included a clause requiring the employer to pay "'all reasonable and necessary medical expenses incurred by claimant as a result of said injury.'" Id., ¶ 2, 774 P.2d at 1064. The order became final after neither party appealed. Approximately three years later, the claimant filed a Form 9 seeking approval of a heart transplant, arguing that such transplant constituted a "reasonable and necessary expense" under the court's previous permanent total disability order. The Court held that the order awarding permanent total disability benefits to the claimant could not "serve as authority for medical treatment beyond its date. The worker's postaward quest for additional medical care . . . [was] in law but a § 28 reopening claim, which must be based on a changed condition that necessitates heart transplant surgery. . . . The worker was required to establish an after-occurring (postaward) need for the requested medical procedure." Id., ¶ 7, 774 P.2d at 1066. 11 Pitchford, 2000 OK 12, ¶ 6, 996 P.2d at 937. 12 Id., ¶ 7-8, 996 P.2d at 937 (citing Orrick Stone Co. v. Jeffries, 1971 OK 116, 488 P.2d 1243; Depue v. Barsh Truck Lines, 1972 OK 5, 493 P.2d 80; City of Frederick v. Elmore, 1978 OK 160, 587 P.2d 1365; Zebco Motorguide v. Briggs, 1994 OK CIV APP 60, 881 P.2d 103). 13 Id., ¶ 9, 996 P.2d at 937. 14 Id. 15 Armstrong, 2002 OK 17, ¶¶ 2-3, 43 P.3d at 384. 16 Id., ¶ 11, 43 P.3d at 385-86. 17 Transcript of Proceedings at 6-7 (Mar. 24, 2014). Loyd testified at the hearing on March 24, 2014, that Dr. Moorad informed him sometime in February of 2014 that Employer was no longer paying for Loyd's visits, so he would no longer be able to treat him. Id. 18 See 85 O.S. 2001 § 28. 19 Gillum, 1989 OK 86, ¶ 10, 774 P.2d at 1067 (citing 85 O.S. 1981 § 28). 20 See Id., ¶ 19, 774 P.2d at 1069.

a5f5ed65-6bd3-43f4-8114-85cb9418e64c

Pierson v. Joplin

oklahoma

Oklahoma Supreme Court

PIERSON v. JOPLIN2016 OK 40Case Number: 114192Decided: 04/12/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA FOR PUBLICATION IN OBJ ONLY. NOT RELEASED FOR PUBLICATION. KENNETH P. PIERSON, PAULA L. TAYLOR, Plaintiffs/Appellants, v. JUDGE LARRY JOPLIN, JUDGE ROBERT BELL, JUDGE KENNETH BUETTNER, Defendants/Appellees. MEMORANDUM OPINION Taylor, J., ¶1 The questions presented to this Court are whether the Federal Rules of Civil Procedure apply to state court actions and whether the Appellees, judges on the Court of Civil Appeals, are immune from suit. We answer the first question in the negative and the second in the affirmative. I. BACKGROUND AND PROCEDURAL HISTORY ¶2 On April 25, 2007, Lahoma Pierson Hall (Ms. Hall) died in the care of hospice after a seven-day stay in AHS Tulsa Regional Medical Center (Hospital). On March 20, 2009, Appellants Kenneth P. Pierson, son of Ms. Hall, and Paula L. Taylor, granddaughter of Ms. Hall, filed a petition, CJ-2009-2452 (Pierson I), against the Hospital stating claims on their own behalf. After amending the petition several times, Appellants filed their fourth amended petition on October 23, 2009. Appellants stated therein "[t]he plaintiffs are not pleading to have the court act on Ms. Lahoma Hall's rights for relief for actions such as medical malpractice or wrongful death." On February 24, 2010, the trial court dismissed the petition in Pierson I without prejudice for failure to state a claim. ¶3 On February 23, 2011, almost a year later, Appellants attempted to reopen Pierson I by filing another petition therein, but the petition was assigned a new case number, CJ-2011-1055 (Pierson II). This petition was almost identical to the Pierson I petition. On January 18, 2012, the trial court stated that the facts alleged showed no wrongs caused to the Appellants and no cognizable claim on their behalf. The trial court noted that no action had been brought by Ms. Hall's estate or her personal representative. ¶4 On February 2, 2012, Appellants filed a third amended petition in Pierson II, in which they, as next of kin, alleged the wrongful death of Ms. Hall due to the Hospital's actions. On February 10, 2012, the Hospital filed a motion to dismiss arguing that the wrongful death action was barred by the two-year statute of limitations period. On March 16, 2012, the trial court found that the wrongful death action was barred by the two-year statute of limitations and dismissed the petition with prejudice. ¶5 Appellants filed a Petition in Error on April 16, 2012 (No. 110,592) in Pierson II. On January 18, 2013, the Court of Civil Appeals affirmed the trial court's dismissal of the wrongful death action. The Court of Civil Appeals noted that "[e]ven if the Third Amended Petition relates back to the original petition, the original petition was filed more than two years after Decedent's death. Therefore, Appellant's wrongful death action is barred by the two-year statute of limitations." ¶6 Appellants filed a petition for certiorari, which on April 1, 2013, this Court denied, and on April 17, 2013, mandate issued. On April 22, 2013, Appellants filed a petition for rehearing with the Court of Civil Appeals which was denied on April 23, 2013, as untimely. On January 21, 2014, Appellants filed a motion in this Court for post-decisional relief in Pierson II, citing Rule 60 of the Federal Rules of Civil Procedure as authority and naming for the first time the Oklahoma Court of Civil Appeals, Judge Larry Joplin, Judge Robert Bell, and Judge Kenneth Buettner as parties. On February 10, 2014, this Court recast the motion as one to recall mandate and to vacate the Court of Civil Appeals' opinion. In the same order of February 10, 2014, this Court denied the motion, stating, "Appellants have not shown fraud, mistake, or unavoidable casualty, which would support the recall of the mandate," citing Simmons v. Harris, 1924 OK 1137, ¶ 0, 235 P. 508. ¶7 On March 24, 2014, Appellants filed another motion for post-decisional relief from this Court's February 10, 2014 order, again citing the Federal Rules of Civil Procedure as authority. On March 25, 2014, this Court ordered that Appellants' second motion would not be considered, in light of this Court's February 10, 2014 order, and that no further filings would be considered in the Pierson II appeal. ¶8 On January 5, 2015, over nine months after this Courts' order that no further filings would be considered, Appellants filed a new lawsuit, CV-2015-18 (Pierson III), against Appellees. On February 27, 2015, Appellants dismissed their cause of action without prejudice. ¶9 On April 23, 2015, Appellants filed CV-2015-746 (Pierson IV). On June 10, 2015, the trial court dismissed the petition with prejudice for failure to state a claim upon which relief can be granted, based upon the Appellees' absolute immunity for their judicial acts, citing Oklahoma Constitution, Article VII, Section 1. The court also found that Appellants' action was improper and frivolous and that Appellees were entitled to sanctions to be awarded pursuant to a separate application and hearing. ¶10 On June 15, 2015, Appellants filed a motion to vacate and set aside the June 10, 2015 order. On June 29, 2015, Appellants filed a motion for relief from judgment regarding the June 10, 2015 order. On July 10, 2015, Appellees filed a motion for the award of attorney's fees, costs, and non-monetary sanctions. On July 15, 2015, the trial court denied Appellants' motion to vacate due to Appellants' failure to assert any specific legal basis, under Title 12, Section 1031 of the Oklahoma Statutes, upon which the court could consider vacating its order. The court granted Appellees' motion for additional sanctions. Finally, the court ordered that Appellants "shall immediately cease and desist from filing any further pleadings in this matter" and in the event they continue to file frivolous and repetitive motions, Appellants may be held in contempt or further sanctioned for their conduct. ¶11 On August 10, 2015, Appellants filed their Petition in Error (No. 114,192) in the present appeal challenging the district court's dismissal of their case in Pierson IV.1 On August 26, 2015, Appellees requested this appeal be treated as a Rule 1.36 accelerated appeal. On September 9, 2015, this Court granted Appellees' motion. ¶12 Appellants posited six issues on appeal which can be consolidated into the two questions posed to this Court. The Appellants have not challenged the sanctions imposed against them. II. ANALYSIS ¶13 This Court evaluates the trial court's judgment in a motion to dismiss under a de novo standard of review. Alexander v. Alexander, 2015 OK 52, ¶ 8, 357 P.3d 481, 483. A motion to dismiss for failure to state a claim will be upheld if it appears without doubt that the plaintiff can prove no set of facts in support of the claim for relief. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208. A. Federal Rules of Civil Procedure Applicability in State Courts ¶14 We first turn to the Federal Rules of Civil Procedure's applicability in state court. In Pierson IV, Appellants sought relief from the Court of Civil Appeal's January 18, 2013 opinion, and this Court's February 10, 2014 and March 25, 2014 orders. Appellants sought relief under Rule 60(b)(4), (6), and (d)(3) of the Federal Rules of Civil Procedure. ¶15 Rule 1 of the Federal Rules of Civil Procedure states that the "rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81." Fed. R. Civ. P. 1.2 The District Courts of Oklahoma, the Oklahoma Court of Civil Appeals, and the Oklahoma Supreme Court are not United States district courts and are thus not subject to Rule 60.3 Appellants have failed to cite any controlling or relevant authority to support their position on this issue. Oklahoma District Court Rules, Rule 4(c), 12 O.S.2011, app.; Oklahoma Supreme Court Rules, Rule 1.36(g), 12 O.S.2011, app.1. B. Immunity ¶16 We next turn to the trial court's dismissal of Pierson IV based on Appellees' absolute immunity and whether this was in error in light of the alleged fraud of the Appellee judges. Appellants allege that Appellees' use of the phrasing "the original petition filed February 23, 2011," in their January 18, 2013 opinion, in the appeal in Pierson II, was an intentional misrepresentation of fact; that by using the term original petition in regard to the petition filed on February 23, 2011, instead of the petition from Pierson I on March 20, 2009, the Appellees committed perjury and intentionally defrauded the court into thinking the Appellants did not meet the statute of limitations in the underlying case.4 Further, Appellants claim the Oklahoma Supreme Court committed judicial misconduct and obstructed justice with their February 10, 2014 and March 25, 2014 orders in the Pierson II appeal and that those orders should be declared void. ¶17 From the filing of the appeal in Pierson II until the present time, the Appellees have all been judges on the Oklahoma Court of Civil Appeals. The Appellees were assigned the appeal in Pierson II. At all relevant times during the proceedings in this case and the underlying cases, Appellees were acting as judicial officers, pursuant to Article 7, Section 1 of the Oklahoma Constitution. "[A] judicial officer is not liable to civil action for judicial acts." Quindlen v. Hirschi, 1955 OK 164, ¶ 6, 284 P.2d 723, 725. This Court has "stated that '[a]n official's immunity depends largely upon the nature of the act.'" State ex rel. OBA v. Wilcox, 2009 OK 81, ¶ 49, 227 P.3d 642, 660 (quoting N. Side State Bank v. Bd. of Cty. Comm'rs of Tulsa Cty., 1994 OK 34, ¶ 12, 894 P.2d 1046, 1050-1051). The Court has defined a purely judicial act, which would qualify for immunity, as "one done by a member of the judicial department in construing the law or applying it to a particular state of facts." N. Side State Bank, 1994 OK 34, ¶ 12, n. 13, 894 P.2d at 1050-1051, n. 13. ¶18 Appellants have failed to show any fraudulent acts which would remove the Appellees from the protection of immunity. The record cannot support claims for actual fraud or constructive fraud. This Court has defined actual fraud as the "'intentional misrepresentation or concealment of a material fact, with an intent to deceive, which substantially affects another person.'" Horton v. Hamilton, 2015 OK 6, ¶ 18, 345 P.3d 357, 363 (quoting Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1046). In the present case, the Appellants have not shown intent to deceive on the part of the Appellees in order to establish actual fraud. Any alleged misstatement of fact in the opinion would not be actual fraud without more. ¶19 This Court has defined constructive fraud as "'a breach of a legal duty or equitable duty to the detriment of another, which does not necessarily involve any moral guilt, intent to deceive or actual dishonesty of purpose.'" Id. Because any alleged act by the Appellees operated on the Appellees themselves and the court, in Appellees' positions as officers of the court, the alleged act would also not meet the requirement for either type of fraud that the act be upon another. Here, because Appellees were members of the judiciary applying the law to the particular facts of the case, they were performing a purely judicial act and are immune from any civil suit. State ex rel. OBA v. Wilcox, 2009 OK 81, ¶ 49, 227 P.3d 642, 660. III. CONCLUSION ¶20 The Federal Rules of Civil Procedure do not apply here. The district court properly dismissed Appellants' petition because they failed to state a claim upon which relief can be granted. The district court properly ruled the Appellees are immune from civil liability for their judicial acts. We find all other issues raised by Appellants are unsupported by relevant authority and are without merit. The dismissal order of the district court is affirmed. As Appellants did not appeal the granting of sanctions against them, the sanctions became final. This opinion is the final decision on these issues; anything further from the Appellants related to these issues or claims are barred and Appellants may be held in contempt and further sanctioned. This matter is remanded to district court to determine amount of sanctions previously imposed by the district court. ALL JUSTICES CONCUR. FOOTNOTES 1 Appellants alleged an appeal in Pierson II as well, but failed to attach a certified copy of the judgment, decree, or order. Oklahoma Supreme Court Rules, Rule 1.25(a), 12 O.S.2011, app.1. 2 While not applicable here, Rule 81 of the Federal Rules of Civil Procedure provides an exception for applicability of the rules to civil actions after their removal from state court to a United States district court, but not before removal. Fed. R. Civ. P. 81(c)(1). 3 "The term 'District Courts of the United States,' as used in the rules, without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under article 3 of the Constitution." Mookini v. United States, 303 U.S. 201, 205 (1938). 4 The phrase, "the original petition filed February 23, 2011," in the Court of Civil Appeals opinion is clear in context, where Appellees were referring to the date of the original petition for wrongful death claim not the first petition filed in Pierson I. While Appellants' initial petition in Pierson I on March 20, 2009, was the first time any petition was filed by the Appellants, it was not the proper date to use for determining when the wrongful death claim was brought because Appellants specifically disclaimed that they were bringing any wrongful death claim. Appellants state that their disclaimer in Pierson I was only valid in regard to a potential wrongful death claim on behalf of the Estate of Ms. Hall and did not disclaim the Appellants' right for a wrongful death claim. However, a wrongful death action can only be brought by the personal representative of the deceased, or the widow or next of kin if there is no appointed representative. 12 O.S.2011, §§ 1053, 1054. Appellants were not the appointed personal representative of Ms. Hall; therefore the only wrongful death action they were able to disclaim was their own, under 12 O.S.2011, § 1054, as next of kin.

ff19c6ea-0ac0-4016-a9ce-f116b1a067e8

Bober v. Oklahoma State Univ.

oklahoma

Oklahoma Supreme Court

BOBER v. OKLAHOMA STATE UNIVERSITY2016 OK 78Case Number: 114038Decided: 06/28/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ANNETTE LEGARDE-BOBER, Petitioner, v. OKLAHOMA STATE UNIVERSITY, SELF INSURED (OWN RISK #14526) and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION ¶0 Petitioner Annette Legarde-Bober was injured at work and sought treatment and compensation from her Employer OSU/OKC. Employer denied compensability, arguing Petitioner's injury did not arise in the course and scope of her employment under 85A O.S. Supp. 2013 § 2(13). The administrative law judge determined Petitioner's injury did not occur in the course and scope of employment, and the Workers' Compensation Commission affirmed. Petitioner appealed the decision of the Commission, and we retained the case. Upon consideration, we hold Petitioner was in the course and scope of her employment as the term is defined in 85A O.S. Supp. 2013 § 2(13) because her actions at the time of her injury were related to and in furtherance of the business of her Employer OSU/OKC, and she was on the premises of her Employer when she fell. WORKERS' COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT John R. Colbert, J. Colbert & Associates, Ardmore, Oklahoma, for Petitioner Annette Legarde-Bober Heather A. Lehman Fagan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Respondents Oklahoma State University and Own Risk GURICH, J. Facts & Procedural History ¶1 Petitioner was employed by Employer Oklahoma State University at the Oklahoma City campus. She was a teacher at the child development lab. The child development lab is a childcare facility on the campus of OSU/OKC, and childcare is available for students and employees of OSU/OKC. The lab is located in a building on the OSU/OKC campus. The building where the lab is located is surrounded by a sidewalk and parking lot. The parking lot and sidewalk surrounding the building where Petitioner worked was owned and maintained by the University, and Petitioner testified she had previously seen OSU employees working in that parking lot. Petitioner was given a parking permit by her Employer, which gave her permission, and in fact, required her to park in this particular parking lot. ¶2 On the morning of March 4, 2014, Petitioner arrived at the OSU/OKC campus around 8:55 a.m. because she was required by her Employer to begin her shift at 9:00 a.m. She testified that on that morning, the weather was cold and icy. Petitioner did not have the option to work remotely and was required to report to the child development lab on campus in order to perform her job duties. Although other businesses were closed that day due to the weather conditions, the OSU/OKC campus was open, and students and parents had already begun dropping their children off at the child development lab for childcare. Petitioner testified that after parking in the designated parking lot, she got out of her car, walked across the parking lot, and stepped up onto the curb to go into the building. The Employer's security camera video for the day in question shows that as Petitioner stepped up onto the curb, she slipped and fell on the ice.1 ¶3 The record contains an "Employee Injury Report," filled out and signed by Petitioner's supervisor on the date of the incident--March, 4, 2014. The injury report provides: "Went back & looked on camera and it recorded employee falling @ 9:00."2 Where the injury report asks "How could this injury have been prevented?" the supervisor states: "Entire parking lot and sidewalk was icy."3 Notably, where the injury report asks "Injured on employer's premises?" the supervisor marked "Yes."4 In fact, Employer OSU/OKC initially determined Petitioner was in the course and scope of her employment when she fell and provided treatment and temporary total disability benefits.5 ¶4 Petitioner then sought additional treatment and compensation for her injuries. Employer OSU/OKC denied compensability, arguing Petitioner's injury did not arise in the course and scope of her employment. The administrative law judge held a hearing on January 28, 2015, and determined that Petitioner's injury did not occur in the course and scope of employment within the meaning of the Administrative Workers' Compensation Act and denied her claim for additional treatment and compensation. The Commission affirmed the decision of the ALJ, and Petitioner timely appealed the decision to this Court. We retained the case. Standard of Review ¶5 Section 78 of Title 85A provides: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was: 1. In violation of constitutional provisions; 2. In excess of the statutory authority or jurisdiction of the Commission; 3. Made on unlawful procedure; 4. Affected by other error of law; 5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence; 6. Arbitrary or capricious; 7. Procured by fraud; or 8. Missing findings of fact on issues essential to the decision. 85A O.S. Supp. 2013 § 78(C). The issue presented in this case is an issue of statutory interpretation. Statutory interpretation presents a question of law which we review under a de novo standard. Such review is plenary, independent, and non-deferential. State ex rel. Protective Health Servs. State Dep't of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064. Analysis ¶6 "[C]ourse and scope of employment" in Title 85A of the AWCA means: [A]n activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer.6 The Petitioner in this case was hired as a teacher for the child development lab. She was instructed to report to work at the lab. Employer OSU/OKC gave Petitioner a parking permit and instructed her to park in this particular parking lot located on its premises. Petitioner's actions at the time of her injury were related to and in furtherance of the business of the OSU/OKC child development lab, and at the time of her injury, Petitioner was following her Employer's instructions exactly. In addition, the Employer OSU/OKC specifically admitted on the Employee Injury Report that the incident occurred on its premises. ¶7 The AWCA also specifies those situations which are not within the course and scope of employment. The facts of this case do not fall under any of the exceptions to the course and scope of employment listed in 85A O.S. Supp. 2013 § 2(13)(a-d): a. an employee's transportation to and from his or her place of employment, b. travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee, c. any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer, or d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility and the work break is authorized by the employee's supervisor . . . .7 ¶8 Subsection (a), transportation to and from the place of employment, does not apply to the facts of this case because Petitioner had arrived at her place of employment when the injury occurred. For similar reasons, subsection (b), travel by an employee in furtherance of personal affairs, does not apply because Petitioner was not traveling at the time of the incident and was not engaged in any activity in furtherance of personal affairs. ¶9 Subsection (c), "any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer," likewise does not apply. Although the parties agree Petitioner had not yet clocked in to begin her work day when she fell and was injured, this exception does not apply until the employee leaves the premises. As established above, Petitioner had arrived at her Employer's place of business and was on the OSU/OKC premises when she fell. She was not in a "parking lot or other common area adjacent to an employer's place of business." Adjacent means "[l]ying near or close to, but not necessarily touching,"8 "not distant," "nearby," or "having a common endpoint or border."9 The parking lot and sidewalk surrounding the building where Petitioner worked was not on property lying near or close, nearby, or having a common border with the OSU/OKC campus. The parking lot and sidewalk were in fact on the premises of the OSU/OKC campus, which Employer admitted in the Employee Injury Report. ¶10 Subsection (d) excepts from the course and scope of employment "any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility and the work break is authorized by the employee's supervisor." Although the facts of this case clearly do not apply to this exception, we note that the Legislature specifically distinguished between an employee's work break outside the employer's facility and an employee's work break inside the employer's facility in this exception. Had the Legislature also intended to make a similar distinction in the exception in subsection (c), it could have easily done so. Conclusion ¶11 Because Petitioner's actions at the time of her injury were related to and in furtherance of the business of her Employer OSU/OKC, and Petitioner was on the premises of her Employer when she fell, she was in the course and scope of her employment as the term is defined in § 2(13). The primary goal of statutory construction is to ascertain and follow legislative intent. The plain meaning of a statute's language is conclusive as to such intent.10 Despite the Legislature's attempt to create a bright-line rule, cases of this nature have always been, and will continue to be highly dependent on the specific facts of each case. Because Petitioner was in the course and scope of employment when she was injured, we need not reach the constitutional issues raised. The Commission's interpretation of § 2(13) in this case was legally incorrect and its order denying compensability was clearly erroneous in view of the competent evidence presented. WORKERS' COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶12 Reif, C.J., Combs, V.C.J., Watt, Edmondson, Colbert (by separate writing with whom Watt, J., joins), and Gurich, JJ., concur. ¶13 Kauger, Winchester (by separate writing with whom Kauger, Taylor, JJ., join), and Taylor, JJ., dissent. FOOTNOTES 1 The security camera video also reflects the entire parking lot was covered in ice and snow. On cross examination, Petitioner was asked the following: Q: And when you walked from your car up towards the doorway you were first attempting to go in to, you didn't notice any sand or ice, correct? A: I noticed ice. Q: I'm sorry ice melt, I apologize? A: I didn't. Q: Did you see any snow plows in the parking lot? A: No. Q: And was anyone out there shoveling? A: No. Transcript of Hearing at 20 (Jan. 28, 2015). 2 Record on Appeal at 24. 3 Id. 4 Id. 5 Transcript of Hearing at 6-7 (Jan. 28, 2015). 6 85A O.S. Supp. 2013 § 2(13) (emphasis added). Before 2010, this Court's case law provided the relevant authority in determining whether an employee was in the course and scope of his or her employment. However, in 2010, the Legislature undertook to define the meaning of course and scope of employment by statute, and such language remained in the Workers' Compensation Code enacted in 2011. See 85 O.S. Supp. 2010 § 11(A); 85 O.S. 2011 § 312(6). 7 85A O.S. Supp. 2013 § 2(13)(a-d). 8 Black's Law Dictionary (10th ed. 2014). 9 Merriam Webster, Adjacent, http://www.merriam-webster.com/dictionary/adjacent (last visited June 15, 2016). 10 Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307. COLBERT, J., concurring specially with whom WATT, J. joins. ¶1 I concur in the majority's analysis and decision finding that Claimant's injuries are in the "course and scope of employment" as set forth in Title 85A, section 2(13) of the Oklahoma Statutes. I write separately, however, to express my concern in the majority's continued side-stepping of constitutional challenges properly raised before this Court. ¶2 This Court held in Coats v. Fallin that constitutional challenges to the Administrative Worker's Compensation Act (AWCA) would be assessed on an as applied basis. 2013 OK 108, 316 P.3d 924. Petitioner, here, challenged the constitutionality of the AWCA as a due process violation under Article 2 Section 6 of the Oklahoma Constitution. And, Petitioner specifically alleged that section 2(13)(a) and (c) of Title 85A violated her constitutionally protected right to a remedy and access to the courts. Yet, the majority's opinion makes no acknowledgment of Petitioner's claims. ¶ 3 This Court must consider constitutional challenges that are adequately presented in the record. Dow Jones & Co., Inc. v. State ex rel. Okla. Tax Com'n, 1990 OK 6 ¶ 6, 787 P.2d 843, 845, see also Okla. Stat. tit. 85A, § 78(C)(Supp. 2014). But, rather than keeping with the assurance made in Coates v. Fallin, and our fundamental responsibility to support and obey the Constitution, this Court continues to dodge the inevitable. WINCHESTER, J., with whom Kauger, and Taylor, JJ., join, dissenting: ¶1 I respectfully dissent. The legislature made a policy decision to draw a clear line for the employer and employee that the "clock" began and ended the employer's liability under Workers' Compensation, unless directed otherwise by the employer. The definition section of the Workers' Compensation law defines "course and scope of employment" and excludes an employee's transportation to and from the place of employment and excludes injury occurring in a parking lot before the employee clocks in or begins work for the employer.1 The majority have now ruled that the employee is within the course and scope of employment when entering the parking lot, even though the employee is not clocked in. ¶2 The whole context of the statute revolves around what the legislature has excluded from falling within the phrase "course and scope of employment." The term doesn't include an employee's transportation to and from the place of employment, travel by an employee on behalf of the employer if the travel also includes personal or private affairs of the employee, injury during a work break unless the break is authorized by the employer and inside the employer's facility, and of course, injury occurring in a parking lot next to the employer's place of business before clocking in. A generalization can be made. If not clocked in, which reflects the beginning of work, an employee is not covered by Worker's Compensation because that employee is not within the course and scope of employment. Travel to the workplace, in and of itself is not within the course and scope of employment until the employee performs tasks recognized as the beginning of work. To make that clear, the legislature eliminates from "course and scope of employment," accidents in the employer's parking lot. If parking lot accidents are eliminated by the statute then Workers' Compensation does not cover such injuries. ¶3 Workers' Compensation is not an exclusive remedy if the statutes specifically eliminate parking lot injuries as coming within the "course and scope of employment." If there is actionable negligence for a parking lot injury, it is still covered by tort law. The Court's opinion holds that "A parking lot owned or controlled by the employer alone clearly constitutes the 'premises' of such employer, and is part of the 'employer's place of business." However, if the legislature has intentionally excluded the parking lot from the jurisdiction of Workers' Compensation law, the "premises" doctrine is no longer valid. The legislature has the authority and power to make such an exception. I conclude that it "clearly" made such an exception. ¶4 This type of accident fits within the category of a "going and coming injury," which is described in Graham Public Schools v. Priddy, 2014 OK 30, ¶ 1, 328 P.3d 1190, 1191. What this Court has declared to be the law based on construction of former statutes, the legislature has specifically and intentionally rejected by current statute. FOOTNOTES 1 85A O.S.Supp.2014, § 2(13) provides: "'Course and scope of employment' means an activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer. This term does not include: "a. an employee's transportation to and from his or her place of employment, "b. travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee, "c. any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer, or "d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility and the work break is authorized by the employee's supervisor . . . ."

dc669273-a972-4238-9bef-954d396cc281

Pizano v. Lacey & Assoc., LLC

oklahoma

Oklahoma Supreme Court

PIZANO v. LACEY & ASSOCIATES, LLC2016 OK 73Case Number: 112538Decided: 06/21/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ANDREA ROSA PIZANO, Plaintiff/Appellee, v. LACEY & ASSOCIATES, LLC, Defendant/Appellant, and WW GROUP, LLC, 5W GROUP, LLC, MARK WILLIAMS, JONNY WILLIAMS, and JOHN DOE, Defendants, v. EVEREST HOMES, LLC, Third-Party Defendant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Lacey & Associates, LLC, defendant/appellant, purchased commercial real estate from Everest Homes, LLC, third-party defendant. In addition, Lacey contracted with Everest to replace the roof and HVAC units on the building Lacey purchased. Everest contracted with the Williams Group, defendants, to do the work, and the Williams Group hired Pizano, plaintiff/appellee, to remove the roof. When the Williams Group did not pay Pizano, Pizano filed suit and sought to foreclose on Lacey's property pursuant to subcontractor lien statutes. Lacey claimed it received no pre-lien notice as the statutes require. Lacey and Pizano filed motions for summary judgment. The trial court granted Pizano's motion, giving her a judgment in a reduced amount, and denied Lacey's motion. On appeal, the Court of Civil Appeals reversed the trial court's determination that 41 O.S.2011, § 142.6 requires subcontractors to file a pre-lien notice. This Court granted certiorari to review this case. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF THE DISTRICT COURT IS AFFIRMED AND THE CASE IS REMANDED TO THAT COURT. Ryan S. Wilson, HARTZOG CONGER CASON & NEVILLE, Oklahoma City, Oklahoma; Attorney for Appellant. Patrick H. Lane, Jack S. Dawson, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma; Attorneys for Appellee. WINCHESTER, J. ¶1 The issue is whether Andrea Rosa Pizano, plaintiff/appellee, was required to file a pre-lien notice pursuant to 42 O.S.2011, § 142.6, to perfect her mechanic's lien against the real property owned by Lacey & Associates, LLC, defendant/appellant. I. FACTS AND PROCEDURE ¶2 In 2012, Lacey & Associates, LLC, (Lacey), contracted with Everest Homes, LLC, (Everest), to purchase a commercial building. In addition, Lacey and Everest executed an escrow agreement on October 5, 2012, for the release of additional funds to Everest if the roof was replaced after title had transferred to Lacey. After title passed to Lacey, Everest entered into a contract with the Williams Group, a contractor, to replace the roof. The Williams Group then hired Andrea Rosa Pizano, (Pizano) to remove the old roof and HVAC units, which service she performed. On March 26, 2013, Pizano sued alleging the Williams Group did not pay the contractual amount of $11,085, as agreed by the two parties. She filed a mechanic's lien on Lacey's building one day before she filed her petition. The lawsuit sought judgment against the Williams Group in the amount of $11,085, plus interest. The Williams Group never filed an answer. The trial court thereafter entered a default judgment against the Williams Group on August 6, 2013, awarding Pizano $11,085, an attorney's fee of $2,500.00 and court costs of $461.81. Pizano then sought to foreclose her lien against Lacey and be awarded court costs and attorney fees. ¶3 On October 29, 2013,1 Pizano moved for summary judgment against Lacey, based on her judgment against the Williams Group. She asserted the judgment entitled her to foreclose the lien claimed against the building and premises owned by Lacey. She requested that the property be sold to satisfy the judgment. ¶4 Lacey and Associates, LLC, answered and included a "Cross-motion for Summary Judgment." The company responded that the new roof leaked so badly that large barrels had to be placed inside the building to catch the water. Therefore, no party was entitled to be paid for the roof. Lacey also asserted that Pizano's motion should be denied because Lacey had no contract with Pizano, and also that the plaintiff failed to file the required pre-lien notice pursuant to 42 O.S.2011, § 142.6. 2 ¶5 Pizano replied that because her work included only removing and disposing of the old roof, the roof's present condition was irrelevant to her lawsuit for foreclosure. She argued that 42 O.S.2011, § 142.6 did not require her to file a pre-lien notice because she did not fit the description of "Claimant" as defined in that statute. ¶6 On January 15, 2014, the trial court found there were no disputed material facts. It granted Pizano's summary judgment motion in part, and denied Lacey's counter-motion for summary judgment. The court found that § 142.6 required Pizano to provide pre-lien notice, and because she did not give notice, she was not entitled to a lien in the entire principal amount of her claim, that is, $11,085.00. The order continued that Pizano's failure to provide such notice nevertheless entitled her to a reduced judgment amount of $9,999.00, pursuant to 42 O.S.2011, § 142.6(B)(3)(b). The trial court ordered Lacey to pay that reduced amount, as well as attorneys' fees and costs to Pizano in the amount of $10,766.18. Lacey appealed and Pizano counter-appealed. On March 23, 2015, the Court of Civil Appeals, Division IV, held that Pizano successfully preserved her subcontractor's lien, but found that genuine disputes of fact remained as to the amount owed to Pizano and the enforceability of the lien. The Court of Civil Appeals reversed and remanded the case for further proceedings. II. ANALYSIS OF THE RELEVANT STATUTES ¶7 In its petition for writ of certiorari, Lacey argues that the Court of Civil Appeals erred in holding that subcontractors are not required to give a pre-lien notice to property owners in order to assert their lien status. This issue has never been decided by this Court. ¶8 The requirement for a pre-lien notice is found in 42 O.S.2011, § 142.6. Section 142.6 requires a subcontractor to file a pre-lien notice only if that person fits within the definition of a "Claimant" found in subsection (A)(1) and (A)(2) of that statute. A "Claimant" is a "Person," other than an original contractor, who is entitled to a lien pursuant to 42 O.S.2011, § 141.3 Section 141 provides in pertinent part, "Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor . . . on said land for the erection, alteration or repair of any building, improvement or structure thereon . . . shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances. If the title to the land is not in the person with whom such contract was made, the lien shall be allowed on the buildings and improvements on such land separately from the real estate." [Emphasis added.] For Lacey to be entitled to pre-lien notice, Pizano must be entitled to a lien pursuant to 42 O.S.2011, § 141. Pizano falls within the definition of "Claimant" because under § 141, she is a person, who is not the original contractor, and she did not have a contract with the owner of the property, Lacey & Associates, LLC. Had she filed a pre-lien notice § 141 would restrict Pizano's right to a lien only against the buildings and improvements of the property separately from the real estate, because she contracted with the Williams Group to perform labor, and that entity was not the owner of the land. ¶9 Lacey cites Jones v. Purcell Investments, 2010 OK CIV APP 15, 231 P.3d 706, to demonstrate the conflict between Division IV and Division I of the Court of Civil Appeals. The issue in the Jones case involved the timing of the required pre-lien notice pursuant to § 142.6(B).4 Division IV observed that the Jones court assumed that a pre-lien notice was required by a subcontractor under that statute, without analysis of the validity of that assumption. But that assumption is based on sound reasoning. ¶10 The Jones court identified the policy behind a pre-lien notice: "Oklahoma law protects property owners by requiring subcontractors to give owners notice of mechanics' liens, which allows owners to withhold payment to the general contractor until they are sure the subcontractor will be paid by the general contractor."5 ¶11 Pursuant to § 142.6, a claimant is required to send the original contractor and the owner of the property pre-lien notice, prior to filing a lien statement under § 143.1,6 but no later than 75 days after the last date of the supply of materials, services, or labor. Today's holding, that the statutes cited above do require § 142.6(A)(1) claimants to file a pre-lien notice, has been anticipated in Jones, and 5A Vernon's Okla. Forms 2d, Real Estate 12.3 (2012 ed.), which states: "Pursuant to the specific and/or incorporating language of § 142.6 regarding §§ 141, 142 and 143, the prerequisites of § 142.6 seemingly applies to original contractors, laborers and materialmen, and subcontractors. Oklahoma decisional law specifically applies prelien notice requirements of § 142.6 to subcontractors." Volume 9 Okla. Prac., Construction Law § 6:6 (2014 ed.), regarding § 142.6 agrees: "Section 142.6 imposes a pre-lien notice requirement on persons 'other than an original contractor.' The pre-lien notice must be filed prior to the filing of the lien statement, but no later than 75 days after the last date of supply of material, services, labor or equipment in which the claimant is entitled to lien rights." [Emphasis in original; footnotes omitted.] ¶12 Because § 141 applies to Pizano, then § 142.6 applies as well. Section 142.6(B) explicitly specifies that the requirements within that statute apply before filing § 143.1 lien statements. "Prior to the filing of a lien statement pursuant to Section 143.1 of this title.the claimant shall send to the last known address of the original contractor and an owner of the property a pre-lien notice pursuant to the provisions of this section." 42 O.S. 2011, § 142.6(B). ¶13 The exception to the pre-lien requirement provided in 42 O.S.2011, § 142.6(A)(3)(b), allows a lien claim to be enforced without a pre-lien notice for claims when the aggregate amount of the claim is less than $10,000. Under subsection D, "[f]ailure by the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable." 42 O.S.2011, § 142.6(D). Pizano's claim exceeded $10,000. ¶14 We can infer from the exception cited in the above paragraph that the Legislature intended amounts less than $10,000 to be exempt from pre-lien notice. Having provided such an exception, the wording persuades this Court that if a claimant filed a claim of $10,085 without a pre-claim notice, the claim would be enforceable up to $9,999. We do not believe that the claim would be completely unenforceable if it exceeded that legislatively-approved amount by a mere $86. ¶15 The judgment of the trial court finding that Pizano failed to file pre-lien notice as required by law is affirmed. The trial court's order entitling her to a reduced judgment amount of $9,999.00 and an award of attorneys' fees and costs is affirmed. This case is remanded to the trial court to issue a judgment consistent with the law as expressed within this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF THE DISTRICT COURT IS AFFIRMED AND THE CASE IS REMANDED TO THAT COURT. CONCUR: REIF, C. J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, and GURICH, JJ. DISSENT: COLBERT, J. FOOTNOTES 1 The document is entitled "Plaintiff's Corrected Motion for Summary Judgment and Brief in Support." 2 42 O.S.2011, § 142.6: A. For the purposes of this section: 1. "Claimant" means a person, other than an original contractor, that is entitled or may be entitled to a lien pursuant to Section 141 of this title; and 2. "Person" means any individual, corporation, partnership, unincorporated association, or other entity. B. 1. Prior to the filing of a lien statement pursuant to Section 143.1 of this title, but no later than seventy-five (75) days after the last date of supply of material, services, labor, or equipment in which the claimant is entitled or may be entitled to lien rights, the claimant shall send to the last-known address of the original contractor and an owner of the property a pre-lien notice pursuant to the provisions of this section. Provided further, no lien affecting property then occupied as a dwelling by an owner shall be valid unless the pre-lien notice provided in this section was sent within seventy-five (75) days of the last furnishing of materials, services, labor or equipment by the claimant. 2. The provisions of this section shall not be construed to require: a. a pre-lien notice with respect to any retainage held by agreement between an owner, contractor, or subcontractor, or b. more than one pre-lien notice during the course of a construction project in which material, services, labor, or equipment is furnished. A pre-lien notice sent in compliance with this section for the supply of material, services, labor, or equipment that entitles or may entitle a claimant to lien rights shall protect the claimant's lien rights for any subsequent supply of material, services, labor, or equipment furnished during the course of a construction project. 3. Except as otherwise required in paragraph 1 of this subsection, the pre-lien notice requirements shall not apply to a claimant: a. whose claim relates to the supply of material, services, labor, or equipment furnished in connection with a residential project. For the purposes of this subparagraph, the term "residential" shall mean a single family or multifamily project of four or fewer dwelling units, none of which are occupied by an owner, or b. whose aggregate claim is less than Ten Thousand Dollars ($10,000.00). 4. The pre-lien notice shall be in writing and shall contain, but not be limited to, the following: a. a statement that the notice is a pre-lien notice, b. the complete name, address, and telephone number of the claimant, or the claimant's representative, c. the date of supply of material, services, labor, or equipment, d. a description of the material, services, labor, or equipment, e. the name and last-known address of the person who requested that the claimant provide the material, services, labor, or equipment, f. the address, legal description, or location of the property to which the material, services, labor, or equipment has been supplied, g. a statement of the dollar amount of the material, services, labor, or equipment furnished or to be furnished, and h. the signature of the claimant, or the claimant's representative. 5. A rebuttable presumption of compliance with paragraph 1 of this subsection shall be created if the pre-lien notice is sent as follows: a. hand delivery supported by a delivery confirmation receipt, b. automated transaction pursuant to Section 15-115 of Title 12A of the Oklahoma Statutes, or c. certified mail, return receipt requested. Notice by certified mail, return receipt requested, shall be effective on the date mailed. 6. The claimant may request in writing, the request to be sent in the manner as provided in paragraph 5 of this subsection, that the original contractor provide to the claimant the name and last-known address of an owner of the property. Failure of the original contractor to provide the claimant with the information requested within five (5) days from the date of receipt of the request shall render the pre-lien notice requirement to the owner of the property unenforceable. C. At the time of the filing of the lien statement, the claimant shall furnish to the county clerk a notarized affidavit verifying compliance with the pre-lien notice requirements of this section. Any claimant who falsifies the affidavit shall be guilty of a misdemeanor, and upon conviction thereof may be punished by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. D. Failure of the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable. 3 Title 42 O.S.2011, § 141 as amended by 2013 Okla.Sess.Laws, ch. 78, § 1 added the underlined wording: "Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements; or who shall plant any tree, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for buildings, altering, or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances in an amount inclusive of all sums owed to the person at the time of the lien filing, including, without limitation, applicable profit and overhead costs. If the title to the land is not in the person with whom such contract was made, the lien shall be allowed on the buildings and improvements on such land separately from the real estate. Such liens shall be preferred to all other liens or encumbrances which may attach to or upon such land, buildings or improvements or either of them subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalk or sidewalks, or the making of any such repairs or improvements; and such lien shall follow said property and each and every part thereof, and be enforceable against the said property wherever the same may be found, and compliance with the provisions of this act shall constitute constructive notice of the claimant's lien to all purchasers and encumbrancers of said property or any part thereof, subsequent to the date of the furnishing of the first item of material or the date of the performance of the first labor or the first use of the rental equipment on said land." 4 The Jones court construed 42 O.S.2001, § 142.6(B), which contained an ambiguity concerning whether the pre-lien notice required by the statute must be sent no later than 75 days after the first or last date materials or labor were supplied. That court held that the time began to run after the last date materials or labor were supplied. The Legislature subsequently amended the statute to confirm that holding. The amendment is now codified at 42 O.S.2011, § 142.6(B). 5 W.E. Caldwell Co. v. John Williams-Taylor Co., 1915 OK 1117, 50 Okla. 798, 150 P. 698, 699-700. 6 42 O.S.2011, § 143.1: A. Within five (5) business days after the date of the filing of the lien statement provided for in Sections 142 and 143 of this title, a notice of the lien shall be mailed by certified mail, return receipt requested, to the owner of the property on which the lien attaches. The claimant shall furnish to the county clerk the last-known mailing address of the person or persons against whom the claim is made and the owner of the property. The notice shall be mailed by the county clerk. The fee for preparing and mailing the notice of mechanics' and materialmen's lien and costs for each additional page or exhibit shall be as provided for in Section 32 of Title 28 of the Oklahoma Statutes and shall be paid by the person filing the lien. The fee shall be deposited into the County Clerk's Lien Fee Account, created pursuant to the provisions of Section 265 of Title 19 of the Oklahoma Statutes. B. The notice shall contain the date of filing; the name and address of the following: The person claiming the lien; the person against whom the claim is made and the owner of the property; a legal description of the property; and the amount claimed. Provided that, if with due diligence the person against whom the claim is made or the owner of the property cannot be found, the claimant after filing an affidavit setting forth such facts may, within sixty (60) days of the filing of the lien statement, serve a copy of the notice upon the occupant of the property or the occupant of the improvements, as the case may be, in a like manner as is provided for service upon the owner thereof, or, if the same be unoccupied, the claimant may post a copy in a conspicuous place upon the property or any improvements thereon.

6fa3a0b4-00be-4687-95a8-bdc8e5cc9995

Robinson v. Fairview Fellowship Home for Senior Citizens, Inc.

oklahoma

Oklahoma Supreme Court

ROBINSON v. FAIRVIEW FELLOWSHIP HOME FOR SENIOR CITIZENS, INC.2016 OK 42Case Number: 113735Decided: 04/19/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CYNTHIA ROBINSON, Petitioner, v. FAIRVIEW FELLOWSHIP HOME FOR SENIOR CITIZENS, INC. and STONETRUST COMMERCIAL INSURANCE CO. and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION ¶0 Petitioner Cynthia Robinson was denied workers' compensation benefits after an administrative law judge of the Workers' Compensation Commission found that her injury was not in the course and scope of employment under 85A O.S. Supp. 2013 § 2(13). Petitioner argued that § 2(13) was an unconstitutional special law and unconstitutionally denied her a remedy for her injury. The ALJ declined to address Petitioner's constitutional arguments, and the Workers' Compensation Commission affirmed. Petitioner appealed, and in an unpublished decision, the Court of Civil Appeals affirmed, declining to address Petitioner's constitutional arguments and suggesting she seek a declaration in the district court regarding the statute's constitutionality. We granted certiorari review in the case. Upon consideration, we hold that the Workers' Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission, and the Commission's decision is subject to review by this Court. COURT OF CIVIL APPEALS' OPINION VACATED; WORKERS' COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Bob Burke, Oklahoma City, Oklahoma, for Petitioner. James G. Devinney, Ponca City, Oklahoma, for Petitioner. W. Jeffrey Dasovich, Oklahoma City, Oklahoma, for Respondents. Patrick R. Wyrick, Mithun S. Mansinghani, Office of the Attorney General, Oklahoma City, Oklahoma. V. Glenn Coffee, Denise K. Davick, Glenn Coffee & Associates, Oklahoma City, Oklahoma, for Amicus Curiae State Chamber of Oklahoma. PER CURIAM Facts & Procedural History ¶1 Petitioner Cynthia Robinson worked as a Nurse's Aide for Employer Fairview Fellowship Home for Senior Citizens, and was injured on February 6, 2014.1 Petitioner requested a finding of injury to her neck, left shoulder, and left knee, as well as temporary total disability. Employer admitted that she was an employee on the date of the accident but denied that her injury arose out of and in the course of her employment under 85A O.S. Supp. 2013 § 2(13). Petitioner argued that if her injury was not compensable, then § 2(13) was an unconstitutional special law and unconstitutionally denied her a remedy for her injury. ¶2 The ALJ found Petitioner's injury was not in the course and scope of employment, and thus, not compensable. The ALJ declined to address Petitioner's constitutional arguments stating: "The Workers' Compensation Commission is an administrative agency rather than a court and is without power to decide the Claimant's Constitutional arguments that this statute does not provide an adequate remedy under the Administrative Workers' Compensation Act."2 The ALJ cited as authority Dow Jones & Co., Inc. v. State ex rel. Oklahoma Tax Commission, 1990 OK 6, 787 P.2d 843. ¶3 Petitioner appealed to the Workers' Compensation Commission, and the Commission affirmed the decision of the ALJ, stating that "claims that legislation is unconstitutional cannot be determined by law or this Commission en Banc. Those claims can only be decided by a court of competent jurisdiction."3 Petitioner again appealed, and in an unpublished decision, the Court of Civil Appeals affirmed. Although the court found that Petitioner had "preserved [her] constitutionality argument before the [Workers' Compensation Commission]," the court declined to address such constitutional arguments and suggested Petitioner "seek a declaration in district court regarding the statute's constitutionality." Petitioner Robinson petitioned this Court for certiorari review of the COCA opinion, specifically on the issue of whether this Court and COCA have the jurisdiction to decide the constitutionality of the provisions of Title 85A "even though the Workers' Compensation Commission, as an executive administrative agency, does not have such authority."4 ¶4 After Petitioner filed her Petition for Certiorari in this Court, the Attorney General filed notice of his intent to provide his views concerning the authority of the Workers' Compensation Commission to address constitutional issues and the ability of the courts to review those decisions. On January 13, 2016, this Court invited the Attorney General to file his brief on such issues, and the parties were given ten days to respond to the Attorney General's filing. The Attorney General filed his brief on the issues on February 10, 2016, arguing that the Workers' Compensation Commission has the authority to address the constitutionality of a statute as it is being applied in an individual proceeding, subject to judicial review by this Court. Neither party tendered a response to the Attorney General's brief. On February 29, 2016, this Court granted Petitioner Robinson's Petition for Certiorari. The Workers' Compensation Commission Has the Power to Determine Whether a Provision of Title 85A is Being Unconstitutionally Applied to a Particular Party in a Commission Proceeding ¶ 5 The Oklahoma Administrative Workers' Compensation Act creates the Workers' Compensation Commission, which is "an executive agency of the State of Oklahoma . . . ." 85A O.S. Supp. 2013 § 19(A). Limits on the authority of an executive administrative agency to resolve constitutional questions--the question before us in this case--are based upon the constitutional principle of separation of powers. Article 4, § 1 of the Oklahoma Constitution provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.5 Article 7, §1 goes on to provide: § 1. Courts in which judicial power vested. The judicial power of this State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. . . .6 ¶6 Adjudicative authority--the "authority to hear and determine forensic disputes"--"is the exclusive domain of the judiciary."7 Consistent with Art. 7, § 1, this Court has on numerous occasions held that "[w]hen an administrative board acts in an adjudicative capacity, it functions much like a court."8 Such proceedings are quasi-judicial in nature--a "term applied to the action of public administrative officers or boards which investigate facts or ascertain the existence of facts; draw conclusions from them as a basis for official action; and exercise discretion of a judicial nature in connection with and incidental to the administration of matters entrusted to or assigned to the officers or board."9 ¶7 Under Art. 7, § 1, the Commission, as a Commission "established by statute," may "exercise adjudicative authority or render decisions in individual proceedings."10 Pursuant to such, under the AWCA, the Commission and its ALJs have the power "to hear and determine claims for compensation and to conduct hearings and investigations and to make such judgments, decisions, and determinations as may be required by any rule or judgment of the Commission" or as "authorized by law." 85A O.S. Supp. 2013 § 22(C-D). Section 72(A)(4) provides that "[a]dministrative law judges are required to make specific, on-the-record findings of ultimate facts responsive to the issues shaped by the evidence as well as conclusions of law on which its judgment is to be rested." 85A O.S. Supp. 2013 § 72(A)(4) (emphasis added). Section 27(A) of Title 85A provides: A. The Workers' Compensation Commission shall be vested with jurisdiction over all claims filed pursuant to the Administrative Workers' Compensation Act. All claims so filed shall be heard by the administrative law judge sitting without a jury. The Commission shall have full power and authority to determine all questions in relation to claims for compensation under the provisions of the Administrative Workers' Compensation Act. The Commission, upon application of either party, shall order a hearing. Upon a hearing, either party may present evidence and be represented by counsel. Except as provided in this act, the decision of the administrative law judge shall be final as to all questions of fact and law. The decision of the administrative law judge shall be issued within thirty (30) days following the submission of the case by the parties. The power and jurisdiction of the Commission over each case shall be continuing and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto if, in its opinion, it may be justified.11 ¶8 The above-highlighted language mirrors statutory language contained in Oklahoma's first "Workmens Compensation Law" enacted in 1915 and administered by the State Industrial Commission. The State Industrial Commission was also given "full power and authority to determine all questions in relation to the payment of claims for compensation under the provisions of this Act,"12 and an award or order of the Commission was final as to questions of fact and all questions of law not appealed to the Oklahoma Supreme Court.13 Although not a court of record,14 the State Industrial Commission was an "administrative fact finding board with certain judicial powers [and] a quasi judicial body"15 "clothed with certain judicial authority."16 ¶9 The "full power and authority to determine all questions in relation to claims for compensation" necessarily includes questions of law.17 A question of law includes a constitutional question raised by the interpretation and application of a particular workers' compensation statute to a particular party.18 Thus, the Commission or its ALJs when exercising adjudicative authority may properly refuse to apply a statute to a particular party before it, if the Commission or its ALJs find that such application would be repugnant to the Constitution. To hold otherwise would force parties before the Commission to immediately appeal a decision of the Commission before a final adjudication of the claim on the merits.19 In addition, Petitioners are forced to carry the additional financial burden of filing fees, costs of transcripts, preparation of the record, attorney fees, and the costs of legal representation, only to have this Court remand the case to the Commission to decide a question it could have decided in the first instance. This is not the "'prompt, certain, and inexpensive'" remedy envisioned by the adoption of the workers' compensation system as a result of the industrial bargain. Adams v. Iten Biscuit Co., 1917 OK 47, ¶ 16, 162 P. 938, 944 (quoting Jensen v. S. Pac. Co., 109 N.E. 600, 603 (N.Y. 1915)). ¶10 "The benefit from having the administrative process initially address a constitutional issue among other issues within the agency's purview is that the process may result in fact-finding or interpretation and application of statutory processes that may obviate the need to adjudicate a constitutional question." N.J. Dep't of Envtl. Prot. v. Huber, 63 A.3d 197, 218 (N.J. 2013). This Court does not generally, in the exercise of our appellate jurisdiction, "make first instance determinations on disputed questions of fact or law."20 "'A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established.'" In re Fichera v. City of New York, 145 A.D.2d 482, 484 (N.Y. App. Div. 2d 1988) (emphasis added) (citing Matter of Dozier v. New York City, 130 A.D.2d 128, 135 (N.Y. App. Div. 2d 1987)). ¶11 The Court of Civil Appeals' suggestion that Petitioner file a declaratory judgment action in the district court is contrary to the AWCA, which specifically provides that "[a]ll appeals or disputes arising from actions of the Commission shall be governed by provisions of this act and the Commission shall not be subject to the provisions of the Oklahoma Administrative Procedures Act, except as provided in this act." 85A O.S. Supp. 2013 § 19(F). Thus, 75 O.S. 2011 § 307, which allows for the filing a Petition for Declaratory Review in the district court under the Administrative Procedures Act, does not apply to cases pending before the Workers' Compensation Commission. In fact, the exclusive remedy provision of 85A O.S. Supp. 2013 § 5 specifically bars injured workers from pursuing relief in the district court. Thus, we conclude that the Workers' Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission.21 A Decision of the Workers' Compensation Commission is Subject to Review by this Court ¶12 Of course, the power of the Commission and its ALJs to determine the constitutionality of a provision of Title 85A is limited. Although the Commission, when acting in an adjudicative capacity functions much like a court, the Commission is an executive branch agency lacking the full power of the judiciary.22 Article 7, § 1 grants the Commission only that judicial power necessary to "render decisions in individual proceedings," meaning the Commission only has the power to resolve, on a case-by-case basis, questions regarding the constitutional or unconstitutional application of a statute to a particular party in a proceeding before it, and the Commission's decision is binding only on the parties in that case.23 The Legislature may not confer upon the Commission the power to determine the facial constitutionality of a statute, and the Commission may not assume that power--such power resides in the judiciary alone.24 ¶13 The Commission may not issue decisions that conflict with the rulings of this Court, and the Commission's decisions are subject to review by this Court. This Court is the ultimate authority on the interpretation of the laws of this State,25 and in addition to our constitutional authority to review a decision of the Commission, we are also statutorily tasked with reviewing a "judgment, decision or award of the Commission." 85A O.S. Supp. 2013 § 78(C). Finally, the Workers' Compensation Commission may only address issues that arise in claims within their jurisdiction and that involve the application of the Workers' Compensation Act. Under Title 85A, the Commission has the "exclusive responsibility and duty to carry out the provisions of this act." 85A O.S. Supp. 2013 § 19(A) (emphasis added). ¶14 The Court of Civil Appeals clearly has the power to review a decision of the Commission when such a case has been properly and timely appealed to this Court and assigned to the Court of Civil Appeals by this Court.26 In addition, just as this Court has a duty to review the constitutionality of a challenged legislative enactment when presented with a justiciable case or controversy, so too does the Court of Civil Appeals.27 Conclusion ¶15 We conclude that the Workers' Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission.28 The Court of Civil Appeals' opinion in this case is vacated. The Commission's decision in this case is vacated and the cause is reversed and remanded for a new hearing before the assigned ALJ. COURT OF CIVIL APPEALS' OPINION VACATED; WORKERS' COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ¶16 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert and Gurich, JJ., concur. ¶17 Winchester and Taylor, JJ., concur in result. FOOTNOTES 1 Petitioner Robinson was on her lunch break when she slipped and fell on an icy sidewalk located approximately five feet from the exit of her Employer's business. She injured her neck, left shoulder, and left knee in the accident. Transcript of Hearing at 6-7. We do not address in this opinion whether the ALJ correctly interpreted 85A O.S. Supp. 2013 § 2(13) in determining that Petitioner was not in the course and scope of her employment when she fell. 2 Record on Appeal at 11. 3 Transcript of Appeal Before the Commissioners at 3. 4 Petition for Certiorari at 3. 5 Okla. Const. art. 4, § 1 (emphasis added). 6 Okla. Const. art. 7, § 1 (emphasis added). 7 Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13 & n.30, 130 P.3d 213, 220 & n.30. 8 Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, ¶ 15, 270 P.3d 133, 137; see also Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶¶ 7-8, 732 P.2d 438, 441-42. Although the Oklahoma Constitution forbids encroachment by one department upon the powers or functions of another, this Court has also recognized that there "can be blending of the three powers of government and that it is not always possible to contain the three branches of government into 'water tight compartments'. This blending of powers is especially prevalent in the area of administrative law where administrative agencies and officials, in exercising the powers delegated to them, typically exercise all three types of powers and are responsive to some degree of control by each of the constitutional departments." In re Okla. Dep't of Trans. for Apprvoal of Not to Exceed $100 Million Okla. Dep't of Trans. Grant Anticipation Notes, Series 2002, 2002 OK 74, ¶ 10, 64 P.3d 546, 550 (emphasis added) (internal citations omitted). 9 Jackson v. Indep. Sch. Dist. No. 16 of Payne Cnty., 1982 OK 74, n.20, 648 P.2d 26, 31 n.20 (emphasis added). 10 Okla. Const. art. 7, § 1. 11 85A O.S. Supp. 2013 § 27(A) (emphasis added). 12 1915 Okla. Sess. Laws 480. 13 1915 Okla. Sess. Laws at 481. Such statutory language has remained in the workers' compensation statutes since 1915. See 85 O.S. 2011 § 303(J) ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Code. . . . Except as provided in Section 340 of this title, the decision of the Court shall be final as to all questions of fact and law."); 85 O.S. Supp. 2010 § 26(B) ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law."); 85 O.S. 2001 § 26(B) ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law."); 85 O.S. Supp. 1994 § 26(B) ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Act. . . . The decisions of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law."); 85 O.S. Supp. 1986 § 26(B) ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Act. . . . The decision of the Court shall be final as to all question of fact, and except as provided in Section 3.6 of this title, as to all questions of law."); 85 O.S. Supp. 1977 § 26 ("The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers' Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 10 of the Workers' Compensation Act, as to all questions of law."); 1923 Okla. Sess. Laws 125 ("The Commission shall have full power and authority to determine all question in relation to payment of claims for compensation under the provisions of this Act. . . . The decision of the Commission shall be final as to all question of fact, and except as provided in Section 7297, of this Article, as to all questions of law."); 1919 Okla. Sess. Laws 21 ("The commission shall have full power and authority to determine all question in relation to the payment of claims for compensation under the provisions of this Act. . . . The decision of the Commission shall be final as to all questions of fact, and except as provided in Section 13 of this Article as to all questions of law."). 14 In 1959, the State Industrial Commission was "officially named and designated the State Industrial Court" and "designated and confirmed as a court of record, with respect to any matter within the limits of its jurisdiction" and judges of the States Industrial Court were given "the powers and prerogatives of the judges of the other courts of record of this state." 1959 Okla. Sess. Laws 397-98. The State Industrial Court was renamed the Workers' Compensation Court in 1977. 85 O.S. Supp. 1977 § 2. It remained so named until it was again renamed the Court of Existing Claims with the passage of the AWCA in 2013. 85A O.S. Supp. 2013 § 400. 15 Special Indem. Fund v. Quinalty, 1949 OK 17, ¶ 5, 203 P.2d 713, 714. 16 Special Indem. Fund v. Prewitt, 1948 OK 104, ¶ 10, 205 P.2d 306, 311. 17 See 85A O.S. Supp. 2013 § 27(A) (emphasis added). 18 The State Industrial Commission frequently determined questions of law including, for example, whether it had jurisdiction to enter a decision in a particular proceeding. See, e.g., M.V. Stilwell Trucking Contractor v. Patterson, 1939 OK 217, ¶ 13, 89 P.2d 766, 768 (determining whether employment was hazardous was a jurisdictional question to be "inquired into by the Industrial Commission"); J.E. Mabee, Inc. v. Singleton, 1932 OK 802, 17 P.2d 438 (determining whether a settlement award could be set aside for fraud was properly within the Commission's jurisdiction to reopen a case). 19 "Settled case law defines a reviewable decision in a compensation case as one which 'makes or denies an award' or otherwise constitutes 'a final determination of the rights of the parties.'" Hermetics Switch, Inc. v. Sales, 1982 OK 12, ¶ 3, 640 P.2d 963, 965. Although the award in this case was technically appealable because the ALJ denied compensation after he determined Petitioner's injury did not fall within the statutorily defined "course and scope of employment," such a determination did not end the inquiry. The ALJ's analysis should have included a determination of whether the application of such statute unconstitutionally denied Petitioner benefits--a determination specifically requested by Petitioner. Only after such a determination was the decision a "final determination of the rights of the parties" and subject to appellate review. 20 Okla. Pub. Emps. Ass'n v. Okla. Dep't of Cent. Servs., 2002 OK 71, ¶ 21, 55 P.3d 1072, 1081. 21 As the Attorney General points out, the "Oklahoma Constitution requires all state officials 'to solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma.'" Brief of the Attorney General at 11. Requiring the Commission or its ALJs to administer a statute even when, as a matter of law, the statute is being unconstitutionally applied requires the Commissioners and the ALJs to knowingly violate their oath of office as well as the rights of at least one of the parties. Id. at 12. 22 See Okla. Const. art. 4, § 1. The executive branch is "invested primarily with the function of executing the law," enforcing the law, or appointing agents charged with the duty of enforcing the law. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 12 & n.34, 163 P.3d 512, 521 & n.34. 23 Okla. Const. art. 7, § 1. In addition, "finding a statute or regulation unconstitutional as applied to a specific party does not affect the facial validity of that provision." Travelscape, L.L.C. v. S.C. Dep't of Revenue, 705 S.E.2d 28, 39 (S.C. 2011). See also Tulsa Cnty. Deputy Sheriff's Fraternal Order of Police, Lodge No. 188 v. Bd. of Cnty. Comm'r of Tulsa Cnty, 2000 OK 2, 995 P.2d 1124 (Opala, J., dissenting ¶¶ 9-10 (citing St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶ 10, 782 P.2d 915, 917; State ex rel. Tharel v. Bd. of Comm'rs of Creek Cnty., 1940 OK 468, syl. 1, 107 P.2d 542, 544 syl. 1; Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995)). 24 See Okla. Const. art. 4, § 1. 25 Okla. Const. art. 7, § 4. Cline v. Okla. Coal. for Reprod. Justice, 2013 OK 93, n.7, 313 P.3d 253, 257 n.7 ("The Supreme Court of Oklahoma 'alone has the power to authoritatively determine the validity or invalidity of a statute.'") (quoting State ex rel. York v. Turpen, 1984 OK 26, ¶ 10, 681 P.2d 763, 767); see also Thrarel, 1940 OK 468, ¶ 8, 107 P.2d at 547. 26 Article 7, § 5 provides that "[t]he jurisdiction, powers, duties and procedures of intermediate appellate courts shall be as provided by rules of the Supreme Court until otherwise provided by statute." Okla. Const. art. 7, § 5. Section 30.1 of Title 20 provides that the Court of Civil Appeals "shall have the power to determine or otherwise dispose of any cases that are assigned to it by the Supreme Court. Its decisions, when final, shall neither be appealable to the Supreme Court nor be subject to reexamination by another division of the Court of Civil Appeals or by the Judges of that Court sitting en banc" except that "[a] decision of the Court of Civil Appeals may be reviewed by the Supreme Court if a majority of its Justices direct that a writ of certiorari be granted, and the Supreme Court may, by order, recall a case from the Court of Civil Appeals." 20 O.S. 2011 § 30.1. 27 See Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924, 925. The Court of Civil Appeals' determination in this case that it could not "address the constitutionality issued raised by Claimant" was error. We note that at least two other divisions of the Court of Civil Appeals have addressed the constitutionality of 85A O.S. Supp. 2013 § 2(13), the same provision of Title 85A at issue in this case. See Morse v. Custom Facility Servs. et al., Case No. 113,759 (Sept. 11, 2015) (Division I) (unpublished) (holding that 85A O.S. Supp. 2013 § 2(13) was not an unconstitutional special law within the meaning of Art. 5, § 46 of the Oklahoma Constitution); Pina v. Am. Piping Inspection Inc. et al., Case No. 113,899 (Sept. 17, 2015) (Division IV) (unpublished) (holding that 85A O.S. Supp. 2013 § 2(13) did not violate Art. 2, § 6 of the Oklahoma Constitution). Certiorari review was granted in Pina, Case No. 113,899, on February 22, 2016, and the case is now pending before this Court. 28 The Attorney General asks us to overrule Dow Jones, 1990 OK 6, 787 P.2d 843. We need not reach that issue today as that case specifically involved the power of the Oklahoma Tax Commission to declare a statute unconstitutional, and that issue is not before us.

66aa1634-5f4c-4fbe-a9c7-149c5ee40262

Dept. of Human Svcs v. Bruce

oklahoma

Oklahoma Supreme Court

DEPARTMENT OF HUMAN SERVICES v. BRUCE2016 OK 43Case Number: 112070Decided: 04/19/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DEPARTMENT OF HUMAN SERVICES and COMPSOURCE OKLAHOMA, Petitioners, v. NANCY V. BRUCE and THE WORKERS' COMPENSATION COURT, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COURT ¶0 Claimant Nancy Bruce injured her neck on the job on May 14, 2012, and sought workers' compensation benefits. Although her Employer admitted the injury, the trial court denied compensability finding Claimant's employment was not the major cause of her injury. Claimant appealed, and a three-judge panel reversed and found that Claimant's employment was the major cause of the injury to her neck. Employer appealed, and the Court of Civil Appeals reversed the order of the three-judge panel. Upon review, we hold that the three-judge panel's decision finding Claimant's work-related injury on May 14, 2012, was the major cause of Claimant's neck injury is not against the clear weight of the evidence. COURT OF CIVIL APPEALS' OPINION VACATED; CAUSE REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF THE THREE-JUDGE PANEL FILED JULY 29, 2013 E.W. Keller, Keller, Keller & Dalton P.C., Oklahoma City, Oklahoma, for Respondent Nancy V. Bruce. Heather A. Lehman Fagan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Petitioners Department of Human Services and Compsource Oklahoma. GURICH, J. ¶1 Claimant Nancy Bruce worked as a Certified Nurse's Assistant, or "residential life staff aide," for the Oklahoma Department of Human Services for twenty-six years where her duties consisted primarily of lifting clients, cleaning them up, feeding them, and daily care. On May 14, 2012, Claimant was injured while lifting one such client. Upon attempting to lift the client, Claimant stated she felt immediate pain in her neck and a shocking and tearing sensation which shot down her left arm and into her thumb. Claimant reported the injury to her supervisor and went to the emergency room where it was recommended she follow up with a pain management doctor. Claimant then went to Dr. Cheng, who performed an examination and x-rays. Dr. Cheng also ordered an MRI of Claimant's cervical spine. The MRI indicated "severe left neuroforaminal narrowing from disc herniations at C5-6 and C6-7."1 Dr. Cheng referred her to a neurosurgeon, Dr. Pollard, who saw Claimant on June 11, 2012. Around this time, Employer's insurance carrier appointed a case manager, D.J. Smith, to Claimant's case. Although Dr. Pollard recommended a two-level anterior cervical fusion, and scheduled Claimant's surgery on four separate occasions, the case manager for Employer's insurance company refused to authorize any further treatment. ¶2 The case manager then sent Claimant to Dr. Snell of Neuroscience Specialists, who evaluated Claimant on November 1, 2012. Dr. Snell found Claimant was temporarily totally disabled and recommended a "C5-6, C6-7 ACDF with allograft bone and plating."2 Apparently still unhappy with the surgical recommendation of Dr. Snell, the insurance company then deposed Dr. Snell, wherein the attorney for the insurance company presented Dr. Snell with Claimant's testimony from a prior trial in 2006 wherein Claimant testified to having pain and numbness in her left arm. Although Dr. Snell was fully aware of Claimant's previous injuries, as reported in his evaluation of November 1, 2012, Dr. Snell stated that unless he was able to reexamine Claimant, he could no longer say with a reasonable degree of medical certainty that the major cause of Claimant's injury was the May 14, 2012 injury. ¶3 On February 7, 2013, Dr. Snell reevaluated Claimant. Dr. Snell specifically asked Claimant about her previous testimony regarding her left arm pain. Dr. Snell's report from the February 7, 2013 evaluation provides: HISTORY OF PRESENT ILLNESS During the deposition there were some questions about sworn testimony that she had. I questioned her about this today. She tells me that the pain that she was having at the time that she was giving sworn testimony was more of kind of an achy kind of tension pain in the arm and it was not an electric shock kind of pain, which is the kind of pain she had after her work related injury. She also said that the chiropractic had given her significant improvement, and although she did not have complete resolution [sic] there were definitely times between 2009 and her work injury in 2012 where she had potentially months of improvement to the point where she was not really having much arm pain. She said that her chiropractic visit frequency decreased significantly because of that associated improvement. . . . . CAUSATION She reports to me she had problems with her neck really ever since 9-10 years ago. She also reports that she had some problems with some pain in the left arm which was more kind of a stretching tension kind of pain and that the chiropractic had significantly helped her with this to the point where she had several periods where she had months where she was not really having any arm pain prior to her work-related injury. She reports that after the 05/14/12 work related injury she started having electric shock type pain in the left arm, which was a new pain she had not experienced before. As such, it would appear that her work-related injury resulted in her symptomatic onset of this electric shock type pain going down the left arm. Certainly, it appears that she has had problems with left arm pain in the past, as noted above. Per her report today, the quality of her left arm pain changed significantly to a neuropathic kind of shocking type pain. It would appear that the onset of the shocking type neuropathic pain was related to her work-related injury, per her report. The above opinions are based on a reasonable degree of medical certainty.3 Notably, Dr. Snell's February 7, 2013 evaluation also states: "I had recommended a C5-6, C6-7 ACDF with allograft bone and plating for her at the 11/01/12 visit and I continue to recommend this. . . . She is currently TTD and I will keep her at TTD."4 ¶4 In addition to Dr. Snell's evaluation, Claimant was also evaluated by Dr. Wolf on July 30, 2012. Dr. Wolf, who was also aware of Claimant's previous complaints of pain in her neck, found as follows: The patient was involved in an on-the-job accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). It is my opinion that as a result of this on-the-job accident, the patient has sustained injury to her cervical spine. She continues to have ongoing pain and upper extremity radicular symptoms primarily on the left side, to include weakness of the left arm and weakness in grip strength along with numbness in the thumb. The patient does have significant MRI findings of internal derangement of the cervical spine. She is in need of further neurosurgical consultation. In my medical opinion, the major cause of her injury and ongoing complaints and symptomatology is the accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). She does have objective medical evidence as well as permanent anatomical abnormalities as previously set forth. After taking a history, reviewing the available medical records, and performing a physical examination I find that this patient is temporarily totally disabled from her usual occupation, secondary to this job-related injury, from May 14, 2012, and she will continue to be temporarily totally disabled until there is a resolution of her symptoms by additional testing and/or treatment or until in my medical opinion she has reached maximum medical improvement.5 ¶5 On November 19, 2012, Claimant was evaluated, at the insurance carrier's request, by Dr. Munneke. Although Dr. Munneke opined that the "patient did sustain a strain injury to her cervical spine as a result of her accident on the aforementioned date [May 14, 2012]," he concluded that the "patient's need for surgery is unrelated to her accident that occurred on the 14th of May 2012."6 Dr. Munneke found that the surgical recommendation of Dr. Snell was "related to her two prior injuries that occurred in 2003 and 2004."7 ¶6 Claimant filed a Form 3 with the Worker's Compensation Court on July 26, 2012. The trial court held a hearing on April 23, 2013, and the Employer stipulated at the hearing that Claimant was involved in a work-related "incident" on May 14, 2012, but argued that such was not the major cause of Claimant's injuries or need for surgical treatment. Employer contended that all of Claimant's complaints stemmed from work-related injuries in 2003 and 2004.8 Claimant testified at the hearing and did not deny that she had prior pain in her neck and left arm due to her earlier work-related injuries. ¶7 However, Claimant also testified, consistent with the medical reports introduced, that after the May 14, 2012 injury, the pain in the left side of her neck and down her arm consisted of a "zapping" and "electrical" sensation, which was not a symptom she experienced before the May 2012 injury. In spite of her Employer's admission of injury, the trial court, in an order filed May 6, 2013, denied compensability. Claimant appealed to a three-judge panel. The panel reversed, in an order filed July 29, 2013, and found that Claimant sustained an on-the-job injury "to the NECK (aggravation of pre-existing condition)," and that Claimant's employment was "the major cause of injury to the NECK and need for surgery."9 The three-judge panel awarded Claimant temporary total disability benefits and ordered Employer to provide Claimant with reasonable and necessary medical treatment, including surgery. Employer appealed, and the Court of Civil Appeals vacated the order of the three-judge panel and directed the Workers' Compensation Court to enter an order denying compensability. Claimant petitioned this Court for certiorari review, and we granted review on November 24, 2014. ¶8 A compensable injury under the Workers' Compensation Code means "any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. . . ." 85 O.S. 2011 § 308(10)(a). "Major cause" is defined as "more than fifty percent (50%) of the resulting injury, disease or illness." 85 O.S. 2011 § 308(28). ¶9 Although COCA cited to Dr. Snell's November 1, 2012 evaluation, and Dr. Snell's deposition testimony, COCA failed to mention the reevaluation of Claimant by Dr. Snell on February 7, 2013, wherein Dr. Snell continued to assert that Claimant's work-related injury of May 14, 2012, was the major cause of her injury and continued to recommend that Claimant have surgery. Based upon Dr. Snell's unshakable opinion, together with other credible medical evidence from treating physicians who saw Claimant on referral from Dr. Snell and objective test findings supporting Claimant's need for surgery as a result of her most recent on-the-job injury, we conclude that the three-judge panel's decision finding Claimant's work-related injury on May 14, 2012, was the major cause of Claimant's neck injury is not against the clear weight of the evidence. See 85 O.S. 2011 § 340(D); Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113. COURT OF CIVIL APPEALS' OPINION VACATED; CAUSE REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF THE THREE-JUDGE PANEL FILED JULY 29, 2013 ¶10 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert and Gurich, JJ., concur. ¶11 Winchester and Taylor, JJ., dissent. FOOTNOTES 1 Record on Appeal at 39. 2 Record on Appeal at 31. 3 Record on Appeal at 37-38. 4 Record on Appeal at 37 (emphasis added). 5 Record on Appeal at 40-41 (emphasis added). 6 Resp. Ex. 1, at 4. 7 Id. Dr. Munneke never treated the Claimant, and he was not deposed in this case. His report references certain tests conducted in 2012, the finding of disc herniations at two levels, and evidence of left median nerve entrapment at the wrist. Dr. Munneke agreed that Claimant sustained an injury on May 14, 2012, and needed surgery. He acknowledged a significant amount of treatment and objective testing after the May 14, 2012 injury. His report contains no estimate of when her two discs were herniated. There is no explanation of how she continued to work in the same job between 2004 and 2012 with disc herniations. He then states that she had a nearly normal exam in his office. Yet he paradoxically opines that her current need for surgery is related to her two prior injuries. The opinion of Dr. Snell has considerably more credibility than the opinion of Dr. Munneke. Resp. Ex. 1, at 2-4. 8 Claimant was injured on-the-job in 2003 after being hit in the head by a patient. The injury resulted in three cracked teeth and headaches due to cervical sprain/strain. Claimant filed a workers' compensation claim--WCC# 2005-00951-R--and sought dental treatment and medical treatment to her neck. The Employer conceded Claimant's compensability for dental treatment but denied her request for medical treatment to her neck due to an intervening work-related automobile accident on March 1, 2004. The court denied Claimant's request for medical treatment to her neck due to the intervening automobile accident on April 3, 2006. Claimant did not appeal that order. With regard to the work-related automobile accident on March 1, 2004, Claimant filed a separate workers' compensation case--WCC# 2004-3458-Y. The case was settled by Joint Petition on December 22, 2004. The Joint Petition found Claimant sustained accidental personal injury arising out of and in the course of her employment to her right leg, left leg, and all body parts known or unknown. In June of 2010, Claimant sought to reopen the WCC# 2005-00951-R (the 2003 injury) based on change of condition for the worse to her neck. The Workers' Compensation Court reopened the case and authorized medical treatment to Claimant's neck. However, the Court of Civil Appeals reversed and found that the trial court had previously determined that the automobile accident was the intervening cause of the neck injury. Thus, COCA held that "because the second work-related accident broke the causal nexus to the original injury, any/all necessary treatment to Claimant's neck is attributable to that second accident alone. A finding that the motor vehicle accident constitutes the intervening cause of the neck injury is tantamount to a finding that the neck injury is not connected to the original 2003 workplace injury." Okla. Dep't of Human Servs. v. Nancy Bruce et al., Case No. 109,804, at 7 (Nov. 30, 2012) (unpublished). Claimant did not petition this Court for certiorari review of that opinion, and mandate issued on January 15, 2013. 9 Record on Appeal at 48-49.

71b1fa82-31c0-49e4-878c-c4e0ed0f4bd7

American Biomedical Group, Inc. v. Techtrol, Inc.

oklahoma

Oklahoma Supreme Court

AMERICAN BIOMEDICAL GROUP, INC. v. TECHTROL, INC.2016 OK 55Case Number: 113978Decided: 05/17/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.   AMERICAN BIOMEDICAL GROUP, INC.; ABG CATTLETRAQ, LLC; and JAMES BURGESS, Plaintiffs/Appellants, v. TECHTROL, INC. and WILLIAM ARDREY, Defendants/Appellees. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Plaintiffs brought claims for conversion of personal and intellectual property and for unjust enrichment. Defendants sought partial summary adjudication on the two claims, urging that Oklahoma does not recognize a tort for misappropriation of intangible property not rising to the level of trade secret and that Plaintiffs had an adequate remedy at law preventing them from bringing a claim for unjust enrichment. The district court rendered partial summary adjudication on the two claims in Defendants' favor. The Court of Civil Appeals affirmed, finding that pursuant to Section 92, the Oklahoma Uniform Trade Secrets Act , 78 O.S.2011, § 92, displaced Plaintiffs' common-law claims. This Court granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Murray E. Abowitz, Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, Oklahoma, for Appellants. James W. Tilly, The Tilly Law Firm, Tulsa, Oklahoma, for the Appellees. TAYLOR, J., ¶1 The question before this Court is whether Defendants supported their motion for summary judgment with undisputed, material facts sufficient to warrant the district court granting partial summary adjudication in their favor. We answer in the negative. I. STANDARD OF REVIEW ¶2 Partial summary adjudication, like summary judgment, settles only questions of law. See Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082.The standard of review of questions of law is de novo. Id. Summary judgment or a partial summary adjudication will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that one party is entitled to judgment as a matter of law. See id. A partial summary adjudication will be reversed if the appellate court determines that reasonable people might reach different conclusions from the undisputed material facts. See Runyon v. Reid, 1973 OK 25, ¶15, 510 P.2d 943, 946. ¶3 Under this standard, we confine our review to the limited, undisputed, material facts. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 6, 698 P.2d 17, 20 ("The ruling on a motion for summary judgment must be rested on the record which is then before the court rather than on one that could have been assembled."). We do not consider Defendants' factual allegations included in their appellate paperwork which they failed to include as undisputed, material facts or support with evidentiary materials in the district court. See id. II. RELEVANT PROCEDURAL HISTORY ¶4 This legal battle began in 2006 when American Biomedical Group, Inc. (ABGI) and ABG Cattletraq, LLC (Cattletraq) filed a petition in the district court against Techtrol, Inc. and William Ardrey (Defendants); Defendants then filed a counterclaim. ABGI and Cattletraq dismissed their claims and causes of action against Defendants (without prejudice), leaving Defendants' counterclaim pending. Two years later, Defendants filed a petition in the same court against ABGI, Cattletraq, and James Burgess, their sole shareholder and CEO (Plaintiffs). ¶5 On March 16, 2009, Plaintiffs filed another petition in the district court, alleging that Defendants "wrongfully exercised dominion and control over plaintiffs' personal and intellectual property" and "willfully, deliberately and maliciously converted plaintiffs' personal and intellectual property" for their own benefit. Plaintiffs sought damages based on Defendants' unjust enrichment from the conversion. The district court consolidated the three cases. When the cases were consolidated, Defendants' counterclaim, Defendants' petition alleging abuse of process, and Plaintiffs' petition alleging causes of action for conversion and unjust enrichment remained pending before the district court. ¶6 On October 29, 2014, Defendants moved for summary judgment on Plaintiffs' claim for conversion, asserting that Oklahoma does not recognize a tort for conversion of intangible property, and for unjust enrichment, asserting Plaintiffs' claim was precluded because they had an adequate remedy at law for breach of contract. The statement of undisputed, material facts in Defendants' motion for summary judgment listed the pleadings filed and an excerpt from a deposition.1 The only undisputed, material facts alleged by Defendants were (1) Plaintiffs filed a claim for the willfull, deliberate, and malicious conversion of their personal and intellectual property and a claim for unjust enrichment caused by the conversion, and (2) part of Plaintiffs' claims are based on a nondisclosure agreement (NDA). Plaintiffs' response admits the excerpt is from a deposition and alleges twenty-one additional facts, with supporting evidentiary materials, that they contend may or may not be disputed and preclude summary judgment in Defendants' favor. Plaintiffs urged that (1) Oklahoma does recognize a cause of action for conversion of both personal and intellectual property which, in this case, is not preempted by the Oklahoma Uniform Trade Secrets Act (OUTSA), 78 O.S.2011, §§ 85-94, (2) they had pled facts sufficient to make a prima facie claim of misappropriation under the OUTSA, and (3) they do not have an adequate remedy at law which would bar their claim for unjust enrichment. ¶7 Defendants and Plaintiffs each filed an additional brief, somewhat altering their arguments. Defendants submitted that the OUTSA preempts Plaintiffs' conversion and unjust enrichment claims, that Plaintiffs admitted that they had no contractual remedy under the NDA, and that Plaintiffs' admitted failure to identify its intellectual and personal property as confidential under the NDA barred relief under the OUTSA. Plaintiffs again contended that their claim for conversion of confidential, proprietary information is not displaced by the OUTSA. After the district court held a hearing, it granted Defendants' motion for summary judgment.2 ¶8 Plaintiffs filed a petition in error, and the appeal was assigned to the Court of Civil Appeals. The Court of Civil Appeals affirmed the district court. This Court granted Plaintiffs' petition for certiorari review. This Court ordered the parties to file briefs addressing only the issues before this Court.   III. ALLEGED FACTS ¶9 These alleged facts are informational to help clarify the dispute before this Court. Because the record does not show that these facts are undisputed, we do not rely on them in rendering our decision.3 Plaintiffs contend that they developed a protocol to monitor and track cattle and a bolus containing technology to accomplish this task. In October of 2004, the parties entered into an oral agreement for Defendants to manufacture the bolus to Plaintiffs' specifications. About a month later, the parties entered into the written NDA. The NDA is part of the record and contains the following provision. Subject to the limitations set forth in Section 2, all information disclosed by one party (the "Discloser") to the other party (the "Recipient"), which is labeled or marked "Confidential" or with some other similar proprietary legend shall be deemed to be "Confidential Information." If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and thereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure. The NDA restricts the disclosure and use of confidential information, as defined above, including the restriction that the recipient shall "use such Confidential Information only to the extent required to accomplish the Purpose." The purpose was defined as "the purpose and evaluation and possible joint operations." After the parties entered into the NDA, Plaintiffs supplied Defendants with what they contend is confidential, proprietary information, including software, circuitry for biometric data, specifications, documents, drawings, chips, and thermistors, as well as tangible property. ¶10 After they entered into the NDA, the parties ended their business relationship. Since then, Defendants have manufactured and sold about 1,500 of the boluses. Plaintiffs alleged that at least some of the information Defendants used to manufacture and sell the boluses was Plaintiffs' confidential, proprietary information and tangible property not subject to the NDA. IV. ANALYSIS ¶11 Based on the parties' briefs on the issues before this Court, we determine the legal issues to be (1) whether Oklahoma recognizes a common-law action for misappropriation of intangible, proprietary property, (2) if so, whether the OUTSA displaces Plaintiffs' common-law claims, (3) whether information disclosed to Defendants by Plaintiffs without the "confidential" marking required by the NDA is subject to a common-law claim for conversion, (4) whether Plaintiffs have an adequate remedy at law which bars their claim for unjust enrichment, and (5) if this Court finds the OUTSA displaces Plaintiffs' common-law claims, whether the decision should be applied prospectively only.4 A. Common-law Claims ¶12 Conversion is defined by Oklahoma law as "any act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." Steenbergen v. First Fed. Sav. & Loan of Chickasha, 1987 OK 122, ¶ 9, 753 P.2d 1330, 1332. This definition does not include intangible property. It does require that "some form of wrongful possession or act of control over the property must occur." Installment Fin. Corp. v. Hudiburg Chevrolet, Inc., 1990 OK 55, ¶ 10, 794 P.2d 751, 753. It is not necessary that the property wrongfully came into a party's possession, but only that the property was taken or appropriated without the owner's consent. Fed. Nat'l Bank of Shawnee v. Lindsey, 1935 OK 455, ¶ 12, 43 P.2d 1036, 1037; Steenbergen, 1987 OK 122, ¶ 9, 753 P.2d at 1332. Conversion of personal property does not require the property be obtained by wrongful means, but it must be either obtained or appropriated without the owner's consent. Id. Here, Defendants have failed to provide evidentiary support or even aver that they appropriated Plaintiffs' personal property without the Plaintiffs' permission, and Plaintiffs have not admitted this fact. Thus, partial summary adjudication in Defendants' favor was improper on this issue. ¶13 Oklahoma does not recognize the tort of conversion of intangible property in the same manner as it does for personal property. Shebester v. Triple Crown Insurers, 1992 OK 20, ¶ 14, 826 P.2d 603, 608 ("The general rule in Oklahoma is that only tangible personal property may be converted."). However, Oklahoma has recognized the tort of misappropriation of business information, an intangible, as stated in ABC Coating Co. v. J. Harris & Sons Ltd., 1986 OK 28, ¶ 20, 747 P.2d 266, 270: One who, for the purpose of advancing a rival business interest, procures by improper means information about another's business is liable to the other for the harm caused by his possession, disclosure or use of the information. Id. (quoting the Restatement (First) of Torts, § 759 ("Procuring Information by Improper Means")). Under Section 759, improper means include, not only "theft, trespass, brib[ery], fraudulent misrepresentation, threats of harm by unlawful conduct," etc., but also "breach of contract, abuse of confidence or impropriety in the means of procurement." Id. (referencing Restatement (First) of Torts, § 757, Comment on Clause (a)). ¶14 The comment to the Restatement (First) of Torts, Section 757 explains that one who receives information that does not meet the definition of a trade secret and who is in a confidential relationship or obtains the information through improper means may be liable. The liability is based on the abuse of confidence or the impropriety in learning the secret, making wrongful procurement of the information a necessary element of misappropriation of confidential information, whether or not it rises to the level of trade secret. ABC Coating Co., 1986 OK 28, ¶ 22, 747 P.2d at 270. ¶15 Oklahoma recognized the common-law tort of misappropriation of confidential business information in Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 17, 537 P.2d 330, 333. Central Plastics treated trade secrets and confidential information as different forms of a business property and recognized that both have a substantial element of secrecy. Id. (citing Aetna Bldg. Maint. Co. v. West, 246 P.2d 11 (Cal. 1952)) ("Trade secrets and confidential information, in order to be protected against disclosure by employees, must be the particular secrets of the employer as distinguished from the general secrets of the trade in which he is engaged."). In order to be protected, the property "must be the particular" owner's secrets, even though the owner may disclose it to others who are legally obligated to protect it, and not just secrets of the trade. Id. In Central Plastics, because the information was not secret to the owner, there was no wrongdoing in the procurement. Id. ¶16 In ABC Coating Co., the plaintiff, a company in the steel-rebar coating business, alleged that the defendant company fraudulently obtained the plaintiff's trade secret and confidential business information and disclosed it to others.1986 OK 28, ¶ 22,747 P.2d at 270. The jury returned a verdict on the fraud issue in favor of the defendant. Id. The plaintiff, having failed to prove the element of procurement by improper means, was not entitled to recover. Id. It made no difference to the ABC Coating Court whether the plaintiff's coating process was a trade secret or confidential information. Id. ¶ 23, 747 P.2d at 271. As with ABC Coating, the cases on which Defendants rely can be viewed as there was no cause of action if the information was not confidential or, if the information was confidential, it was not wrongfully procured. ¶17 Plaintiffs contend that only information marked confidential is subject to the NDA. Therefore, Plaintiffs submit that any information given to Defendants which was not marked as confidential is not subject to the NDA, Defendants' use of unmarked information cannot be brought as a breach of contract, and the information is subject to a claim for conversion. The NDA is subject to our laws governing contracts. A contract's terms are to be given their plain meaning. 15 O.S. 2011, § 160; Lucas v. Bishop, 1998 OK 16, ¶ 11, 956 P.2d 871, 874. The NDA explicitly requires that any informational disclosures be marked "confidential" and, if orally disclosed, it be identified as confidential and a summary of the information be sent within thirty days of disclosure. The NDA limited a recipient's use of the information properly identified as confidential. The NDA clearly expresses the parties' intent that only the use of information properly marked or identified as confidential be restricted. It does not address the use of intangibles which may not be information or the use of tangibles. ¶18 The NDA controls the parties' use of information, whether or not marked confidential. Plaintiffs cannot benefit from their own failure to comply with the NDA and mark information as confidential before sharing it with Defendants since the Defendants' procurement of the information would not be wrongful. However, the NDA does not control use of intangibles which are not information nor does it control use of tangibles. Nonetheless, Defendants' quest for summary judgment must fail because they have failed to support their argument with undisputed facts backed by evidentiary materials.5   B. Preemption   ¶19 Defendants urge that it matters not whether Oklahoma recognizes a common-law tort for misappropriation of property not meeting the definition of trade secret because this cause of action is displaced by the OUTSA. The OUTSA defines trade secret as information, including a formula, pattern, compilation, program, device, method, technique or process, that: a. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and b. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 78 O.S.2011, § 86(4). The OUTSA affords protection for trade secrets and consequences for their misappropriation. Id. §§ 87-89. These include (1) injunctions, id. § 87, (2) damages of actual loss and for unjust enrichment or damages of a reasonable royalty, id. § 88, (3) exemplary damages of twice the amount of actual damages if the misappropriation is willful and malicious, id. § 88, and (4) in certain cases, an award of attorney's fees. Id. § 89. ¶20 The OUTSA's exemptions found in Section 92 are the crux of this issue. Section 92 provides: A. Except as provided for in subsection B of this section, the Uniform Trade Secrets Act displaces conflicting tort, restitutionary, and other laws of this state providing civil remedies for misappropriation of a trade secret. B. The Uniform Trade Secrets Act does not affect 1. contractual remedies, whether or not based upon misappropriation of a trade secret; or 2. other civil remedies that are not based upon misappropriation of a trade secret; or 3. criminal remedies, whether or not based upon misappropriation of a trade secret. ¶21 Section 92(A) calls for the OUTSA to displace this state's conflicting tort law providing civil remedies for misappropriation of a trade secret, except as provided in Section 92(B). Section 92(B) allows civil remedies for torts that are not based on misappropriation of a trade secret. Although one goal of the uniform act was to make states' trade secret laws uniform, states have not been consistent in its construction. Some courts have taken the view that similar trade secret acts create two sets of business information, one that is protected by the acts and one that has no protection either under the acts or the common-law. Mortgage Specialists, Inc. v. Davey, 904 A.2d 652, 664 (N.H. 2006). Other courts have determined that similar acts are unambiguous and, by their clear language, do not displace a common-law conversion claim of business information not meeting the definition of trade secrets. Miller UK LTD. V. Caterpillar Inc., 859 F. Supp. 2d 941, 947 (N.D. Ill. 2012). Because of the inconsistency in the uniform act's construction, we are not compelled by the uniformity goal to follow any particular jurisdiction. ¶22 In construing a statute, our goal is to determine the Oklahoma Legislature's intent, and not the intent of other state legislatures. Heldermon v. Wright, 2006 OK 86, ¶ 12, 152 P.3d 855, 859. If the legislative intent is clear from a statute's plain and unambiguous language, this Court need not resort to rules of statutory construction. Id. When a statute's language is unambiguous, its words will be given their obvious and ordinary meaning and will be followed without additional inquiry. Okla. City Zoological Trust v. State ex rel. Public Emps. Relations Bd., 2007 OK 21, ¶ 6, 158 P.3d 461, 464. ¶23 By its unambiguous language, Section 92(A) of the OUTSA displaces conflicting tort claims only for "misappropriation of a trade secret." It does not displace tort claims for information not meeting this definition. Section 92(B)(2) leaves in place torts not based on misappropriation of a trade secret. If the Legislature had intended to displace a cause of action for misappropriation of business information not falling within the statutory definition of trade secret, it could have done so. The Legislature chose not to include business information not meeting its statutory definition of trade secret in Section (92)A's displacement provision, and we are bound by the Legislature's decision. ¶24 This construction is in keeping with the intent of the uniform act. The comment to Section 7 of the UTSA (Oklahoma's Section 92), states that the uniform act "is not a comprehensive statement of civil remedies," and "does not apply to a duty imposed by law that is not dependent upon the existence of competitively significant secret information." This language indicates that the uniform act's authors did not intend the displacement provision to apply to the common-law cause of action for misappropriation of business information not rising to the level of a trade secret. ¶25 In further support of this construction, Title 12, Section 2 of the 2011 Oklahoma Statutes states: The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma . . . . Pursuant to this provision, this Court will not presume an abrogation of the common law from a statutory provision. Brashier v. Farmers Ins. Co., Inc., 1996 OK 86, ¶ 8, 925 P.2d 20, 24 (overruled in part on other grounds by Barnes v. Okla. Farm Bureau Mut. Ins. Co. 2000 OK 55, 11 P.3d 162). A statutory abrogation of the common law must be expressed in clear and plain language. Id. "Where the common law gives a remedy, and another is provided by statute, the latter is merely cumulative, unless the statute declares it to be exclusive." Id. Section 92 of the OUTSA does not clearly express that it abrogates or displaces the common law tort of misappropriation of business information not qualifying as a trade secret under the OUTSA. Quite the contrary, Section 92 and the comments thereto exempt this common-law tort from its displacement provision. ¶26 Like other alleged facts in this case, neither party has alleged facts supported by evidentiary material that show at least some, if not all of the property at issue falls outside the OUTSA's definition of trade secret.6 Because this determination is necessary to a finding that Plaintiffs' causes of action are displaced by the OUTSA, partial summary adjudication was improper as to issues based on determination of this fact. C. Unjust Enrichment ¶27 During various times during this litigation, Defendants have asserted that Plaintiffs cannot bring an unjust enrichment claim because Plaintiffs have an adequate remedy at law under the NDA or because Plaintiffs failed to mark certain property as confidential under the NDA. Unjust enrichment arises "from the failure of a party to make restitution in circumstances where it is inequitable," or one party holds property "that, in equity and good conscience, it should not be allowed to retain." Harvell v. Goodyear Tire and Rubber Co., 2006 OK 24, ¶ 18, 164 P.3d 1028, 1035. "One is not unjustly enriched, however, by retaining benefits involuntarily acquired which law and equity give him absolutely without any obligation on his part to make restitution." McBride v. Bridges, 1950 OK 25, ¶ 8, 215 P.2d 830, 833. Further, a party is not entitled to pursue a claim for unjust enrichment when it has an adequate remedy at law for breach of contract. Krug v. Helmerich & Payne, Inc., 2015 OK 74, ¶ 6, 362 P.2d 205, 209. ¶28 To the extent that Defendants can show that information was "involuntarily acquired" under the NDA with no obligation to make restitution, they are not subject to a claim for unjust enrichment. Again, they have failed to make this showing as to all the property at issue here which would entitle them to partial summary adjudication on this issue. V. CONCLUSION ¶29 Defendants failed to show that they were entitled to summary judgment. Throughout their arguments before the district court and this Court, Defendants rely on allegations which they have failed to allege as undisputed in their motion for summary judgment, which have no supporting evidentiary materials, and which Plaintiffs contest or which Plaintiffs have not admitted. ¶30 The Court of Civil Appeals' opinion is vacated. The judgment of the district court is reversed. The cause is remanded for further proceedings. COURT OF CIVIL APPEALS' OPINION VACATED; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. CONCUR: Combs, V.C.J.; and Kauger, Watt, Winchester, Edmondson, Taylor, Colbert, and Gurich, JJ. NOT PARTICIPATING: Reif, C.J. FOOTNOTES 1 Rule 13(a) of the Rules for Districts Courts of Oklahoma, 12 O.S.2011, ch. 2, app., provides in part: A party may move for either summary judgment or summary disposition of any issue on the merits on the ground that the evidentiary material filed with the motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact. The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and a statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted. Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to the motion. Unless otherwise ordered by the court, a copy of the material relied on shall be attached to or filed with the statement. (Emphasis added). 2 The district court certified the order to this Court pursuant to Title 12, Section 994 of the 2011 Oklahoma Statutes. 3 In Defendants statements of material fact, the ninth, the only one relevant here, is a quote from a James Burgess' deposition showing that Plaintiffs are pleading a cause of action for conversion of personal and intellectual property and are seeking damages for unjust enrichment. 4 Because of our resolution of the issues addressed in this opinion, we need not address other issues raised by the parties in their briefs to this Court. As the parties were directed to file briefs addressing only the issues in this appeal, we need not address those raised in the district court and not included in their briefs before this Court. 5 Defendants assert that Plaintiffs admitted in their response to summary judgment that they failed to mark certain information as confidential. We decline to read Plaintiffs' argument in their response in such broad terms as to constitute an admission. 6 Defendants argue that the OUTSA preempts claims for conversion of tangible property as well as intangible because the tangible property is intertwined with the intellectual property such that the tangible property has no separate value. Again, Defendants fail to offer any support that this allegation is true and uncontested.      

7521232e-00e8-4970-bddd-72b1fd933028

Murlin v. Pearman

oklahoma

Oklahoma Supreme Court

MURLIN v. PEARMAN2016 OK 47Case Number: 113193Decided: 04/26/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JACQUELYN TESS MURLIN, Plaintiff/Appellee, v. JIMMY LEE DIAL PEARMAN, JR., Defendant/Appellant. CERTIORARI TO COURT OF CIVIL APPEALS, DIVISION II Honorable Jequita Napoli, Trial Judge ¶0 The Plaintiff/Appellee, Jacquelyn Tess Murlin (Tess), filed a petition for a victim protection order (VPO) against her ex-boyfriend, the Defendant/Appellant, Jimmy Lee Dial Pearman, Jr. (Pearman). After text messages between the alleged victim and Pearman's ex-wife, Theresa Marie Pearman (Theresa) revealed that the VPO filing was a collaboration between the Tess and Theresa to obtain custody in a child custody dispute against Pearman, Tess withdrew the petition. Pearman sought to have the VPO filing declared frivolous, and to recover attorney fees and costs, pursuant to 22 O.S. Supp. 2013 §60.2. The trial judge denied his request. The Court of Civil Appeals affirmed. We hold that, pursuant to 22 O. S. 2013 §60.2, the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS TO AWARD ATTORNEY FEES AND COSTS. Jeffrey D. Nachimson, Oklahoma City, Oklahoma, for Plaintiff/Appellee. Christian M. Zeaman, Edmond, Oklahoma, for Defendant/Appellant. KAUGER, J. ¶1 The dispositive questions before this court are whether the plaintiff's petition for protective order, filed pursuant to 22 O.S. Supp. 2013 §60.2,1 was frivolous and victimless, and whether attorney fees and costs should have been awarded. We hold that the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded. FACTS ¶2 Jimmy Lee Pearman, Jr. and Theresa Marie Pearman filed for divorce on July 9, 2012, in the District Court of Cleveland County, Oklahoma. The decree dissolving the marriage was memorialized on June 24, 2013, however, the parties continued their litigation over matters of child custody and support of their two children. On September 12, 2014, Pearman was awarded exclusive custody of the children and Theresa was granted standard visitation. ¶3 The record reflects that Theresa met Tess, a 22 year-old college student, in early 2012, while getting a facial at a salon. The two women became friends. Theresa introduced Tess to Pearman when he helped Theresa after her car had broken down. Tess and Pearman began dating by mid-July of 2013. Tess described their relationship as one of "exclusively dating" beginning in August of 2013. According to her, this relationship caused a serious rupture in her relationship with Theresa. Text messages reflect that she had "been" with both of them. Tess and Theresa had an altercation over Tess's relationship with Pearman that was so violent that the police were called. The incident occurred in front of the children, while Tess was living with Theresa and dating Pearman. ¶4 On April 29, 2014, another event occurred at Pearman's home which is the nucleus of this appeal. The course of the evening has been described in very different terms by Pearman and Tess, although there is no testimony by him in the record. According to Tess, she was dropped off at his home by a friend after a night of drinking. The record reflects that Tess had a DUI, and a history with alcohol abuse. ¶5 According to Tess, she went into the home using a garage door opener Pearman had given her, unlocked the security system, took off her clothes except for a t-shirt and underwear, and went to sleep in one of the children's rooms. When she woke up, she went to his locked bedroom, unlocked the door with a screwdriver and walked in on him and another woman, Taylor. She says they exchanged words, that he attacked her, pushed her into the wall, shoved her face into the front door and punched her in the eye. After the incident, she stayed in his house until he took her home the next morning. The next day, she went to the Moore, Oklahoma police station and filed a report. ¶6 Text messages from Tess, and Theresa, as well as testimony from both the child custody case and this cause, suggest a different story. According to testimony and text messages, Tess was drinking in Edmond on the night in question. Throughout the entire evening she was texting Pearman, calling him over and over, wanting to come over, until it reached the point where he threatened to block her number if she did not stop. She admitted that she was intoxicated and that he never agreed for her to come to his house. According to Taylor, she and Pearman arrived at his home to find the garage open, all the lights on, a half empty bottle of vodka on the counter with a soda next to it, and Tess passed out naked in Pearman's bed. ¶7 Pearman and Taylor moved her into another bedroom to let her "sleep it off." However, she came into Pearman's bedroom twice during the night and he walked her back to the other bedroom. The third time she picked the locked door with a screwdriver, jumped on the bed, and started calling Taylor names. Tess followed Taylor into the kitchen, threw an unopened soda can at her head and then charged her. Taylor punched Tess in the face in self defense. At the trial she testified that Pearman did not hit Tess. ¶8 The record contains an extensive series of text messages between Tess and Theresa, beginning on May 3, 2014, just four days after the alleged attack in Pearman's home. Tess filed a police report complaining about his alleged assault which is not included in the record. A text message sent by Tess to Theresa states that she would not have filed a police report if it were not for the ongoing custody fight. The record does not indicate that criminal charges were ever actually filed against Pearman. ¶9 The messages imply that Theresa directed Tess to file the police report in Cleveland County, the site of the custody appeal. The messages also show that Theresa spoke with her attorney in her custody case about the filing of the Petition for Protective Order/VPO. Theresa advised Tess that the key points in filing the petition for VPO were Pearman's felony record, previous acts of domestic violence, possession of an illegal weapon and her fear. Several of the texts referenced the police report that she filed, noting that she was very intoxicated, and that she did not fully remember the incident. ¶10 The texts indicate that Tess and Theresa had rekindled their friendship with a shared goal of assisting Theresa in her custody battle against Pearman through the filing of a petition for VPO. Examples of some of the messages include: [From Tess to Theresa] "Just trying to help you. If I'm not creating anything but trouble, then it's you-all's thing and had no affect on me. Just trying to help you Theresa Marie." [From Theresa to Tess] "Custody will not include you at this point. I don't want to call you as a witness, which is why I need the VPO." Other texts show that: 1) Theresa believed that filing the VPO would be good for the custody case and that it would be good for Theresa and her girls; and 2) the VPO would be a huge break for Theresa. ¶11 On May 5, 2014, Tess filed a petition for a protective order in the District Court of Cleveland County against Pearman. She alleged that: 1) she was physically assaulted at his residence on April 29, 2014; 2) she had filed a police report with the Moore Police Department regarding the assault; 3) Pearman was a felon because of possession of an illegal firearm; and 4) he had a violent past with previous domestic abuse. ¶12 The hearing on Tess's VPO was held on May 19, 2014. At the hearing, Theresa's attorney also represented Tess without charge. Most of the hearing concerned many text messages between Theresa and Tess regarding the VPO and their friendship and sex lives. Because of concerns about attorney-client privilege, the text messages were examined by both attorneys during a recess. Pearman's attorney used the text messages to establish the motive for filing VPO as merely an attempt to affect the ex-wife's child custody case. The court recessed so that the lawyers could review the text messages together. After recess and review of the messages, the attorney for Tess stated that: You know, we could go and have a full hearing and you can decide whether a protective order is warranted. But the bottom line is there were texts from my client admitting, look, this happened, so on and so forth, but if it weren't for your custody case and your kids, I wouldn't even bother with a VPO. So, you know, with that in mind, regardless, it shows that, hey, I don't need a protective order. So I advised my client to dismiss and that's what we're going to ask the Court for. ¶13 Subsequently, the trial court granted the motion to withdraw and dismissed the case. When asked to determine the matter frivolous and award attorney fees and costs, the trial court, remarked that, while the whole matter was a soap opera, embarrassing, and absurd, the ex-husband did not show that it was frivolously filed. Consequently, the trial court refused to award attorney fees and costs. A journal entry was filed on July 18, 2014. ¶14 Theresa and Tess arrived together for the May 21, 2014, custody hearing. During the hearing, Tess was called to testify and she claimed that she had not filed the VPO so that it could be used in the custody matter. However, she also testified that she wanted to dismiss the VPO and Theresa did not want her to do so because it would be detrimental to Pearman in the custody case. She also testified that she had contacted Pearman on multiple occasions after the April 29th incident because she still loved him. ¶15 On July 18, 2014, Pearman filed a motion for new trial or a motion to vacate judgment of the decision by the trial court, or in the alternative a finding that Tess's actions were frivolous and award attorney fees and costs to the him. The motion for new trial was granted, and a hearing was held on August 18, 2014. At the hearing, Pearman's attorney argued that there was a conspiracy between the two women. ¶16 After the hearing, the trial court held that, although the evidence was conflicting, there was a failure to show that the filing for a protective order was frivolous or in bad faith and victimless, indicating that a finding of each was required in order to award attorney fees and costs. No costs or attorney fees were assessed against Tess. We granted certiorari to address whether the filing was frivolous, and victimless, and whether attorney fees and costs should have been awarded pursuant to 22 O.S. 2013 §60.2.2 STANDARD OF REVIEW ¶17 In Curry v. Streater, 2009 OK 5, ¶8, 213 P.3d 550, we addressed the first impression question of the proper standard of review of a protective order. We analogized a protective order, under the Protection from Domestic Abuse Act, 22 O.S. 2001 §§60-60.20 et seq., in the same manner as an injunction.3 The standard of review for the grant or denial of an injunction is whether there was an abuse of discretion by the trial judge.4 Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law.5 To reverse under an abuse of discretion standard, an appellate court must find the trial court's conclusions and judgment were clearly erroneous, against reason and evidence.6 PURSUANT TO 22 O.S. § 60.2 THE MATTER WAS FRIVOLOUSLY FILED AND VICTIMLESS, AND ATTORNEY FEES AND COSTS SHOULD HAVE BEEN AWARDED. ¶18 Tess argues that nothing in the record indicates that the purpose for filing the VPO was for Theresa to gain an advantage in the custody case and that the trial court acted within its discretion in refusing to award costs and attorney fees against her. Pearman argues that repercussions should be administered for misuse of VPOs and that the statute provides the remedy of awarding attorney fees and assessing costs, but the trial court neglected to apply this remedy. ¶19 Title 22 O.S. Supp. 1982 §60.2 is part of an Act known as the Protection from Domestic Abuse Act (the Act) and it was codified in 1982.7 At the time of codification the statutory provisions of 22 O.S. Supp. 1982 §60.2 did not require filing fees, but it did provide for the assessment of attorney fees to either party.8 One obvious purpose of the statute was to encourage victims to pursue their legal remedies in court without regard to economic means for filing fees, yet to discourage unnecessary or frivolous filings by allowing the award of attorney fees and costs against either party. ¶20 In 2000, the statute added the term "victim" to provide "victims" of domestic abuse the opportunity for protection,9 but nowhere in the Act was the term "victim" or frivolous defined.10 The current provisions of 22 O.S. 2013 §60.2, provide that when a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff.11 The Act still did not define "victim" or "frivolous." When a statute does not define a word or words contained therein, the courts will interpret the words in their common, ordinary sense.12 The term victim is generally defined as a person harmed by a crime, tort, or other wrong.13 Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase whenever it occurs, except where a contrary intention plainly appears.14 Another definition of victim is found in provisions of 21 O.S. 2011 § 142.3, the Crime Victims Compensation Act as: a person who suffers personal injury or death as a result of criminally injurious conduct. . . . ¶21 There was no evidence of stalking, harassment, or rape and even if Tess did sustain physical injuries, the record is disparate as to who caused any injuries that she sustained. Nevertheless, the weight of the evidence in the record regarding the purpose and/or reason she filed the petition for the VPO against Pearman shows that it was to help Theresa in her custody battle, not to actually seek protection from Pearman. Furthermore, it appears that no court ever ruled on who caused the alleged injuries. Criminal charges were not pursued against Pearman or anyone else as a result of this incident. ¶22 No protective order issued. Rather, Tess withdrew the application and the court granted the request, with her attorney stating that her texts indicated that if it were not for Theresa's custody case, she would not have filed a petition for protective order. He also characterizes her request to withdraw the petition as a tacit statement that she did not need the protective order. ¶23 Because Tess was not legally determined to be Pearman's victim, and she withdrew her petition for protective order under the factual circumstances in this cause, the trial court could not have reached any other conclusion but to determine the cause victimless. The other provisions of the civil pleading code, 12 O.S. 2011 §2011.1 specifically defines frivolous as "the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law." ¶24 The statements by Tess in the text messages and the statement of her attorney in withdrawing the petition for protective order clearly show that she did not seek the petition for protective order to save herself from bodily injury at the hands of Pearman, but rather to assist his former wife in her custody case. The trial court's determination that the proceeding was not frivolous was clearly against the weight of the evidence and an abuse of direction. ¶25 The trial court also refused to award attorney fees and costs against Tess for seeking a frivolous and victimless protective order. Because the obvious purpose of the attorney fee and costs provisions in 22 O.S. 2011 §60.2 is to preclude the filing of frivolous and victimless applications, the trial court also abused its discretion in neglecting to award costs and attorney fees under the facts of this cause. CONCLUSION ¶26 The clear weight of the evidence was that the petition for protective order was filed for the purpose of harming Pearman in his custody litigation with his former wife. The trial court abused its discretion in failing to find that the filing by Tess was frivolous. Because the petition for protective order was withdrawn, the matter, pursuant to 22 O. S. 2013 § 60.2, had no victim as a matter of law. Because this cause was both frivolous and victimless, the trial court should have awarded attorney fees and costs against Tess. ¶27 We recognize the importance of a VPO and that its purpose is obviously aimed at helping to stop violent and harassing behavior and to protect a person or their family from the person causing harm. The Legislature also recognizes this purpose by waiving filing fees so that anyone who feels threatened can legally pursue a VPO without regard to monetary resources. At the same time, VPOs are not to be used to harass or for other reason than their intended purpose. The Legislature also recognizes this by allowing court costs and attorney fees to be recovered by either party in the event the VPO was sought for an unsavory or frivolous purpose. Under the facts of this cause, the purpose of helping to stop violent and harassing behavior was not the purpose for which this VPO was primarily sought. Accordingly, the cause is reversed and remanded to the trial court to make that award and determine the appropriate amount of attorney fees, court costs and filing fees to award. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS TO AWARD ATTORNEY FEES AND COSTS. REIF, C.J. COMBS, V.C.J., KAUGER, WATT, COLBERT, GURICH, JJ., concur. TAYLOR, J., concurs in result. WINCHESTER, EDMONDSON, JJ., dissent. FOOTNOTES 1 Title 22 O.S. Supp. 2013 §60.2 provides in pertinent part: A. A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim of rape, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of the Protection from Domestic Abuse Act. . . . C. 1. Except as otherwise provided by this section, no filing fee, service of process fee, attorney fees or any other fee or costs shall be charged the plaintiff or victim at any time for filing a petition for a protective order whether a protective order is granted or not granted. The court may assess court costs, service of process fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees. 2. If the court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff. . . . F. A court may not require the victim to seek legal sanctions against the defendant including, but not limited to, divorce, separation, paternity or criminal proceedings prior to hearing a petition for protective order. 2 Title 22 O.S. 2013 §60.2, see note 1, supra. 3 Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550. 4 Scott v. Oklahoma Secondary Sch. Activities Ass'n, 2013 OK 84, ¶16, 313 P.3d 891; Curry v. Streater, see note 3, supra; Johnson v. Ward, 1975 OK 129, ¶42, 541 P.2d 182, 188. 5 Curry v. Streater, see note 3, supra; State ex rel. Tal v. Oklahoma City, 2002 OK 97, ¶3, 61 P.3d 234, 240; Abel v. Tisdale, 1980 OK 161, ¶ 29, 619 P.2d 608. 6 Curry v. Streater, see note 3, supra; Parsons v. Volkswagen of Am., Inc., 2014 OK 111, ¶9, 341 P.3d 662; Oklahoma Tpk. Auth. v. Little, 1993 OK 116, ¶6, 860 P.2d 226, 228. 7 Title 22 O.S. 2011 §§60-60.20. 8 Title 22 O.S. Supp. 1982 §60.2 provides in pertinent part: . . .c. No filing fee shall be charged the plaintiff at the time the petition is filed. The court may assess court costs and filing fees to either party at the hearing on the petition. 9 Title 22 O.S. Supp. 2000 §60.2; Okla. Ag. Opin. No. 04-4. 10 Other definitions are found at 22 O.S. 2011 §60.1 where such terms as domestic abuse, stalking, harassment, dating relationship and victim support person are defined. However, the term "victim" is not defined. 11 Title 22 O.S. 2013 §60.2, see note 1, supra. 12 American First Abstract Co. v. Western Information Systems, Inc., 1987 OK 24, ¶5, 735 P.2d 1187; Loffland Bros. Equipment v. White, 1984 OK 24, ¶7, 735 P.2d 1187. 13 Black 's Law Dictionary (10th ed. 2014). 14 Oliver v. City of Tulsa, 1982 OK 121, ¶18, 654 P.2d 607.

84c4c54c-e1e0-4462-8e46-41fd9354c4ad

Allen v. Harrison

oklahoma

Oklahoma Supreme Court

ALLEN v. HARRISON2016 OK 44Case Number: 111877Decided: 04/19/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Teresa Lynn Allen, Appellant, v. John J. Harrison, D.O. Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Patient, who accidentally swallowed a nail, brought a medical malpractice action based, inter alia, upon a claim of lack of informed consent against the hospital's emergency room physician after the physician advised patient to "eat fiber and let the nail pass." The physician did not, however, disclose the alternative medical options which included endoscopic and surgical removal of the ingested nail. Following severe vomiting, the patient proceeded to a different emergency room. Emergency surgery was performed to remove the nail, and the patient was treated for a perforated and infected bowel. The trial court, Honorable Brent Russell, granted partial summary judgment in favor of the physician on the issue of informed consent, and the Court of Civil Appeals affirmed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Jon Williford, Griffin, Reynolds, and Associates, Oklahoma City, for Appellant. Lane O. Krieger, Wiggins Sewell & Ogletree, Oklahoma City, for Appellee. COLBERT, J. ¶1 This is a medical malpractice case premised in part on the doctrine of informed consent. The issue presented on certiorari review is whether the doctrine of informed consent requires a physician to obtain the patient's consent before implementing a nonsurgical or noninvasive course of treatment. Inherent in the question presented, is whether a physician-in addition to discussing with the patient treatment alternatives that the physician recommends-should discuss medically reasonable alternatives that the physician does not recommend. Based on the following, this Court answers both questions in the affirmative. BACKGROUND AND PROCEDURAL HISTORY ¶2 Appellant, Teresa Lynn Allen (Allen), swallowed a small nail on June 1, 2009. She went to Duncan Regional Hospital's emergency room in Duncan, Oklahoma. Appellee, John J. Harrison, D.O., emergency room physician (Physician), examined Allen. Physician ordered an X-ray of Allen's stomach. The X-ray confirmed the presence of a foreign body in Allen's stomach, just below the diaphragm. Based on Physician's assessment and clinical judgment, Physician discharged Allen prescribing: (1) "a high-fiber diet to let the nail pass;" (2) return to the hospital if she had any problems; and (3) follow up with her family doctor in three days. On June 2, 2009, following severe vomiting, Allen went to the emergency room at Southwestern Hospital in Lawton, Oklahoma. That same day, the hospital performed emergency surgery to remove the ingested nail from Allen's intestines. At that time, Allen was treated for a perforated and infected bowel. In addition, Allen endured two additional surgeries to treat the complications that arose from the emergent surgery of June 2, 2009. ¶3 Allen sued Duncan Regional Hospital and Physician for the defendants' alleged medical negligence and failure to obtain Allen's informed consent.1 Specifically, Allen contended that Physician failed to disclose the potential risk in letting the nail pass through her digestive system as well as the alternatives to his recommended course of treatment. Had Physician effectively discharged his duty to disclose, Allen would have "chosen the option of no treatment or a different course of treatment." ¶4 During discovery, Physician admitted that he neither advised Allen of the alternative treatment options-namely, endoscopic or surgical intervention-nor consulted with a surgeon prior to Allen's discharge. However, Physician testified that he was not qualified to perform an endoscopic or other surgical procedure to extract the nail. Those alternative treatment options, according to Physician, were beyond his field of practice. And, therefore, Physician was not required to advise Allen of those alternatives. ¶5 Physician filed a Motion for Partial Summary Judgment asserting that he was entitled to judgment as a matter of law on Allen's informed consent claim. Physician contended that under Oklahoma law, a valid informed consent claim is only recognized in cases involving the performance of an affirmative treatment by a defendant physician. But where, as here, Physician relied on his clinical judgment and did not affirmatively treat and cause Allen's injuries, the elements of informed consent cannot be satisfied. Physician also alleged that Oklahoma law does not require an emergency physician to offer "options" of surgical/endoscopic treatment outside the emergency department and outside the expertise of an emergency physician. The trial court agreed and granted Physician's motion, reasoning that, the Court can find no case supporting the doctrine of informed consent where no action was taken by the attending physician. Rather, such doctrine applies when the treatment received causes injury, and alternative procedures were not explained. Plaintiff's claim is one of negligence based upon Defendant's failure to appropriately recognize and treat the symptoms presented by Plaintiff. (Emphasis added). Allen unsuccessfully sought reconsideration of the trial court's ruling granting Physician's summary judgment request. Allen's medical negligence claim against Physician, however, proceeded to trial. The jury returned a verdict in favor of Physician and Allen appealed. ¶6 The Court of Civil Appeals affirmed on slightly different grounds. Relying on Smith v. Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, the appellate court concluded the doctrine of informed consent is triggered only when a physician provides surgical treatment resulting in the patient's injury but failed to disclose the viable alternatives to surgery. Allen filed this petition for certiorari review, which this Court granted. STANDARD OF REVIEW ¶7 Upon appellate review, summary judgment will be affirmed only if this Court determines the moving party presented evidentiary materials establishing that uncontroverted facts and all inferences that can be drawn therefrom support only one conclusion-that the moving party is entitled to judgment as a matter of law. See Wathor v. Mut. Assurance Adm'rs, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559, 561; Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978, 987. However, where a de novo review of the record in the light most favorable to the non-moving party confirms that no material issues of fact exist, but rather reveals that the trial court misinterpreted the applicable law, summary judgement will be reversed. See, Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 (issues of law are reviewed de novo). DISCUSSION ¶8 This Court begins with the premise that "each man [is] considered to be his own master." Scott v. Bradford, 1979 OK 165, ¶ 9, 606 P.2d 554, 556. A patient's right of self-decision is only exercised effectively if the patient possesses enough information to enable an informed choice. Id.,¶ 10, 606 P.2d at 557. That is, a patient has the right to make his or her own determination about treatment. With that premise in mind, Oklahoma law forbids a physician to substitute one's judgment for that of the patient by any form of artifice. Id.,¶ 9, 606 P.2d at 556. This Court's decision in Scott v. Bradford rendered almost thirty-six years ago, anchored the doctrine of informed consent in that premise. Id. ¶9 Informed consent is a basic principle sounding in ethics and law that physicians must honor unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent. American Medical Association, Code of Medical Ethics: Opinion 8.08 (2006). The linchpin of informed consent is a physician's duty to inform a patient of the medically reasonable treatment options and their attendant risks. Id. A physician is charged with the obligation to present the medical facts accurately to the patient or his proxy and to make recommendations for management in accordance with good medical practice. In so doing, a physician should disclose all courses of treatment that are medically reasonable under the circumstances. But, a physician is not permitted to "withhold[] any facts which are necessary to form an intelligent consent by the patient to the proposed treatment." Parris v. Limes, 2012 OK 18, ¶ 7, 277 P.3d 1259, 1263. In fact, to effectively discharge "this duty, a physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it." Id. So, "[i]f a physician breaches this duty, [a] patient's consent is defective, and [the] physician is responsible for the consequences." Scott, 1979 OK 165, ¶ 10, 606 P.2d at 557. ¶10 A cause of action premised on the lack of informed consent is comprised of three essential elements: (1) non-disclosure, (2) causation, and (3) injury. Scott v. Bradford, 1979 OK 165, ¶ 18, 606 P.2d 554, 558. The full disclosure rule announced in Scott is not without exceptions. Although a physician's failure to disclose is the first element in maintaining this cause of action, such a duty may be excused when the circumstances so warrant. For instance, disclosure is not required when the risks are common knowledge or known by the patient; "where full disclosure would be detrimental to a patient's total care and best interest . . .;" or in cases of an emergency in which the patient or his proxy is unable to determine for himself "whether treatment should be administered . . .". Id., ¶ 16, 606 P.2d at 558. ¶11 On appeal, the parties disagree about the interpretation of Scott, and its progeny. The differences between these interpretations come to the fore when a court, as here, must consider a physician's duty to obtain a patient's informed consent regardless of whether the physician is implementing an invasive or noninvasive course of treatment. Allen argues that the doctrine of informed consent is not limited to surgical intervention. Rather, the doctrine applies to a physician's recommenced course of treatment whether invasive or noninvasive. Physician, however, contends the doctrine does not apply to emergency room physicians. Therefore, to require an emergency room physician to provide surgical/invasive options outside his scope of practice and contrary to his medical judgment would be an expansion of Oklahoma's informed consent laws. Physician is mistaken. ¶12 The problem with the Physician's interpretation and the application of the courts below are twofold: (1) it falsely advances the position that a physician must secure a patient's informed consent only for surgical procedures, not for those that are noninvasive; and (2) it ignores this Court's expressed pronouncement in Scott, that the scope of a physician's communication is measured by the "patient's need to know enough to enable him to make an intelligent choice," not the physician's professional standard. See Scott, 1979 OK 165, ¶ 15, 606 P.2d at 558. ¶13 Pursuant to Scott, the informed consent doctrine is predicated on a physician's duty to disclose. The decisive factor is not the invasiveness of the treatment, but whether the physician provided the patient with enough information that would enable the patient to make an informed choice before subjecting the patient to a recommended course of treatment. As a practical matter, a physician will recommend a course of treatment and a patient generally chooses to adopt the physician's recommendation. It is well-settled that the ultimate decision rests with the patient. Therefore, physicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice. ¶14 In Smith v. Reisig, M.D., Inc., a patient filed suit against her physician for lack of informed consent after undergoing a hysterectomy that resulted in injury to her bladder. 1984 OK 56, 686 P.2d 285. The physician's testimony and other evidence established that hormonal therapy was a viable alternative to the hysterectomy and possibly preferable to the surgery. Id., ¶ 11, 686 P.2d at 288. But, that alternative was not disclosed to the patient. This Court found the physician failed to disclose the viable alternatives to the patient and, "that single failure to inform" was a violation of the physician's obligation to disclose. Id. "If the remaining elements are satisfied such violation gives rise to liability for the results of the treatment." Id. ¶15 Most recently, in Parris v. Limes, this Court held that an informed consent claim could withstand summary judgment when the patient claimed he would not have undergone multiple invasive tests after the surgical removal of his prostate, had the physician ordering the tests disclosed that the surgical pathology revealed no cancerous cells. 2012 OK 18, 277 P.3d 1259. ¶16 In examining the seminal cases shaping the informed consent doctrine, it is patently clear-a physician has a duty to inform the patient not only of the medically reasonable alternatives the physician recommends, but of medically reasonable alternatives that the physician does not recommend to the patient or disclose. However, here, Physician would have this Court believe that because the factual scenarios out of which the doctrine arose involved some affirmative violation of the patient's physical integrity, such as the surgical procedures performed in Scott and Smith or the invasive diagnostic tests administered in Parris, a physician's duty to disclose is somehow limited to only those situations. This Court never intended to restrict a physician's duty to disclose to only invasive treatments. The doctrine applies equally to invasive, as well as noninvasive, procedures. And, any other interpretation belies the fundamental premise that "each man [is] considered to be his own master." Scott, 1979 OK 165, ¶ 9, 606 P.2d at 556. At a minimum, Physician should have explained to Allen the associated risks and the alternatives to letting the nail pass through her digestive system along with his reasons for the recommended course of treatment. ¶17 Likewise, Physician's sole reliance on his clinical judgment as a basis for excusing his obligation to disclose is without merit. As discussed and expressly rejected in Scott, the general rule of the "professional standard of care" in determining what must be disclosed "perpetuate[d] medical paternalism by giving the [medical] profession sweeping authority to decide unilaterally what [was] in the patient's best interests." 1979 OK 165, ¶ 13, 606 P.2d at 557. That is, a patient was provided information on a need-to-know basis in conformance with the community's prevailing medical practice. Id. In application, the professional standard would severely limit the protections granted to an injured patient and jeopardize a patient's right of self-determination. Accordingly, this Court declined to impose the professional standard. Id. The basic right to know and decide is the foundation of the full-disclosure rule. Therefore, a physician's duty of disclosure must be measured by his patient's need to know enough information to enable the patient to make an intelligent choice. Id. This duty exists regardless of whether the prescribed treatment is invasive or noninvasive. ¶18 Moreover, Physician's erroneous assertion that he did not "affirmatively treat" Allen is unavailing. Physician disingenuously attempts to distinguish this case from Scott, Smith, and Parris as those cases involved an "affirmative treatment." Although the surgeons in Scott and Smith performed hysterectomies; and the physician in Parris administered multiple cancer screenings-here, Physician prescribed a high-fiber diet which is an affirmative treatment. Under Oklahoma law, treatment is "the use of drugs, surgery, including appliances, manual or mechanical means, or any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill . . .." Okla. Stat. tit. 59, § 731.1(4). Clearly, Physician's recommenced course of treatment to "eat fiber and let the nail pass" falls under the "any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill . . ..". Id. ¶19 Physician testified that he made the decision to prescribe a high-fiber diet after reviewing Allen's X-ray and determining the nail had cleared her diaphragm. Although Physician acknowledged that endoscopic or surgical intervention was a medically reasonable alternative, he withheld this information from Allen as it was beyond his scope of practice and experience. Further, Physician had a duty to disclose the alternative invasive interventions even to the extent that it may have required consultation with another medical professional to facilitate the disclosure. Based on his clinical judgment Physician, not Allen, made the decision to let the nail pass through her digestive system. But, that was not solely within Physician's purview. CONCLUSION ¶20 Today, this Court emphasizes the doctrine of informed consent applies equally to invasive as well as noninvasive medical treatments and treatment alternatives regardless of a physician's scope of practice. To effectively discharge a physician's duty to disclose, a physician must disclose the medically reasonable alternatives regardless of whether it is the physician's preferred method of treatment. The ultimate decision of what treatment a patient receives rests with the patient, not the physician. The trial court erred in holding that Allen's claim of informed consent was not actionable. Resultantly, this matter is remanded for further proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert, and Gurich, JJ. DISSENT: Winchester and Taylor, JJ. FOOTNOTES 1 Allen and Duncan Regional Hospital entered into a settlement agreement prior to trial. The case against Physician, however, proceeded to trial.

4bb68da4-5704-4ee9-8427-f04b60f6f232

Maxwell v. Sprint PCS

oklahoma

Oklahoma Supreme Court

MAXWELL v. SPRINT PCS2016 OK 41Case Number: 113898Decided: 04/12/2016No. 113811; 113941; 114161 (Companion cases)THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. THERESA MAXWELL, Petitioner,v.SPRINT PCS, AMERICAN CASUALTY CO. OF READING PENNSYLVANIA, and THE WORKERS' COMPENSATION COMMISSION, Respondents, and DAMIEN LEQUINT SMITH, PETITIONER,v.BAZE CORP. INVESTMENTS, INC. and COMPSOURCE MUTUAL INS. CO., Respondents, and JERRY D. HOFFMAN, Petitioner,v.TULSA GAS TECHNOLOGIES, INC., and COMMERCE & INDUSTRY INSURANCE CO., Respondents, and DELANO MAJORS, Petitioner,v.ACCENT STAFFING, INC., COMPSOURCE MUTUAL INS., CO., and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION ¶0 The above-styled and numbered causes were made companion cases by this Court's order of October 6, 2015. The dispositive issues in each of the cases are the same. Upon consideration, we conclude that scheduled members are exempt from the AMA Guides under the Administrative Workers' Compensation Act. We also hold that the permanent partial disability deferral provision of 85A O.S. Supp. 2013 § 45(C)(5) is an unconstitutional violation of due process under Art. 2, § 7 of the Oklahoma Constitution. The deferral of permanent partial disability benefits to a subclass of injured workers under 85A O.S. Supp. 2013 § 46(C) is an unconstitutional special law in violation of Art. 5, § 59 of the Oklahoma Constitution. WORKERS' COMPENSATION COMMISSION ORDERS IN THE ABOVE-STYLED AND NUMBERED CAUSES VACATED; ABOVE-STYLED ANDNUMBERED CAUSES REVERSED AND REMANDED FOR PROCEEDINGSCONSISTENT WITH TODAY'S PRONOUNCEMENT Bob Burke, Oklahoma City, Oklahoma, for Petitioner Theresa Maxwell and Petitioner Damien Smith.Gary Prochaska, Oklahoma City, Oklahoma, for Petitioner Damien Smith.Bret A. Unterschuetz, Law Offices of Arthur H. Adams, P.C., Tulsa, Oklahoma, for Petitioner Jerry Hoffman.Michael R. Green, Valerie L. Sparks, Law Offices of Michael R. Green, Tulsa, Oklahoma, for Petitioner Delano Majors.John A. McCaleb, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Respondents Sprint PCS and American Casualty Co. of Reading, PA.Preston G. Hanner, Caldwell, Russell, Thompson & Hanner P.C., Oklahoma City, Oklahoma, for Respondents Baze Corp. Investments and Compsource Mutual Insurance Company.Kevin E. McCarty, McCarty & Associates, PLLC., Oklahoma City, Oklahoma, for Respondents Tulsa Gas Technologies, and Commerce and Industry Insurance Company.David J.L. Frette, Anthony A. Blair, Perrine, Redemann, Berry, Taylor & Sloan, P.L.L.C, Tulsa, Oklahoma, for Respondent Accent Staffing Inc., and Compsource Mutual Insurance Company.E. Scott Pruitt, Patrick R. Wyrick, Sarah A. Greenwalt, Jared B. Haines, Office of the Attorney General, Oklahoma City, Oklahoma.Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Coalition for Workers' Rights.V. Glenn Coffee, Denise K. Davick, Glenn Coffee & Associates, Oklahoma City, Oklahoma, for Amicus Curiae State Chamber of Oklahoma. GURICH, J. Facts & Procedural History ¶1 On February 2, 2014, Petitioner Theresa Maxwell suffered an injury to her knee while working for her Employer, Respondent Sprint PCS. She promptly notified her Employer and timely filed a CC-Form-3 with the Workers' Compensation Commission on March 18, 2014. The Employer admitted Petitioner's injury to her knee was compensable, and she had surgery to repair a tendon in her knee. Petitioner also received temporary total disability benefits from February 6, 2014, until February 24, 2014. After reaching maximum medical improvement on July 2, 2014, she returned to her pre-injury position with her employer earning her pre-injury wages. On September 24, 2014, Petitioner Maxwell filed a request for a contested hearing on the issue of permanent partial disability. ¶2 A hearing was held on December 8, 2014, and the ALJ, relying on the AMA Guides 6th Edition, concluded that Petitioner sustained 2% permanent partial disability to the body as a whole as a result of the injury to her knee and that the rate of compensation was $323.00 for a total award of $2,261.00. However, because she returned to her pre-injury position and pay, the ALJ ordered the award of benefits be deferred at a rate of $323.00 beginning July 2, 2014, for every week Petitioner worked in her pre-injury or equivalent job according to 85A O.S. Supp. 2013 § 45(C)(5). Petitioner appealed the order, and the Workers' Compensation Commission sitting en banc affirmed on April 24, 2015. Petitioner Maxwell appealed to this Court on May 4, 2015, and we retained the case. On October 6, 2015, this case was made a companion case with the above-styled and numbered causes.1 Standard of Review ¶3 Section 78 of Title 85A provides: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was: 1. In violation of constitutional provisions; 2. In excess of the statutory authority or jurisdiction of the Commission; 3. Made on unlawful procedure; 4. Affected by other error of law; 5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence; 6. Arbitrary or capricious; 7. Procured by fraud; or 8. Missing findings of fact on issues essential to the decision. 85A O.S. Supp. 2013 § 78(C). Analysis Scheduled Members Are Exempt From the AMA Guides Under the AWCA ¶4 The issue of whether scheduled members are exempt from the AMA Guides under the AWCA is an issue of statutory interpretation. Statutory interpretation presents a question of law which we review under a de novo standard. Such review is plenary, independent, and non-deferential. State ex rel. Protective Health Servs. State Dep't of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064. ¶5 Petitioner Maxwell and Respondent Employer Sprint PCS both agree that Petitioner Maxwell's injury to her knee was an injury to her leg. Under 85A O.S. Supp. 2013 § 2(40), a leg is considered a "'scheduled member' or 'member'" along with "hands, fingers, arms, feet, toes, and eyes."2 Section 45(C)(1), which addresses permanent partial disability, provides in part that "[a] physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's 'Guides to the Evaluation of Permanent Impairment.'"3 Respondent Employer Sprint PCS concedes4 the AMA Guides do not apply because the statutory language specifically exempts scheduled members from the AMA Guides.5 ¶6 The language exempting scheduled members from the AMA Guides was inserted into the workers' compensation statutes in 1977 and has remained in each and every version of the statute since that time.6 This Court, for nearly forty years, has interpreted such language to mean exactly what it says--scheduled members are exempt from the AMA Guides.7 "Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts retaining the same or substantially similar language as the provisions formerly in force will be accorded the identical construction to that placed upon them by preexisting case law."8 Petitioner Maxwell's knee injury was exempt from evaluation under the AMA Guides.9 ¶7 Additionally, because Petitioner Maxwell's injury was to a scheduled member, the permanent partial disability award should have been to the leg and not to the body as a whole. Section 46(A) provides: A. An injured employee who is entitled to receive permanent partial disability compensation under Section 45 of this act shall receive compensation for each part of the body in accordance with the number of weeks for the scheduled loss set forth below. 1. Arm amputated at the elbow, or between the elbow and shoulder, two hundred seventy-five (275) weeks; 2. Arm amputated between the elbow and wrist, two hundred twenty (220) weeks; 3. Leg amputated at the knee, or between the knee and the hip, two hundred seventy-five (275) weeks; 4. Leg amputated between the knee and the ankle, two hundred twenty (220) weeks; 5. Hand amputated, two hundred twenty (220) weeks; 6. Thumb amputated, sixty-six (66) weeks; 7. First finger amputated, thirty-nine (39) weeks; 8. Second finger amputated, thirty-three (33) weeks; 9. Third finger amputated, twenty-two (22) weeks; 10. Fourth finger amputated, seventeen (17) weeks; 11. Foot amputated, two hundred twenty (220) weeks; 12. Great toe amputated, thirty-three (33) weeks; 13. Toe other than great toe amputated, eleven (11) weeks; 14. Eye enucleated, in which there was useful vision, two hundred seventy-five (275) weeks; 15. Loss of hearing of one ear, one hundred ten (110) weeks; 16. Loss of hearing of both ears, three hundred thirty (330) weeks; and 17. Loss of one testicle, fifty-three (53) weeks; loss of both testicles, one hundred fifty-eight (158) weeks.10 The parts of the body listed in § 46(A) include arm, leg, hand, foot, fingers, toes, eyes, ears (loss of hearing), and testicles. Except for the testicles, the body parts listed in the § 46(A) schedule are the same body parts defined as scheduled members. Additionally, arms, legs, hands, feet, fingers, toes, and eyes have been classified as scheduled members since the inception of the system in 1915.11 The "other cases" provision in § 46(C) by its terms applies only to "an injury to a part of the body not specifically covered by the foregoing provisions of this section," i.e., § 46(A). 85A O.S. Supp. 2013 § 46(C). The "other cases" provision has also applied to "all other cases" since 1915.12 ¶8 While amputations to parts of the body listed in § 46(A) are compensated for the number of weeks listed, § 46(B) goes on to state that "[t]he permanent partial disability rate of compensation for amputation or permanent total loss of use of a scheduled member specified in this section shall be seventy percent (70%) of the employee's average weekly wage, not to exceed Three Hundred Twenty-three dollars ($323.00), multiplied by the number of weeks as set forth in this section, regardless of whether or not the injured employee is able to return to his or her pre-injury job." 85A O.S. Supp. 2013 § 46(B) (emphasis added). Additionally, § 46(G) provides that "[c]ompensation for permanent total loss of use of a member shall be the same as for amputation of the member." 85A O.S. Supp. 2013 § 46(G) (emphasis added). The use of the word "amputated" in the schedule in § 46(A), by further definition, actually means amputations OR "permanent total loss of use of a scheduled member" OR "permanent total loss of use of a member." ¶9 "Permanent total loss of use" is not a defined term in the AWCA. Previous versions of the statute used the term "permanent loss of use," meaning incapable of use in the ordinary manner. Bristow Cotton Oil Co. v. State Indus. Com'n, 1920 OK 117, ¶ 4, 188 P. 658, 658. Neither the Attorney General nor any Employer has pointed to any meaningful distinction between "permanent total loss of use" and "permanent loss of use," and we find none. Therefore, the phrase "permanent total loss of use of a scheduled member" translates to 100% loss of a scheduled member. ¶10 Although we recognize the statute under consideration does not specifically reference partial loss of use,13 as the AWCA is structured, an injury either falls under § 46(A) and is compensated according to that specific body part, or an injury falls under § 46(C) "other cases" and is compensated to the body as a whole. This statutory structure has been in place since 1915,14 and this Court's construction of such has gone unchanged since that time. "Legislative familiarity with extant judicial construction of statutes is presumed."15 In the case before us, a "[l]eg amputated at the knee, or between the knee and the hip" would include the knee, so amputation or total loss of use of the knee (100% loss) would be compensated at a maximum of 275 weeks. Partial loss of the knee (less than 100% loss) would then be compensated for the number of weeks the partial loss bears to 275 weeks. On remand, the ALJs shall recalculate the permanent partial disability awards in the above-styled and numbered causes in accordance with this opinion.16 The Permanent Partial Disability Deferral Provision of 85A O.S. Supp.2013 § 45(C)(5) is a Violation of Due Process Under the OklahomaConstitution ¶11 After erroneously applying the AMA Guides to a scheduled member and concluding that Petitioner Maxwell sustained 2% permanent partial disability to the body as a whole as a result of the injury to her knee, the ALJ awarded Petitioner Maxwell a permanent partial disability award of $2,261.00. However, because Petitioner Maxwell returned to her pre-injury position and pay, the ALJ ordered the award of benefits be deferred according to 85A O.S. Supp. 2013 § 45(C)(5). The deferral provision of § 45(C)(5) of Title 85A provides: 5. Except pursuant to settlement agreements entered into by the employer and employee, payment of a permanent partial disability award shall be deferred and held in reserve by the employer or insurance company if the employee has reached maximum medical improvement and has been released to return to work by his or her treating physician, and then returns to his pre-injury or equivalent job for a term of weeks determined by dividing the total dollar value of the award by seventy percent (70%) of the employee's average weekly wage. a. The amount of the permanent partial disability award shall be reduced by seventy percent (70%) of the employee's average weekly wage for each week he works in his pre-injury or equivalent job. b. If, for any reason other than misconduct as defined in Section 2 of this act, the employer terminates the employee or the position offered is not the pre-injury or equivalent job, the remaining permanent partial disability award shall be paid in a lump sum. If the employee is discharged for misconduct, the employer shall have the burden to prove that the employee engaged in misconduct. c. If the employee refuses an offer to return to his pre-injury or equivalent job, the permanent partial disability award shall continue to be deferred and shall be reduced by seventy percent (70%) of the employee's average weekly wage for each week he refuses to return to his pre-injury or equivalent job. d. Attorney fees for permanent partial disability awards, as approved by the Commission, shall be calculated based upon the total permanent partial disability award and paid in full at the time of the deferral. e. Assessments pursuant to Sections 31, 98, 112 and 165 of this act shall be calculated based upon the amount of the permanent partial disability award and shall be paid at the time of the deferral.17 Section 2 of Title 85A defines "[p]re-injury or equivalent job" as "the job that the claimant was working for the employer at the time the injury occurred or any other employment offered by the claimant's employer that pays at least one hundred percent (100%) of the employee's average weekly wage[.]" 85A O.S. Supp. 2013 § 2(37). ¶12 The Attorney General argues that the newly inserted permanent partial disability benefits "deferral provision advances a legislative policy that disability payments be directly connected to a reduction in earnings capacity."18 Since 1941, permanent partial disability compensation has been awarded solely on the basis of loss of function as established by medical evidence, and an injured employee's loss of earning capacity has been arbitrarily fixed by statute and a claimant has not been required to present evidence of loss of wage-earning capacity.19 Once a permanent partial disability award became final, the injured employee was entitled to receive the money awarded in weekly benefits. The money awarded represented the total "damages" suffered by the employee. ¶13 Under the AWCA, the newly defined term "[d]isability" is defined as "incapacity because of compensable injury to earn, in the same or any other employment, substantially the same amount of wages the employee was receiving at the time of the compensable injury[.]"20 Additionally, permanent partial disability is now defined as "a permanent disability or loss of use after maximum medical improvement has been reached which prevents the injured employee, who has been released to return to work by the treating physician, from returning to his or her pre-injury or equivalent job. All evaluations of permanent partial disability must be supported by objective findings[.]" 85A O.S. Supp. 2013 § 2(34). According to this definition, permanent partial disability is no longer a mere equivalent to physical impairment or functional disability unrelated to industrial performance.21 The above statutory language suggests the Legislature intended for permanent partial disability to be based solely on loss of earning capacity with no consideration as to the physical insult to the employee's body. ¶14 However, the AWCA also includes the term "permanent disability," which means "the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the current edition of the American Medical Association guides to the evaluation of impairment, if the impairment is contained therein," indicating that loss of function in the medical sense is still relevant to a disability determination. 85A O.S. Supp. 2013 § 2(33) (emphasis added). Additionally, 85A O.S. Supp. 2013 § 45(C)(1) addresses the "competent medical testimony of a medical doctor, osteopathic physician, or chiropractor," that is necessary to support a permanent partial disability determination. Ambiguities and inconsistencies abound in the AWCA, but regardless, as the system has been implemented by the Commission, the due process rights of injured employees have been unconstitutionally abrogated with regard to permanent partial disability determinations and compensation. ¶15 Article 2, § 7 of the Oklahoma Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law."22 This Court has held that "Oklahoma's due process clause has a definitional sweep that is coextensive with its federal counterpart,"23 and that the "'Due Process Clause provides that certain substantive rights--life, liberty, and property--cannot be deprived except pursuant to constitutionally adequate procedures.'" Daffin, 2011 OK 22, ¶ 20, 251 P.3d 741, 748 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)). "'The right to due process "is conferred, not by legislative grace, but by constitutional guarantee."'" Id. Although the Legislature may "alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law," the Legislature may not deprive such rights, once conferred, without appropriate procedural safeguards. Yaumary Concepcion Torres v. Seaboard Foods, L.L.C., 2016 OK 20, ¶ 30, ___P.3d___ (emphasis added); see also Daffin, 2011 OK 22, ¶ 20, 251 P.3d at 748. ¶16 We first note that the AWCA orders the Commission, through its ALJs, "to hear and determine claims for compensation and to conduct hearings and investigations and to make such judgments, decisions, and determinations as may be required by any rule or judgment of the Commission." 85A O.S. Supp. 2013 § 22(D). By statutory directive, the ALJs undoubtedly act in an adjudicative capacity in the administrative workers' compensation system because adjudication includes "the authority to hear and determine forensic disputes." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. "When an administrative board acts in an adjudicative capacity, it functions much like a court" and such proceedings are quasi-judicial in nature.24 Thus, "[t]he constitutional guaranty of due process of law applies," and proceedings before the Commission require certain constitutional safeguards.25 ¶17 Property interests, within the meaning of the due process clause, "are not created by the Constitution, but rather are derived from an independent source sufficient to create a legitimate claim of entitlement, such as state law or contract." Wood v. Ind. Sch. Dist. No. 141 of Pottawatomie County, 1983 OK 30, ¶ 9, 661 P.2d 892, 894. Title 85A provides that "[t]he determination of permanent partial disability shall be the responsibility of the Commission through its administrative law judges,"26 and "[in] cases of permanent partial disability, the compensation shall be seventy percent (70%) of the employee's average weekly wage, not to exceed Three Hundred Twenty-three Dollars ($323.00) per week . . . ."27 "Compensation" is defined in Title 85A as "the money allowance payable to the employee or to his or her dependents . . . ."28 Section 12 provides that "[c]ompensation due an injured employee or his or her dependents shall have the same preference as is allowed by law to an employee for unpaid wages."29 Section 91 provides: "Compensation shall bear interest pursuant to Section 727.1 of Title 12 of the Oklahoma Statutes from the day an award is made by either an administrative law judge or the full Workers' Compensation Commission on all accrued and unpaid compensation." Section 10 provides that "[t]he right to any claim, benefit or compensation shall not be released or commuted except as provided by the Administrative Workers' Compensation Act and, except for child support liens, is not assignable and is not subject to garnishment, attachment, levy, execution, or any other legal process."30 ¶18 The "Order Awarding Permanent Partial Disability Benefits" in Petitioner Maxwell's case finds: "The Claimant sustained 2% permanent partial disability to the body as a whole for partial loss of use of her LEFT LEG (KNEE) and is awarded compensation for 7 weeks at $323.00 per week, in the total amount of $2,261.00 . . . ."31 In accordance with Title 85A, the ALJ's order awarding Petitioner Maxwell compensation in the amount of $2,261.00 clearly vested in Petitioner Maxwell a property interest worthy of the protections of due process. ¶19 At a minimum, "due process requires notice and a meaningful opportunity to appear and be heard." Crownover, 2015 OK 35, ¶ 14, 357 P.3d at 474. This Court has long held that a "right to a full hearing includes a reasonable opportunity to know the claims of the opposing party and to meet them. There must be adequate notice of the issues, and the issues must be clearly defined in order that an administrative hearing is fair. All parties must be apprised of the charges so they may test, explain or rebut it. They must be given an opportunity to cross-examine witnesses and to present evidence." Wolfenbarger, 1974 OK 38, ¶ 15, 520 P.2d at 812 (emphasis added). ¶20 Petitioner Maxwell, upon reaching maximum medical improvement and returning to work, requested a hearing on the issue of permanent partial disability. At the hearing, Petitioner Maxwell's employer was allowed to present evidence of her return to work as proof Petitioner Maxwell did not suffer a loss of wage-earning capacity. Petitioner Maxwell was limited to presenting medical evidence only. Petitioner Maxwell's return to work was the only evidence considered by the ALJ in determining whether Petitioner Maxwell actually suffered any loss of wage-earning capacity. ¶21 The Legislature cannot pre-determine that an injured worker has in fact had no loss of wage-earning capacity because he or she returned to his or her job making the same wages.32 An employee who has sustained a permanent injury may not suffer a reduction of immediate earning capacity by returning to his or her job, but it is often likely his or her "ultimate earning capacity will be reduced either by a shortening of his work life or a reduction of employment opportunities through a combination of age and physical impairment." Hawkins Bros. Coal Co. v. Thacker, 468 S.W.2d 256, 257 (Ky. 1971) (internal quotations omitted). In fact, a permanent physical impairment caused by a work-related injury "frequently results in a reduced earning capacity in the future rather than an immediate reduction in present earning capacity." Vail Assocs. Inc. v. West, 692 P.2d 1111, 1115 (Colo. 1984) (emphasis added). Evidence of loss of wage-earning capacity could include the injured employee's age, education, work history, vocational training, transferable skills, job opportunities, fitness to perform certain jobs, wage levels, or other information relating to his or her employment situation.33 ¶22 We also note that Petitioner Maxwell returned to work on July 2, 2014. The hearing on permanent partial disability wasn't held until December 8, 2014. In her order awarding permanent partial disability benefits, the ALJ deferred Petitioner Maxwell's permanent partial disability award at a rate of $323.00 beginning July 2, 2014, for every week Claimant worked in her pre-injury job. Thus, Petitioner Maxwell's permanent partial disability award was exhausted well before the hearing on permanent partial disability actually took place. Under the statutory deferral scheme, an injured employee who returns to work loses the ability to collect any subsequent permanent partial disability award issued by the ALJ because by the time the case is heard, enough time will have passed so that the injured employee, in most cases, will have forfeited his right to receive any portion of the permanent partial disability award. The due process clause of the Oklahoma Constitution protects "citizens from arbitrary and unreasonable action by the state." City of Edmond v. Wakefield, 1975 OK 96, ¶ 6, 537 P.2d 1211, 1213. "[S]tate statutes which attempt to take away vested property interest, or work an arbitrary forfeiture of property rights are unconstitutional as violations of due process." Id. (internal citations omitted). ¶23 The Attorney General argues that one of the policy rationales behind the deferral provision is to ensure that employees terminated for misconduct are not inappropriately compensated with disability payments when they are capable of returning to their pre-injury position. But the deferral provision fails to even remotely advance this interest.34 As discussed above, Petitioner Maxwell forfeited her permanent partial disability benefits by simply returning to work.35 Additionally, in Petitioner Smith's case, his employer admitted he suffered a compensable knee injury in the course and scope of his employment. He received temporary total disability benefits and had surgery to repair a torn meniscus. He returned to his pre-injury job on August 19, 2014, after reaching maximum medical improvement and being released by his physician. Approximately one month later on September 22, 2014, due to causing damage while driving a company vehicle, Petitioner Smith was terminated for misconduct by his employer.36 Not until February 12, 2015, was Petitioner Smith awarded $947.31 in permanent partial disability benefits.37 That award was ordered deferred upon the date he returned to work--August 19, 2014. At his benefit rate of $270.66 per week, Petitioner Smith's entire permanent partial disability award was forfeited within three weeks of returning to work.38 ¶24 Under the deferral scheme, an employee's permanent partial disability award is not deferred upon his or her termination for misconduct--it is deferred immediately upon the return to work. Therefore, an employee could not "reap rewards in the form of disability payments" based upon a subsequent termination as the Attorney General suggests. As the deferral provision is written, the employer is encouraged to allow the injured worker to return to work only until the deferred award is exhausted. The deferral provision then incentivizes the employer to terminate the employee for misconduct--a very broadly defined term under the AWCA.39 So after re-employing the injured worker for only a short time, the employer pays no permanent partial disability benefits to an employee who was admittedly injured on the job and the employer may "legally" rid himself of the undesirable employee. Termination for misconduct becomes a second-stage defense to avoid paying an award for an admitted or adjudicated compensable injury that occurred in the course and scope of employment. ¶25 Permanent partial disability benefits, and workers' compensation benefits generally, are not "rewards" or punishment--these benefits replace something the employee lost for which the employer is liable. Workers' compensation is an administrative remedy that exists in lieu of other remedies at law. The AWCA, and its predecessor the Workers' Compensation Code,40 is based on exclusivity, meaning the employee relinquishes a common-law right to bring an action in district court against his or her employer41 while the employer relinquishes certain common-law defenses available in civil actions and is required to "secure compensation as provided under this act to its employees for compensable injuries without regard to fault."42 The deferral provision coupled with misconduct reinstates the concept of fault into a no-fault system and results in a forfeiture of benefits by the injured employee. ¶26 We also note that Section 45(C)(5)(c) provides that "[i]f the employee refuses an offer to return to his pre-injury or equivalent job, the permanent partial disability award shall continue to be deferred and shall be reduced by seventy percent (70%) of the employee's average weekly wage for each week he refuses to return to his pre-injury or equivalent job."43 But if the employee accepts the offer to return to his or her pre-injury job, the award is still deferred under § 45(C)(5). The statutory deferral scheme is intended to deny permanent partial disability benefits to the majority of injured employees by operation of law. The deferral scheme creates blanket immunity for employers with regard to payment of permanent partial disability benefits and punishes all employees who suffer compensable, admitted injuries.44 ¶27 In Torres we said that our "constitutional analysis must be based upon what the legislation actually accomplishes . . . ."45 In actuality, despite the fact the Commission continues to presume that an employee's loss of earning capacity is measured by the degree of physical disability sustained and is arbitrarily fixed by statute, the monetary award based on the physical disability rating to the employee's body becomes meaningless once the employee returns to work. An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reduction in future earning capacity, upending the entire purpose of the workers' compensation system, which is to compensate "for loss of earning power and disability to work occasioned by injuries to the body in the performance of ordinary labor." Evans & Assocs. Util. Servs., 2011 OK 81, ¶ 14, 264 P.3d 1190, 1195. Further, taking away an employee's permanent partial disability benefits because of misconduct--a term based on fault of the employee--is invalid in a no-fault system. The deferral provision of § 45(C)(5) tramples the due process rights of injured workers and is unconstitutional under Art. 2, § 7 of the Oklahoma Constitution.46 The Deferral of Permanent Partial Disability Benefits to a Subclass ofInjured Workers is an Unconstitutional Special Law in Violation of Art. 5,§ 59 of the Oklahoma Constitution ¶28 Section 46 of the AWCA presents additional constitutional problems. Section 46(C) makes the deferral provision of § 45(C)(5) applicable only to injuries to the body as a whole or "other cases."47 The deferral provision does not apply to injuries to scheduled members under § 46(A).48 Section 46(C) is a special law that creates a subclass of employees subject to differential treatment. ¶29 In Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, 5 P.3d 594, this Court said: "For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination. If there is neither a distinctive characteristic upon which a different treatment may reasonably be founded nor one which furnishes a practical and real basis for discrimination between the two groups within the class, the distinction becomes arbitrary and without relation to the subject matter."49 ¶30 Under the AWCA, the Legislature has arbitrarily determined that employees who suffer injuries to scheduled members and who receive permanent partial disability awards under § 46(A) are unable to return to work, and thus, entitled to receive the permanent partial disability award. But even an employee who suffers the total loss of use of a hand, for example, may in some circumstances be able to return to his or her pre-injury job. We find no valid reason for the differential treatment of injured employees under § 46(A) and § 46(C). Although the Legislature has the power to exclude classes of employees from coverage under the workers' compensation system generally, the Legislature is without power to vary the effect of a permanent partial disability award by excluding one group of claimants from benefits accorded other permanent partial disability recipients.50 The deferral of permanent partial disability benefits to a subclass of injured workers is an unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution. Conclusion ¶31 We conclude that scheduled members are exempt from the AMA Guides under the AWCA. We also hold that the permanent partial disability deferral provision of 85A O.S. Supp. 2013 § 45(C)(5) is an unconstitutional violation of due process under Art. 2, § 7.51 Sections 45(C)(5)(a-e) are invalid and stricken. The deferral of permanent partial disability benefits to a subclass of injured workers under 85A O.S. Supp. 2013 § 46(C) is an unconstitutional special law under Art. 5, § 59.52 Only that portion of § 46(C) that makes the deferral provision applicable to injuries to the body as a whole or "other cases" is invalid. Any definitional provisions found in 85A O.S. Supp. 2013 § 2, as discussed herein, are invalid to the extent they are inconsistent with the views expressed today. On remand, the Commission, through its ALJs, shall take all action necessary to implement today's pronouncement. WORKERS' COMPENSATION COMMISSION ORDERS IN THE ABOVE-STYLED AND NUMBERED CAUSES VACATED; ABOVE-STYLED ANDNUMBERED CAUSES REVERSED AND REMANDED FOR PROCEEDINGSCONSISTENT WITH TODAY'S PRONOUNCEMENT ¶32 Reif, C.J., Combs, V.C.J., Kauger, Edmondson and Gurich, JJ., concur. ¶33 Watt and Colbert (by separate writing with whom Watt, J., joins), JJ., concur in part and dissent in part. ¶34 Winchester and Taylor, JJ., dissent. FOOTNOTES 1 In Case No. 113,811, Damien Lequint Smith v. Baze Corp. Investments, Inc. and Compsource Mutual Ins. Co., the Claimant injured his knee on February 26, 2014. The Employer admitted Claimant's injury was compensable. Claimant received temporary total disability benefits and had surgery to repair a torn meniscus. Claimant reached maximum medical improvement on August 19, 2014, and returned to his pre-injury position at the same wages. Claimant then sought and was awarded permanent partial disability benefits for a 1% impairment to the body as a whole. The $947.31 permanent partial disability award was deferred pursuant to 85A O.S. Supp. 2013 § 45(C)(5). After the Workers' Compensation Commission affirmed the decision, Claimant appealed to this Court, and we retained the case. We held oral argument in Case No. 113,811 on September 30, 2015. In Case No. 113,941, Jerry D. Hoffman v. Tulsa Gas Technologies, and Commerce & Industry Ins. Co., the Claimant injured his knee on July 30, 2014. The Employer admitted Claimant's injury was compensable. Claimant received temporary compensation and medical treatment. Claimant reached maximum medical improvement on October 6, 2014, and returned to his pre-injury position at the same wages. Claimant then sought and was awarded permanent partial disability benefits for a 2% impairment to the body as a whole. The $2,261.00 permanent partial disability award was deferred pursuant to 85A O.S. Supp. 2013 § 45(C)(5). After the Workers' Compensation Commission affirmed the decision, Claimant appealed to this Court, and we retained the case. On June 15, 2015, we stayed this case by agreement of the parties until a decision issues in the above-styled and numbered causes. The stay in this case, Case No. 113,941, is lifted. In Case No. 114,161, Delano Majors v. Accent Staffing Inc., Compsource Mutual Ins. Co. and The Workers' Compensation Commission, the Claimant injured his hand on March 31, 2014. The Employer admitted Claimant's injury was compensable. Claimant received temporary total disability benefits and had surgery on his wrist. Claimant was last seen by his treating physician on September 14, 2014, wherein the doctor ordered Claimant to return to work only on an as needed basis and released Claimant without restriction. Claimant has not worked since being released. Claimant then sought and was awarded permanent partial disability benefits for a 3% impairment to the body as a whole. Claimant's $3,369.03 permanent partial disability award was not deferred pursuant to 85A O.S. Supp. 2013 § 45(C)(5). After the Workers' Compensation Commission affirmed the decision, Claimant appealed to this Court, arguing that the Commission improperly used the AMA Guides to rate the injury to his hand and that the Commission improperly converted the injury to his hand to the body as a whole. We retained the case. 2 "[F]or purposes of the Multiple Injury Trust Fund only, 'scheduled member' [also] means hearing impairment." 85A O.S. Supp. 2013 § 2(40). 3 85A O.S. Supp. 2013 § 45(C)(1). Although the AMA Guides is a method to evaluate an injury to a scheduled member, a permanent impairment rating to a scheduled member need not conform to the AMA Guides, and a medical report should not be discounted based solely on noncompliance with the AMA Guides. 4 While we accept Respondent's concession, we nevertheless address the issue as this Court is the final arbiter of the meaning of the statute. see Tucker v. ADG, Inc., 2004 OK 71, ¶ 12, 102 P.3d 660, 665 ("'Oklahoma case law has long allowed admissions in the brief to be regarded as a supplement to the appellate record.'") (quoting Brennen v. Aston, 2003 OK 91, n.3, 84 P.3d 99, 100 n.3). 5 The parties agree that the AMA Guides 6th Edition is the most current version of the AMA Guides. Claimants in Case Nos. 113,898 and 113,811 spend a considerable amount of time in the briefs discussing the problems with the drafting and substance of the 6th Edition, in particular, its alleged faulty quantification and low impairment rating system. Specifically, Claimants point to a congressional hearing held in 2010 wherein the Congressional Subcommittee on Workforce Protection took testimony regarding the use of the AMA Guides 6th Edition in state workers' compensation systems. Because we find the AMA Guides do not apply in this case, we need not address Claimant's constitutional arguments regarding the AMA Guides 6th Edition. However, we note that the records in these cases are wholly deficient for this Court to consider any of the constitutional issues raised regarding the AMA Guides 6th Edition. No portion of the AMA Guides 6th Edition was included in any record. The only party to include any portion of the AMA Guides 6th Edition was the Amicus Curiae Oklahoma Coalition for Workers' Rights in Case No. 113,811. None of the records in these cases clearly provide the difference in rating had a different edition of the Guides been used. The 6th Edition, which was adopted in 2007, of the Guides states that "[i]n this edition there is a paradigm shift, which adopts a contemporary model of disablement; it is simplified, functionally based, and internally consistent to the fullest extent possible." Brief of the Oklahoma Coalition For Workers' Rights, Case No. 113,811, Ex. A at 5. The records in these cases do not indicate whether the Physician's Advisory Committee has, since 2007, evaluated and weighed in on this "paradigm shift." Although reference is made to the 2010 Congressional hearing on the 6th Edition, no transcript of such is included in our record. Additionally, the records in these cases do not contain any semblance of a Daubert challenge to the 6th Edition through expert testimony. See 85A O.S. Supp. 2013 § 72(D); Scruggs v. Edwards, 2007 OK 6, ¶ 9, 154 P.3d 1257, 1262. 6 See 85A O.S. Supp. 2013 § 45(C)(1) ("A physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's 'Guides to the Evaluation of Permanent Impairment.'") (emphasis added); 85 O.S. 2011 § 333(A) ("A physician's opinion of the nature and extent of permanent partial impairment to parts of the body other than scheduled members must be based solely on criteria established by the American Medical Association's 'Guides to the Evaluation of Permanent Impairment,' Fifth Edition, or any subsequent edition approved by the Administrator after public hearing and review by the Physician Advisory Committee, hereinafter referred to as 'Guides.'") (emphasis added); 85 O.S. Supp. 1996 § 3(11) ("These officially adopted guides or modifications thereto or alternative system or method of evaluating permanent impairment or modifications thereto shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides or alternative to said guides.") (emphasis added); 85 O.S. Supp. 1994 § 3(11) ("These officially adopted guides or modifications thereto shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides.") (emphasis added); 85 O.S. Supp. 1985 § 3(11) ("These officially adopted guides shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides.") (emphasis added); 85 O.S. Supp. 1977 § 3(11) ("These officially adopted guides shall be the basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member loss.") (emphasis added). 7 see B.F. Goodrich v. Hilton, 1981 OK 114, ¶ 5, 634 P.2d 1308, 1310 (holding that "a plain reading of the statute reveal[ed] that the Guides shall be the basis for testimony and conclusions concerning permanent impairment, with the exception" of scheduled members in 85 O.S. Supp. 1978 § 22(3)). 8 Special Indem. Fund v. Figgins, 1992 OK 59, ¶ 8, 831 P.2d 1379, 1382 (emphasis added). 9 As mentioned above, all of the respective injuries to the petitioners in the above-styled and numbered companion cases were injuries to scheduled members, specifically the legs and hand. see supra note 1. If the AMA Guides do not apply to scheduled members, neither do the conversion tables to the body as whole. 10 85A O.S. Supp. 2013 § 46(A) (emphasis added). 11 1915 Okla. Sess. Laws, ch. 246, art. 2, § 6. 12 Id. 13 Previous versions of the statute provided: Loss of Use: Permanent loss of use of a thumb, finger, toe, arm, hand, foot, leg or eye shall be considered as the equivalent of the loss of such thumb, finger, toe, hand, arm, foot, leg or eye. For the permanent partial loss of use of a member, loss of hearing or sight of an eye, seventy percent (70%) of the employee's average weekly wage during that portion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye which the partial loss of use thereof bears to the total loss of use of such member, loss of hearing or sight of an eye. 85 O.S. 2011 § 333(E). 14 1915 Okla. Sess. Laws, ch. 246, art. 2, § 6. 15 Figgins, 1992 OK 59, ¶ 8, 831 P.2d at 1382. 16 The ALJs shall also allow for the admission of additional medical evidence if requested by the parties. 17 85A O.S. Supp. 2013 § 45(C)(5) (emphasis added). 18 Attorney General's Brief on the Merits of the Constitutional Claims, Case No. 113,898, at 16. The Solicitor General argued at oral argument in Case No. 113,898 that the overriding legislative intent of the AWCA was to align permanent partial disability benefits with the other three types of benefits to create a disability-based regime. Since its inception, the system has been designed to restore loss of earning capacity through four categories of benefits: permanent total disability, temporary total disability, temporary partial disability, and permanent partial disability. Temporary total, temporary partial, and permanent total disability benefits have been, and continue to be, compensated based on an injured employee's disability, meaning "incapacity or loss of function in the physical or medical sense" established by medical evidence, and the injured employee's "inability to earn wages" as demonstrated by nonmedical evidence with regard to the employee's "employment situation." Gray v. Natkin Contracting, 2001 OK 73, ¶¶ 14-15, 44 P.3d 547, 551. 19 From 1915 to 1941, a claimant who suffered an injury classified as an "other case" was required to present evidence of loss of wage-earning capacity to be entitled to a permanent partial disability award. Such provision was amended in 1941 to "arbitrarily fix[] an employee's loss of earning capacity measured by his physical disability or by the degree of disability sustained." Ford v. Nellie B. Mining Co., 1953 OK 150, ¶ 9, 255 P.2d 504, 506. 20 85A O.S. Supp. 2013 § 2(16). The term "disability" has not previously been statutorily defined, but this Court has measured disability "by a worker's capacity to perform 'ordinary manual or mechanical labor.' An injury to a specific, scheduled member of the body (a classified disability) was measured by the number of weeks in the member schedule, while one to an 'unclassified part of the body' fell under the 'other cases' clause of § 22 and was compensated on the basis of percentage disability to the body as a whole." Farm Fresh Inc. v. Bucek, 1995 OK 44, ¶ 8, 895 P.2d 719, 722. 21 In 1977, significant amendments were made to the to the workers' compensation system. Notably, coverage was extended to nearly all Oklahoma employees, not just to those in hazardous employment, and a "mixed impairment-related and disability-based benefits regime" was introduced. Bucek, 1995 OK 44, ¶ 9, 895 P.2d at 722. The disability-based benefits regime encompassed permanent total disability benefits, temporary partial disability benefits, and temporary total disability benefits. Id. ¶ 10, 895 P.2d at 722. The impairment-related benefits regime encompassed permanent partial disability benefits, defined to mean "permanent disability which is less than total and [is] equal to or the same as permanent impairment." 85 O.S. Supp. 1977 § (3)(13) (emphasis added). This change in definition "introduce[d] a new and more specific concept for evaluating permanent partial disability" making it equal to permanent impairment or loss of bodily function. Bucek, 1995 OK 44, ¶ 11, 895 P.2d at 723. 22 Okla. Const. art. 2, § 7. 23 Crownover v. Keel, 2015 OK 35, n.5, 357 P.3d 470, 474 n.5. The federal due process clause provides: [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1. Today's decision with regard to Art. 2, § 7, of the Oklahoma Constitution is based on Oklahoma law, which provides bona fide, separate, adequate and independent grounds for our decision. see Crownover, 2015 OK 35, n.5, 357 P.3d at 474 n.5. 24 Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, ¶ 15, 270 P.3d 133, 137. 25 Wolfenbarger v. Hennessee, 1974 OK 38, ¶ 12, 520 P.2d 809, 812-13. 26 85A O.S. Supp. 2013 § 45(C)(1). 27 85A O.S. Supp. 2013 § 45(C)(4). 28 85A O.S. Supp. 2013 § 2(10). 29 85A O.S. Supp. 2013 § 12. 30 85A O.S. Supp. 2013 § 10(A). 31 Record on Appeal, Case No. 113,898, at 20 (emphasis added). 32 "The Legislature is confined to mandating what facts must be adjudged. It may neither predetermine adjudicative facts nor direct that their presence or absence be found from any proof before a tribunal." Yocum, 2005 OK 27, ¶ 14, 130 P.3d at 221-22. 33 1 Modern Workers' Compensation § 306:24. 34 In Torres, we addressed a due process challenge to 85A O.S. Supp. 2013 § 2(14), which required an employee to have worked a continuous 180-day period before receiving cumulative trauma benefits. In that case we said: Our more modern expressions of this historically recognized constitutional limitation on police power have explained that a court must examine whether legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest. This analysis requires an adjudication whether a legitimate State interest exists and whether it is rationally related to the legislation. Torres, 2016 OK 20, ¶ 27, ___P.3d___ (emphasis added). 35 Petitioner Hoffman also forfeited his permanent partial disability award by simply returning to work. see supra note 1. 36 Petitioner Smith did not dispute this was his second infraction of company policy regarding improper use of a company vehicle. 37 After attorney's fees were deducted, Petitioner Smith's total award was $757.84. 38 Petitioner's Brief in Chief, Case No. 113,811, at 17. We again note that Petitioner Smith's permanent partial disability award was also exhausted well before the hearing on permanent partial disability was held in January of 2015. 39 85A O.S. Supp. 2013 § 2(30). "Misconduct" shall include the following: a. unexplained absenteeism or tardiness,b. willful or wanton indifference to or neglect of the duties required,c. willful or wanton breach of any duty required by the employer,d. the mismanagement of a position of employment by action or inaction,e. actions or omissions that place in jeopardy the health, life, or property of self or others,f. dishonesty,g. wrongdoing,h. violation of a law, ori. a violation of a policy or rule adopted to ensure orderly work or the safety of self or others[.] 40 85 O.S. 2011 § 301 et seq. 41 85A O.S. Supp. 2013 § 5. 42 85A O.S. Supp. 2013 § 35(A)(1) (emphasis added). 43 85A O.S. Supp. 2013 § 45(C)(5)(c) (emphasis added). Presumably, the employer decides whether the job offered is an "equivalent job." 44 The Attorney General also argues that the deferral provision encourages employers to retain injured employees. But that argument is not well taken because as the deferral provision is written, a termination of any kind can substantially reduce the employer's financial liability. Section 45(C)(5)(b) provides that if the employer terminates an employee for a reason not meeting the definition of misconduct, the only amount to be collected by the employee is the remainder of the permanent partial disability award paid to the employee in a lump sum. In some cases this "lump sum" could be as little as $323.00, which is the average weekly wage. 45 Torres, 2016 OK 20, ¶ 21. ___P.3d___. 46 We also note that in Petitioner Smith's case, Case No. 113,811, the ALJ found that based on the "apparent intent of the legislature, and the expressed intent of the Commission," "the AMA Guides, would be a valid method" to evaluate an injury to a scheduled member and that an injury to a scheduled member should be measured to the body as whole." The ALJ relied specifically on a "Notice Regarding Evaluation of Permanent Impairment" issued on April 16, 2014, by the Executive Director of the Commission. Such notice directs "Workers' Compensation Insurance Carriers, Self-Insured Employers, Group Self-Insurance Associations, CompSource Oklahoma, Third-Party Administrators, Injured Workers, Attorneys, [and] Other Interested Persons" to rate permanent partial loss of scheduled members under the AMA Guides. No public notice or comment period was given and no hearing was held before the issuance of this particular Notice. Since the creation of the Commission, the Executive Director has issued approximately fourteen such notices on a variety of subjects. Neither the Commission rules nor Title 85A give the Executive Director the authority to issue such notices, and only the appellate courts of this State have the authority to render a binding interpretation of a state statute. The issuance of this Notice lacked any semblance of the procedural due process protections required by Art. 2, § 7 of the Oklahoma Constitution and such action was clearly in excess of the Commission's jurisdiction. 47 Section 46(C) provides that "[i]n cases in which the Commission finds an injury to a part of the body not specifically covered by the foregoing provisions of this section, the employee may be entitled to compensation for permanent partial disability." 85A O.S. Supp. 2013 § 46(C) (emphasis added). 48 Section 46(A) provides that "[a]n injured employee who is entitled to receive permanent partial disability compensation under Section 45 of this act shall receive compensation for each part of the body in accordance with the number of weeks for the scheduled loss set forth below." 85A O.S. Supp. 2013 § 46(A) (emphasis added). 49 Grant, 2000 OK 41, ¶ 10, 5 P.3d at 598 (emphasis added) (internal citations omitted). In Grant, the claimant was injured while working for her employer Goodyear Tire & Rubber Company. The Claimant qualified for the maximum rate of temporary total disability compensation, but Goodyear paid the claimant her regular wages, which were at a higher rate than that required by statute. Goodyear, who was self-insured, requested credit for the overpayment of temporary total disability pursuant to 85 O.S. Supp. 1999 § 41.1. Although subsection (A) of § 41.1 did not allow an employer or insurance carrier to receive a credit or deduct "from the amount of the award for permanent or partial permanent disability any amounts paid for temporary total disability," subsection (B) allowed a self-insured employer to do so. Grant, 2000 OK 41, ¶ 2, 5 P.3d at 596. In its analysis, this Court first distinguished between a general law and a special law: "A statute is a general law if it relates to persons or things as a class rather than relating to particular persons or things," and "[a] statute is a special law where a part of the entire class of similarly affected persons is separated for different treatment." Id. ¶ 5, 5 P.3d at 597. The Court found that subsection (B) of § 41.4 was a special law because it created a subclass of employers--those who were self-insured and who were allowed to receive credit for overpayment against any permanent disability owed. Id. ¶ 7, 5 P.3d at 596. The Court then determined whether subsection (B) of § 41.1, the special law, was reasonably and substantially related to a valid legislative objective. The Court observed: The Constitution does not prohibit special laws inflexibly and always. It permits them when there are special evils with which existing general laws are incompetent to cope. . . . If the evil to be corrected can be seen to be merely fanciful, the injustice or the wrong illusory, the courts may intervene and strike the special statute down. Id., ¶ 9, 5 P.3d at 598. The Court found no valid reason to differentiate between employers who carry workers' compensation insurance and those who were self-insured, and no valid reason to differentiate in the treatment of employees whose employers carry workers' compensation insurance and employees whose employers were self-insured. The Court held that subsection (B) of § 41.1 was an impermissible special law that violated Art. 5, § 59 of the Oklahoma Constitution. Id. ¶ 12, 5 P.3d at 598. 50 Glasco v. State ex rel. Okla. Dep't of Corrs., 2008 OK 65, ¶ 4, 188 P.3d 177, 191 (Opala, J., dissenting). 51 Okla. Const. art. 2, § 7. Section 4(A) of Title 85A provides: "If any part of this act be decided by the courts to be unconstitutional or invalid, the same shall not affect the validity of this act as a whole, or any part thereof other than the part so decided to be unconstitutional or invalid." 85A O.S. Supp. 2013 § 4(A). 52 Okla. Const. art. 5, § 59. Colbert, J., concurring in part, dissenting in part with whom Watt, J., joins. ¶1 I agree that scheduled members are exempt from the AMA Guides, Sections 45(C)(5)(a-e) are an unconstitutional violation of due process under Art. 2, § 7, and Section 46(C) is an unconstitutional special law under Art. 5, § 59. But, I write separately to shed light on the remaining ambiguities that exist in this Court's piecemeal attempt to cure the Legislature's unconstitutional scheme. ¶2 The majority opinion intimates-without expressly stating-that the Legislature's enactment of the AWCA has transmogrified the previous workers' compensation scheme from a no-fault system into a fault system. Op. at ¶ 25. In so concluding, the majority strikes the expressed provisions related to deferral and misconduct found in § 45(C)(5)(a-e), but ignores the other interrelated provisions found in the AWCA-namely, §§ 2(16), (34) and (37). ¶3 The Oklahoma workers' compensation system, from its inception, was designed to compensate injured employees solely on the basis of loss of function, as expressed in terms of "impairment," i.e. permanent total disability or permanent partial disability (PPD), regardless of the employee's industrial performance.1 But, since the AWCA's enactment, an employee's compensation is now wholly dependent upon the impact such impairment has on the employee's ability to resume employment. It is the impact of the impairment that drives whether or not the employee meets the newly defined definition of "disability." ¶4 In striking Sections 45(C)(5)(a-e), but leaving intact the remaining interrelated provisions, the majority exacerbates the ambiguities and inconsistencies found in the AWCA. As it stands, today's pronouncement does nothing more than prohibit the employer from deferring the payment of a PPD award. But, before an employee may receive a PPD award, that employee must have a PPD as defined by the AWCA. ¶5 Consider the remaining interrelated sections 2(16), (34) and (37). Those provisions define "disability" as an employee's incapacity to earn at least one hundred percent of the employee's pre-injury wages and renders any PPD determination contingent upon the employee's inability to return to "his or her pre-injury or equivalent job."2 Id. at § 2(34). That is, despite a treating physician's determination the employee has reached maximum medical improvement (MMI), is released to and has in fact resumed employment, but has experienced a "loss of a portion of the total physiological capabilities," i.e. impairment rating,- as required in § 2(33) and acknowledged in § 2(34)-the employee is nonetheless not "permanently partially disabled" as defined under the AWCA. See Id. at § 2(34). ¶6 Obviously, this ambiguity has numerous unintended consequences. For instance, the remaining provisions of section 45(C) contemplate compensating an employee for a "permanent partial disability . . . as defined in this act." Id. at § 45(C)1. Again, the Act narrowly defines "PPD" as an employee's inability to resume his or her pre-injury or equivalent job. Id. at § 2(34). And, subsection 4 prescribes the computation for compensation only "in cases of permanent partial disability . . . ."3 But, because section 2(34) continues to limit a PPD determination to only those employees who are "prevent[ed] . . . from returning to his or her pre-injury or equivalent job" regardless of impairment, an employer may successfully defend against an employee's claim for a PPD award when the injured employee has resumed his or her pre-injury or equivalent job. That unintended consequence is no different than the deprivation an employee suffered when the unconstitutional deferral provision was applied to his or her claim. ¶7 As I have previously stated, the provisions of the AWCA, like its predecessor, are clearly interrelated. The above-referenced provisions are merely a glimpse of the parade of horribles the majority creates in its piecemeal approach in remedying the AWCA's unconstitutional provisions. If one provision is constitutionally offensive, so too are its interrelated provisions. ¶8 I would therefore amend the majority's opinion to read: "And to the extent that any other provision of the AWCA, as applied, reinstates the concept of fault into a no-fault system and is inconsistent with the views expressed today, those offensive provisions must be declared unconstitutional." Further, just as the majority strikes sections 45(C)(5)(a-e) as constitutionally infirm, I would similarly strike sections 2(16) and the offending portions of (34)4 as those provisions are interrelated.5 Anything short of those amendments renders today's pronouncement an illusory victory for claimants who find themselves permanently partially impaired should they resume their pre-injury or equivalent jobs. Newly Proposed Section 34: "Permanent partial disability" means a permanent disability or loss of use after maximum medical improvement has been reached which prevents the injured employee, who [and the employee] has been released to return to work by the treating physician, from returning to his or her pre-injury or equivalent job. All evaluations of permanent partial disability must be supported by objective findings. FOOTNOTES 1 It should be noted that the term "impairment" originates from the American Medical Association guides. 2 The AWCA now defines "disability" as the incapacity because of compensable injury to earn, in the same or any other employment, substantially the same amount of wages the employee was receiving at the time of the compensable injury. Id. at § 2(16). The phrase "the same or any other employment" is defined further in § 2(37) and states, a "pre-injury or equivalent job" means the job that the claimant was working for the employer at the time the injury occurred or any other employment offered by the claimant's employer that pays at least one hundred percent (100%) of the employee's average weekly wage. The AWCA goes on to limit a "permanent partial disability" to a permanent disability or loss of use after maximum medical improvement has been reached which prevents the injured employee, who has been released to return to work by the treating physician, from returning to his or her pre-injury or equivalent job. All evaluations of permanent partial disability must be supported by objective findings. Id. at § 2(34). 3 "[T]he compensation shall be seventy percent (70%) of the employee's average weekly wage, not to exceed Three Hundred Twenty-three Dollars ($323.00) per week, for a term not to exceed a total of three hundred fifty (350) weeks for the body as a whole." 4 See Conaghan v. Riverfield Country Day Sch., 2007 OK 60 (where this Court previously struck constitutionally infirm provisions while leaving the remaining provisions intact). 5 Striking section 2(16) would not create an additional ambiguity and is arguably superfluous. The remaining provision, section 2(33) "permanent disability" is applicable to both PTD and PPD determinations after an employee has reached MMI. That section defines "permanent disability" as the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the current edition of the American Medical Association guides to the evaluation of impairment, if the impairment is contained therein.

53743759-391f-4864-9015-586c28ecc94c

Torres v. Seaboard Foods, LLC

oklahoma

Oklahoma Supreme Court

TORRES v. SEABOARD FOODS, LLC2016 OK 20Case Number: 113649Decided: 03/01/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. YAUMARY CONCEPCION TORRES, Petitioner,v.SEABOARD FOODS, LLC, AMERICAN ZURICH INS. CO., and THE WORKERS' COMPENSATION COMMISSION, Respondents. APPEAL FROM THE OKLAHOMA WORKERS' COMPENSATION COMMISSION ¶0 Petitioner (employee) filed a workers' compensation claim for a cumulative-trauma injury pursuant to the Administrative Workers' Compensation Act, Oklahoma Statutes, Title 85A, Section 2(14). The administrative law judge, T. Shane Curtin, determined employee was barred from obtaining any workers' compensation remedy because when she filed her claim she had not worked a continuous 180-day period for her employer. The administrative order was appealed to the Workers' Compensation Commission, and the Commission affirmed the order of the administrative judge. Employee appealed the Commission's order to the Supreme Court and the Court retained the appeal. We hold: 85A O.S. § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, when applied to employee because the statute's overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers' compensation fraud and (2) decreasing employers' costs. ORDER OF WORKERS' COMPENSATION COMMISSION REVERSED;PROCEEDING REMANDED FOR FURTHER PROCEEDINGS Bob Burke, Oklahoma City, Oklahoma, for Petitioner.Juan Maldonado, Oklahoma City, Oklahoma, for Petitioner.Connie M. Wolfe, Connie M. Wolfe & Associates, P.L.L.C., Oklahoma City, Oklahoma, for Respondent, Seaboard Foods, L.L.C.V. Glenn Coffee and Denise K. Davick, Oklahoma City, Oklahoma, for Amicus Curiae, State Chamber of Oklahoma. EDMONDSON, J. I. Introduction ¶1 Petitioner, a former employee, filed a workers' compensation claim and alleged she was injured on-the-job and needed surgery. Her former employer (employer) argued that she was barred from receiving workers' compensation because she alleged a cumulative-trauma injury and she had not worked a continuous 180-day period for that employer. The administrative law judge denied her claim because she had not worked the 180-day period. The Workers' Compensation Commission affirmed the order of the administrative judge. ¶2 Employer also argues on appeal petitioner has no right to file either a workers' compensation claim or seek a common-law remedy in a District Court. Employer asserts petitioner has no legal right or remedy to receive any type of compensation or medical care from her employer in any form. Employer argues petitioner has no right to an opportunity to prove her claim of injury before any court or any administrative agency. Employee argues her employer is making an unconstitutional application of workers' compensation statutes. ¶3 Because the employee challenged the constitutionality of 85A O.S. §§ 2(14) & 5, this Court issued an order providing the Oklahoma Attorney General, Speaker of the House of Representatives, and the President Pro Tempore an opportunity to intervene by filing entries of appearance herein and briefing issues. They did not intervene and file briefs. The amicus curiae, State Chamber, filed a brief in support of the constitutionality of the challenged statutes. ¶4 Several decades of court precedent from both the U. S. Supreme Court and the Oklahoma Supreme Court on the subject of how state and federal statutes interact with State and Federal Due Process constitutional provisions clearly show an unconstitutional application of a workers' compensation statute by employer in the matter before the Court. We hold 85A O.S. § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, when applied to employee because the statute's overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers' compensation fraud and (2) decreasing employers' costs. II. Workers' Compensation Statutes Raised by the Parties ¶5 Two workers' compensation statutes are used by employer in support of its argument: 85A O. S. Supp. 2013 § 2(14) & § 5. The first defines cumulative trauma based upon repetitive physical activities and adds a condition requiring an employee to have completed one hundred eighty (180) days of continuous employment. 14. "Cumulative trauma" means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee's course and scope of employment. Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer; 85A O.S.Supp. 2013 § 2 (14). Employer argues that two reasons exist for an employee to work 180 continuous days as a condition to receive workers' compensation. The first, "It is reasonable to conceive that a worker who has worked for a significant period of time is more likely to have sustained an injury, while a worker who works for a shorter period did not. . . [and the 180-day requirement] places reasonable qualifications on what a compensable injury is, and what it is not."1 This argument may be reduced to the simple statement that the Legislature's role includes determining what constitutes a compensable injury. ¶6 The second argument is that preventing fraud and controlling economic concerns are legitimate State interests, and the Legislature has a role in preventing fraud and advancing economic interests by decreasing employers' costs. The brief of amicus curiae provides rankings from different states based upon costs for workers' compensation insurance premiums, but it does so using a rule-prohibited Brandeis brief method.2 However, amicus curiae's argument supporting a legislative decrease in employers' costs as a legitimate State interest may be considered apart from the Brandeis brief facts. This is so because employer's argument concerning employers' costs is sufficiently broad to fairly include employers' costs associated with workers' compensation insurance. ¶7 Employer makes the following argument: This limitation bears a rational relationship to a legitimate State interest. Preventing fraud is a legitimate state interest. Placing a requirement that an employee work for a period of time before qualifying for a compensable injury ensures that frivolous claims and fraudulent allegations are controlled. Respondent's Answer Brief, at pp. 5-6. Amicus curiae similarly argues that the 180-day period is a "durational requirement . . . necessary to define the bounds of the injury . . . [and the] exposure requirement merely serves to ferret out fraudulent claims and ensure that the injury claimed is fairly attributable to the period of employment."3 ¶8 Employee recognizes that legitimate State interests include legislation to prevent fraud and advance economic interests. Employee also recognizes the Legislature's role in creating workers' compensation laws. Employee argues that § 2(14) class of employees who work less than 180 days is a statutory class that violates the Due Process section of the Oklahoma Constitution, Okla. Const. Art. 2 § 7.4 ¶9 Employer also argues that employee is barred from bringing a District Court action against her former employer. Employer relies upon 85A O.S. Supp. 2013 § 5.5 Paragraph "C" of § 5 states: "The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act." Employer argues that although employee is not eligible to bring a workers' compensation claim because of the 180-day requirement of § 2, employee is also barred from bringing an action in a District Court. ¶10 Employee argues that when the workers' compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker's employer and the worker gained more certain statutory compensation but the compensation was less in amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was less and fixed by statute.6 Employee argues that statutorily barring both a workers' compensation remedy and a District Court remedy violates the grand bargain and the Oklahoma Constitution. She argues for a right to proceed against her employer by an action filed in a District Court. ¶11 This Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature's intent expressed in any statute the Legislature creates.7 If the language of the statute is plain and unambiguous, the legislative intent is deemed to be expressed by the statutory language.8 Rules of construction are applied to determine legislative intent when the statutory language is ambiguous.9 We first examine § 2(14) and conclude its language is not ambiguous, and apply the meaning of § 2 prior to examining § 5. ¶12 The employee in this controversy alleges a cumulative trauma injury occurred, in fact, during less than 180 continuous days of employment. Respondent and amicus curiae do not assert that § 2 (14) is a legislative determination that a cumulative injury does not, or cannot, in fact occur during the first 180 days of a person's employment. They agree that cumulative trauma is an injury "caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment." The brief of amicus curiae emphasizes this language to show that cumulative injury occurs during a period of time. ¶13 Respondent and amicus curiae appear to agree that the statutory language would not prohibit an employee from filing a cumulative trauma claim on the 181st day of employment, where the claim would be based upon repetitive and cumulative trauma occurring for a period of time during the previous 180 days of employment. The language requiring 180 days of employment is thus not construed as defining the nature of an injury, but a condition required to file a claim against an employer in addition to the employee having suffered an injury. As explained by amicus curiae, "the Legislature . . . delineated a particular number of days that an individual must be employed prior to filing a claim for an injury that was sustained by 'repetitive physical activities,'" or the "legislative state purpose" of the 180-day requirement is that "an individual be employed for a certain length of time prior to subjecting the employer to a claim for a repetitive injury." ¶14 Respondent and amicus curiae also characterize the 180-day employment language in § 2(14) as one element defining "cumulative trauma." Construing the language as part of a definition for cumulative trauma versus viewing it as a condition for filing a claim does not help employer's legal position. Regardless whether the language is part of the definition of a cumulative trauma or a condition for filing a claim in addition to defining trauma based upon repetitive injury, the statute is determining as a matter of law a class of employees who are prohibited from filing a workers' compensation claim although they may have suffered, in fact, a repetitive injury arising out of the course and scope of employment.10 The language in § 2(14) cannot be read as creating an irrebutable presumption that no cumulative trauma repetitive injury can occur, as a matter of fact, during the 180-day period.11 ¶15 We agree with respondent that § 2 (14) does not define a cumulative trauma as an injury which has necessarily been repeated every day for 180 days. Section § 2(14) clearly imposes a duration-of-employment condition as a necessary predicate for filing a cumulative trauma workers' compensation claim. ¶16 The language of § 2(14) creates two classes of employees alleging a cumulative trauma injury. The first class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who may file a claim for compensation on or after the 181st day of continuous employment. The second class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who are barred by § 2 (14) from filing a workers' compensation claim because they have not completed 180 days of continuous employment. Employee alleges she is in this latter class of employees, and that the duration-of-employment predicate for filing a workers' compensation claim in § 2(14) is unconstitutional because she is an injured worker innocent of the evil that § 2(14) was designed to address. III. Employee's Burden to Show Unconstitutionality ¶17 A constitutional analysis begins with the well-known judicial recognition that the Oklahoma Legislature is constitutionally vested by Article 5 § 3612 of our Constitution with a supreme legislative power extending to all rightful subjects,13 and the presumed constitutionality of a legislative enactment is rebutted only when either the State Constitution or federal law prohibits that enactment.14 When this Court examines a legislative enactment it tries to construe and apply it in a manner that avoids conflict with our Constitution and give the enactment the force of law.15 The burden to show the presence of a constitutional flaw in a statute is on the party who asserts its unconstitutionality.16 A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the statute17 with respect to a party in the controversy who is aggrieved by application of the challenged statute.18 IV. Employer's Reliance on United States R. R. Retirement Bd. v. Fritz. ¶18 Respondent and amicus curiae argue a legislative body need not state its reason for creating legislation and a legislative right or remedy is solely within the discretion of the legislative body. They conclude these principles make employee's claims without merit. We address this argument first because if they are correct then their argument would be outcome determinative on the constitutional issues raised by the employee. However, as we explain, we conclude their argument is insufficient. ¶19 Employer relies upon the U.S. Supreme Court opinion in United States R. R. Retirement Bd. v. Fritz,19 for the principles that (1) a legislative body does not need to state its reasons for creating a statute, and (2) when the right involved is purely a statutory benefit such as a railroad retirement benefit, a benefit within the legislative grace of Congress, as in United States R. R. Retirement Bd., the proper decision-maker for drawing the line, or creating the classification is a legislative body. Employer expands upon this latter principle and argues that the Legislature has the power to determine what type of injury "qualifies as [a] compensable injury . . . The fact that an employee working 120 days falls on one side of the line and an employee working 180 days falls on the other side is not relevant."20 ¶20 Amicus curiae makes a similar argument explaining that the Legislature has "the authority to prescribe rights and remedies for addressing occupational injuries," and quotes Adams v. Iten Biscuit Co.,21 for the proposition that the creation of workers' compensation statutes are within the police power of the Legislature. While this Court agrees with United States R. R. Retirement Bd., and its principles, our agreement does not lead to the conclusion of respondent and amicus curiae that the challenged statutes must necessarily be constitutional. ¶21 Addressing the first cited principle from United States R. R. Retirement Bd., we agree the Legislature is not required to explain its reasons for creating a statute or expressly state that it has a particular intent when a crafting legislation. But this Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature's intent expressed in any statute the Legislature creates.22 In cases not involving the constitutionality of a statute, a court is required to determine legislative intent and the meaning of the statutory language and then apply that meaning to the issues in controversy.23 While language indicating legislative intent informs and assists a court with determining what a legislature is attempting to accomplish by legislation, a court's constitutional analysis must be based upon what the legislation actually accomplishes by that which is created by the statute, and not by what a legislature states it is accomplishing. Obvious examples include, whether a payment is a "tax" or a "license fee" is not determined by the name given it by legislation,24 a gift of public funds to a private entity for a nonpublic purpose may not be made constitutional by legislation stating that the transaction is something other than a prohibited gift,25 and legislation collecting funds from the public as part of a tax code are State funds although legislation states they are not funds belonging to the State.26 These examples are not novel and reflect the long-recognized principle that a court's constitutional analysis of a statute is based upon what the statute actually accomplishes and not solely by a characterization given to the statute by a legislative body.27 Parties in a controversy advocate legal positions relating to the scope or application of legislation. A court's function requires it to examine and adjudicate that issue regardless whether the Legislature has expressly articulated its reasons for creating a statute, and when the Legislature has stated its reasons the Court must examine them in relation to any constitutional provision raised by any party in the controversy. ¶22 Addressing the second cited principle from United States R. R. Retirement Bd., and as we explain more fully herein, an argument which relies on the power of a legislative body to create or abolish statutory rights and remedies as proof that a statutory classification is rational, is an argument that not only contains a fallacy28 or an insufficient generality,29 but is also historically-discredited insufficient legal reasoning, including in circumstances where a legislative police power has been exercised. We address this issue within the context of the employee's due process claim. V. Employee's Claim that the Due Process Section of the OklahomaConstitution is Violated by Application of 85A O.S. Supp. 2013 § 2(14) & § 5 ¶23 Due process often has been explained by this Court in opinions discussing both the Fourteenth Amendment's30 Due Process Clause and Oklahoma's Due Process Section in the Oklahoma Constitution. The Oklahoma Due Process Section31 provides a bundle of rights and one or more of those rights may be in addition to a right provided by the Due Process Clause of the Fourteenth Amendment to the U. S. Constitution.32 However, because (1) the Oklahoma Due Process Section is coextensive with and protects, at a minimum, those rights which are also provided by the Fourteenth Amendment,33 and (2) we hold herein that the substantive due process minimum is violated by employer's construction and application of the challenged statutes to the petitioner; we need not address whether the Oklahoma Due Process Section has a substantive due process component broader in scope than its federal counterpart in the Fourteenth Amendment.34 ¶24 One hundred years ago, the U. S. Supreme Court indicated that the Federal Due Process Clause "would likely bar states from abolishing entirely rights of action on behalf of employees suffering physical harm because of wrongs attributable to employers."35 Some authors have argued that between approximately 1870 and 1920 the U. S. Supreme Court understood the Federal Due Process Clause as setting (1) a ceiling with limits for expanding a cause of action and creating additional liability for one party when a legislature attempted a naked redistribution of wealth and (2) a floor with constitutional limits on abolishing a cause of action when the legislature deprived an individual of an opportunity to vindicate a basic interest, such as a right to personal bodily integrity that traditionally has been enforceable against others who invade that right.36 ¶25 Then the High Court had a period where it developed a rational-basis review used for challenges to legislation that was characterized as social and economic in its application and not impacting a personal fundamental right.37 Consistent with this approach the Oklahoma Supreme Court has also stated and applied a rational-basis standard of review for due process challenges to enactments classified as "economic legislation."38 However, while the High Court gave a more legislatively deferential constitutional review of legislation involving economic regulation, it also advanced a less deferential review of legislation which acted to restrict a person's constitutionally protected liberty interests.39 For example, fifty years ago one author commented on the inaccuracy of a court using a rational-basis standard for economic legislation when such legislation also diminished a constitutionally protected personal right, and argued that such legislation received a judicial review that was less deferential than a legislatively deferential rational-basis review.40 ¶26 One well-known principle is that a legislature's authority to create or abolish a right or benefit does not mean that the legislature has the authority to create an unconstitutional condition related to that right or benefit.41 Other well-known and simple principles demonstrating our required analysis are: (1) a Legislature's exercise of a police power has been historically recognized42 as subject to limits expressed by the Will of the People in provisions of the Oklahoma Constitution prohibiting unreasonable and arbitrary legislation, (2) constitutional limits on police power continue to this day,43 and (3) these limits are applicable to any exercise of governmental legislative power (including legislative power exercised by a municipality or quasi-legislative power exercised in the form of an administrative rule).44 The legislation in this controversy does more than merely identify what employees are covered by workers' compensation or define a statutory cause of action; and doing so in both overinclusive and underinclusive form makes the legislation unconstitutional. ¶27 When the Legislature exercises a police power, such exercise "is an attribute of state sovereignty . . . [and] an inherent power of the state legislature that extends to the whole system of internal regulation by which the state preserves public order, prevents offenses against the state, and insures to the people the enjoyment of rights and property reasonably consistent with like enjoyment of rights and property by others."45 Our more modern expressions of this historically recognized constitutional limitation on police power have explained that a court must examine whether legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest.46 This analysis requires an adjudication whether a legitimate State interest exists47 and whether it is rationally related to the legislation. ¶28 We recently noted the nature of this review when we quoted an opinion from 1977 which in turn quoted an opinion from 1930. It is well settled that the state, or its agents, in the exercise of its police power can extend this power only to such measures as are reasonable under all the circumstances. The means adopted must bear some real and substantial relation or be reasonably necessary for the accomplishment of a legitimate object falling within the scope of the police power, and the law or regulation must tend toward the preservation of public welfare, health, safety, or morals. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 52, 148 P.3d 842, 857 quoting Suntide Inn Operating Corp. v. State, 1977 OK 204, 571 P.2d 1207, 1210, quoting Gibbons v. Missouri, K. & T. R. Co., 1930 OK 108, 285 P. 1040. A court determines (1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation. We have expressed often this two-part test in a negative form when explaining an unconstitutional exercise of the police power is an arbitrary and capricious exercise of power; i.e., the exercise of legislative power is unconstitutional when it was not reasonably devoted to a legitimate interest or end, or when the legitimate police-power interest was not regulated within reasonably necessary means for the identified State interests.48 ¶29 In due process jurisprudence involving whether a legitimate state interest exists, a court's analysis will generally be less intrusive upon an exercise of legislative discretion when the legislation is economic in nature. For many, an unforgivable jurisprudential error of Lochner was the Court substituting its own judgment for that of a legislative body on an economic issue49 with the Court deciding that the State's interest was not a legitimate economic interest.50 There are, of course, some circumstances where courts examine the legitimacy of the state's interest in economic legislation,51 but the High Court does not have a history of creating bright-line tests for defining legitimate state interests.52 Our Court frequently has been called upon by parties to make such a determination.53 ¶30 There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law,54 or that workers' compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created.55 In our case today, we do not repeat Lochner's error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent's articulated State interest as legitimate in this case, i.e., the prevention of workers' compensation fraud and the decrease in an employer's costs as a result of legislative effort to prevent fraud.56 ¶31 The Due Process Section of the Oklahoma Constitution includes an equal protection element.57 Respondent and amicus curiae rely upon Gladstone v. Bartlesville Indep. School Dist. No. 30,58 and argue for the Court to use an equal protection rational-basis review of § 2(14) and § 5. Many substantive due process violations based upon impermissible underinclusive/overinclusive classifications may also support an equal protection claim.59 ¶32 When a due process or equal protection challenge is made because a statute creates different classes of people with different legal rights, a legal analysis will often discuss whether the statute's classification is underinclusive (statute includes too few people in its created class) or if the classification is overinclusive (too many people are included in the statutory class). Generally, the U. S. Supreme Court has upheld an underinclusive statute regulating solely an economic matter when only a portion of the identified evil has been regulated,60 but where the government is required to narrowly tailor its classification the concept of underinclusiveness may be used to show the lack of a compelling government interest sufficient to make the statutory classification constitutional.61 A mere overinclusiveness or underinclusiveness in statutory classification will not necessarily show a failure to satisfy a rational-basis review.62 ¶33 If a police-power statute is overinclusive and prohibits both wrongful conduct by people and innocent conduct by others, then overinclusiveness by including the innocent may be used to show the arbitrary nature of the classification created by the statute. In the 1951 case of Board or Regents v. Updegraff,63 we explained that when the police power is used the acts of the Legislature are valid so long as they are not unreasonable, arbitrary, and capricious and do not violate any of the fundamental constitutional guaranties of the State and Federal Constitutions.64 When this opinion was reversed on a different ground by the U. S. Supreme Court in Wieman v. Updegraff, the High Court applied a similar test and held due process was violated by a loyalty-oath statute that arbitrarily failed to distinguish between persons whose membership activities in certain organizations were innocent and those whose activities were based upon knowledge of the organizations' purposes.65 ¶34 The distinction made in Wieman is noteworthy because it has been applied by courts to legislation in the nature of business regulation, and both respondent and amicus curiae argue that the legislation should be treated as economic and business related. For example, in the 1951 opinion of Adwon v. Retail Grocers Ass'n, we noted our prior opinion in 194966 which held the1941 Unfair Sales Act unconstitutional for the reason that it violated the state and federal constitutions by punishing for a sale for less than cost regardless of any wrongful intent by an innocent party. The Legislature subsequently deleted the unconstitutional language and the amended Act was before the Court in Adwon. A party made a claim that the Unfair Sales Act violated due process of law and relied upon opinions from Pennsylvania and New Jersey, which the Court rejected and explained that those opinions, like the former Oklahoma Act, impermissibly made no distinction in the scope of the Act between innocent conduct by individuals and those individuals committing the improper conduct the Act was designed to address by the exercise of a police power.67 ¶35 We agree with respondent and amicus curiae that decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature. This Court has a long history of recognizing the Legislature's general police power to alter private personal rights in contexts of creating or abolishing a cause of action. For example, in Davis Oil Co. v. Cloud,68 while the members of the Court were not unanimous in characterizing the legal interests altered by the then recently enacted Oklahoma Surface Damages Act,69 the Justices joining the Court's opinion and the four dissenting Justices all agreed that the Legislature has the power to change private property or rights of a person when the change is within a proper exercise of the Legislature's police powers.70 However, the U.S. Supreme Court has recognized substantive due process limitations on state law arbitrarily increasing a person's legal liability. In the 1996 case of BMW of North America, Inc. v. Gore,71 and the 2003 case of State Farm Mut. Auto. Ins. Co. v. Campbell,72 the High Court held that excessive damages violated the substantive component of the Due Process Clause, i.e., this constitutional provision provided a ceiling above which damages could not be awarded. In these cases the Court recognized the legitimate state interests in awarding punitive damages, but excessive damages were held to constitute an arbitrary deprivation of property.73 ¶36 In BMW, punitive damages were awarded to punish the defendant's business practices, and the Court used a substantive component of due process in holding that the excessive nature of the damages were not "reasonably necessary to vindicate the State's legitimate interests" in punishing the prohibited business practices.74 Although the Court's opinions in BMW, supra, and State Farm Mut. Auto. Ins. Co., supra, have the effect of using substantive due process to establish a due process ceiling, the Court has not recently used substantive due process to state that the extinguishment of a cause of action violates a due process floor of minimum requirements. However, it is clear that a State's legitimate interests in regulating business practices are not exempt from the requirements of substantive Due Process. The Court essentially held that the imposition of arbitrarily imposed economic liability violated due process. When the Legislature decreases workers' compensation liability (and costs) for the class of employers by barring an injured employee from filing a claim, such legislation also increases potential economic liability to employees and increased economic risk allocation by a diminished duty owed to the employees. In other words, the creation of an arbitrarily designed employer immunity by shifting economic loss to an innocent injured employee would also violate State and federal Due Process. ¶37 Is prohibiting injured workers from filing a claim for cumulative trauma during the first 180 days of employment reasonably necessary (or a nonarbitrary classification) to vindicate the State's legitimate interest in preventing fraudulent workers' compensation claims?75 In other words, is barring an injured employee from filing a cumulative trauma claim during the first 180 days of employment an arbitrary method to vindicate the State's interest in preventing fraudulent claims? ¶38 In Jimenez v. Weinberger, the U. S. Supreme Court addressed the issue of a statute created for the purpose of avoiding or stopping Social Security Act "spurious claims" by creating two classes of claimants.76 In addition to denying one class of claimants eligibility for a benefit, the statute also "denies them any opportunity to prove dependency in order to establish their 'claim' to support and, hence, their right to eligibility."77 In Jimenez, a statutory class of people was created for the purpose of stopping fraudulent claims and these people were denied the opportunity to show that their claims were legitimate and nonfraudulent. ¶39 Similar to Jimenez, § 2(14) creates two classes of employees with cumulative trauma injuries for the purpose of avoiding or stopping spurious (or fraudulent) workers' compensation claims, one class is entitled to compensation and another class is not. Also similar to Jimenez, § 2(14) individuals are denied the opportunity to establish their claims and their right to receive compensation for injuries arising out of the course and scope of employment, i.e., one class may file a claim and one may not. ¶40 The High Court noted prevention of spurious claims is a legitimate governmental interest.78 The Court explained that "It does not follow, however, that the blanket and conclusive exclusion . . . [of one class to benefits] is reasonably related to the prevention of spurious claims."79 The Court explained that assuming the class of individuals are, "in fact," within the class of people who would be entitled to benefits but for the challenged statutory classification, then the statutory classification discriminates "without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses."80 ¶41 Two years after Jimenez, the U. S. Supreme Court explained its holding by stating that if a conclusive exclusion of one class to a statutory benefit is combined with a statutory prohibition for members of this class to show they would otherwise be entitled to the statutory benefit; then the purpose of providing a statutory benefit to those entitled is lost as to those individuals. Further, an articulated purpose of preventing spurious claims was constitutionally insufficient in Jimenez because "to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment."81 Different United States Courts of Appeals have observed that a rational basis form of review was used in Jimenez, and that this review has been used to invalidate legislation.82 ¶42 Language in Jimenez, refers to both the underinclusiveness and overinclusiveness of the challenged legislation.83 Similar issues are present in our case today. When considering the articulated purpose of preventing workers' compensation fraud, a statute creating a class of employees who are injured, in fact, with a cumulative trauma injury during the first 180 days of employment with their then current employer, and then they are conclusively placed within a class of employees who file fraudulent claims, that statutory placement is overinclusive by lumping together the innocent with the guilty. On the other hand, if one of the purposes of workers' compensation is to provide statutory compensation for employees actually suffering an injury arising out of the course and scope of employment;84 then the statute is underinclusive because it fails to include employees actually injured during the first 180 days of employment. ¶43 We also observe, like the U. S. Supreme Court in Jimenez, the prevention of spurious and fraudulent claims is a legitimate governmental interest. As noted by the High Court, it does not follow, however, that the blanket and conclusive exclusion of one class of injured employees to benefits is reasonably related to the prevention of spurious claims. Assuming that employees with less than 180 days of employment are, in fact, within the class of people who would be entitled for benefits but for the 180-day challenged statutory classification, then the statutory classification discriminates without any rational basis for the distinction since the potential for filing spurious claims is exactly the same for cumulative-trauma employees before and after 180 days of continuous employment. ¶44 In Weber v. Aetna Casualty & Surety Co.,85 the Court held Louisiana's workers' compensation scheme violated the Fourteenth Amendment by distinguishing for different treatment the class of dependent unacknowledged illegitimate children and the class of dependent legitimate children, and observing "Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing."86 Although we need not adopt this rationale of Weber as a necessary part of our a process analysis to adjudicate the present controversy,87 we note § 2(14) which prohibits an injured worker from filing a non-fraudulent claim prior to the 180-day period does not show a rational relationship between legally allocating individual responsibility with the wrongful conduct that the State interest seeks to prevent. ¶45 Employer also makes an argument that § 2(14) and § 5 work together so that employee has no right and no remedy for her alleged injury and this combination of the two statutes is constitutional. Paragraph "C" of § 5 states: "The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act." Respondent argues employee is prohibited from filing an action in the District Court against her employer although she has no workers' compensation remedy. ¶46 The § 5 prohibition of filing in a District Court shows that the interest of the State behind the classification scheme cannot be solely the prevention of fraudulent claims filed with the Workers' Compensation Commission.88 Generally, the act of classifying is grouping or segregating objects and that act assumes a purpose for the classification to accomplish a particular result that is something other than a mere purpose to classify.89 Respondent and amicus curiae state the two statutes are economic in nature. They state the purpose is a State interest in lowering costs to employers. A statute regulating economic affairs is not unconstitutional merely because an economic detriment or benefit is created by a statutory classification. The very nature of such statutes is to alter economic benefits with or without corresponding economic detriments. Again, for the purpose of our analysis we assume that lowering an employer's costs is a legitimate State interest. ¶47 But their argument repeats a similar flaw. They argue a rational basis for legislation is shown if the purpose of a statute, as articulated by a legitimate State interest, is accomplished in any degree regardless of the irrationality of the classifications created by the statute. Their first argument is that a statute with a purpose to decrease workers' compensation fraud is constitutional if workers' compensation fraud is, or potentially will be, decreased in any degree by operation of the statute. Their second argument using the legitimate State interest in lowering costs to employers becomes: A statute with a purpose to lower an employer's costs is constitutional if employer's costs are, or potentially will be, decreased in any degree by operation of the statute. Just as their first argument fails to include concepts of overinclusive and underinclusive constitutional flaws in statutes receiving a rational basis review, so does their second argument. We decline their invitation to adopt their position that class distinctions between employees with similar injuries is rationally related to a legitimate State interest although principles of underinclusiveness and overinclusiveness show irrationality in the classification. ¶48 We conclude the overinclusive and underinclusive nature of § 2(14) as it relates to the legitimate State interest to prevent workers' compensation fraud and its prohibition preventing an employee from filing a non-fraudulent workers' compensation claim violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7. Adwon v. Retail Grocers Ass'n, supra, Suntide Inn Operating Corp. v. State, supra, Jacobs Ranch, L.L.C. v. Smith, supra, Wieman v. Updegraff, supra, and Jimenez v. Weinberger, supra.90 VI. The Grand Bargain ¶49 Employee argues that when the workers' compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker's employer and the worker gained statutory compensation in a lessor amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was both less in individual cases and fixed by statute. Employee cites to forty-two (42) provisions of the current workers' compensation scheme and argues that (1) workers' compensation remedies are inadequate, (2) the grand bargain is violated, and (3) the order denying her workers' compensation benefits should be reversed. ¶50 Two concepts are often raised as being important principles underlying workers' compensation law, (1) the State's interest in the economic welfare of injured workers, and (2) the grand bargain.91 At the time the workers' compensation laws were created it was recognized that a worker's common-law remedies in District Courts for on-the-job injuries were less than ideal. For example, in writing for the Yale Law Journal in 1911, then Oklahoma Supreme Court Justice Kane explained that the compensation laws then being enacted had a goal of compensating an injured employee so that family members economically relying on the worker should not be left "to the tender mercy of charity or a charge upon the State."92 We noted this purpose in 1935 and more recently in 2005.93 ¶51 Public policies adopted by our Legislature one hundred years ago that were foundational for establishing workers' compensation laws, such as the historic Legislature's views on the grand bargain and economic-welfare shifting, do not control or limit the current Legislature's determination of public policy. It is a well-known principle of statutory and constitutional construction that one Legislature cannot bind another, and this Court has followed this principle for several decades.94 Courts recognize that a legislature has the power to change the common law "to reflect a change of time and circumstances."95 While the English common law may be a starting point for a legal analysis, statutory law may modify the common law.96 The old hand that was at the legislative helm a hundred years ago does not control the present Legislature's view of good public policy. ¶52 This discussion of the grand bargain shows that the concept is important to the extent it is a beginning for an analysis to inform a court what may, or may not, be current and legitimate State interests (or current public policies) for the purpose of a court's statutory analysis in the context of addressing this employee's constitutional claim. We have concluded herein that § 2(14) was unconstitutionally applied to employee, and reverse the order of Workers' Compensation Commission for further administrative proceedings consistent with this opinion. Because we have determined § 2(14) creates an irrational classification and violates Okla. Const. Art. 2 § 7 when applied to employee, it is not necessary to analyze employee's claim that § 2(14) violates the grand bargain upon application of Art. 2 § 7, or if § 2 (14) is unconstitutional upon application of some other provision of our State Constitution.97 We also need not address whether § 2 (14) violates Okla. Const. Art. 2 § 6.98 ¶53 Employee's invocation of a constitutionally deficient grand bargain in the current Oklahoma statutes is a hypothetical question whose judicial resolution in this appeal would not, under the present record on appeal, alter her rights on remand.99 Employee's citation to forty-two provisions of the workers' compensation statutes is not linked by legal argument to an aggrieved legal interest of employee that would be affected on remand, and showing her status as aggrieved is a record-driven necessity100 to adjudicate her claim of constitutionally insufficient statutes101 in the absence of non-Hohfeldian standing.102 VII. Conclusion ¶54 We conclude 85A O.S.Supp. 2013 § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, because its overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers' compensation fraud and (2) decreasing employers' costs. We do not adjudicate employee's claims challenging the construction or constitutional sufficiency of other workers' compensation statutes, or her Okla. Const. Art. 2 § 6 claim, or her assertion that the workers' compensation grand bargain has been violated. ¶55 The order of the Workers' Compensation Commission is reversed and the matter is remanded for further proceedings consistent with this opinion. ¶56 REIF, C. J., COMBS, V. C. J., WATT, EDMONDSON, and GURICH, JJ., concur. ¶57 COLBERT, J., concur specially. ¶58 KAUGER, WINCHESTER, and TAYLOR, JJ., concur in result. FOOTNOTES 1 Respondent's Answer Brief, at p. 4. 2 The term Brandeis brief is used to describe a brief which emphasizes statistics and commission reports more than judicial precedents, and the origin of the appellation is a brief filed by Louis D. Brandeis when he appeared as counsel in Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). See Allison Orr Larsen, The Trouble with Amicus Facts, 100 Va. L.Rev. 1757, 1769-1770 (2014); William H. Rehnquist, The Supreme Court, 209 (1987). In an appeal, the brief of an amicus curiae is limited to facts and issues raised by the parties that have not been "presented adequately" by the parties from the viewpoint of the amicus curiae. Okla. Sup. Ct. R. 1.12 (b)(1). This language does not allow an amicus curiae to expand the record on appeal via a Brandeis brief. The record on appeal is certified from the clerk of the lower tribunal. Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724 ("This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, nor may a deficient record be supplemented by material physically attached to a party's appellate brief."). An amicus curiae in an appeal may not raise new facts by an appellate brief. Similarly, in an original jurisdiction proceeding an amicus curiae may not put in issue a new fact, or file an appendix or exhibits. Id. Rule 1.12 (a)(2). 3 Brief of amicus curiae at p. 9. 4 Okla. Const. Art. 2 § 7: "No person shall be deprived of life, liberty, or property, without due process of law." 5 85A O. S. Supp. 2013 § 5: A. The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death. B. Exclusive remedy shall not apply if: 1. An employer fails to secure the payment of compensation due to the employee as required by this act. An injured employee, or his or her legal representative in case death results from the injury, may, at his or her option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of the injury or death; or2. The injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer's conduct shall not constitute an intentional tort. The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. The issue of whether an act is an intentional tort shall be a question of law.C. The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act.D. If an employer has failed to secure the payment of compensation for his or her injured employee as provided for in this act, an injured employee, or his or her legal representative if death results from the injury, may maintain an action in the district court for damages on account of such injury.E. The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker.F. The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker.G. This section shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in subsection F of this section. Nothing in this act shall be construed to relieve the employer from any other penalty provided for in this act for failure to secure the payment of compensation under this act.H. For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.I. If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either before the Commission or in the district court, but not both. 6 The Court has noted on more than one occasion the purpose of the workers' compensation laws to abrogate the worker's common law right of action with the substitution of an exclusive statutory remedy. See, e.g., Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148, 1152 ("At the time of adoption of the first Workers' Compensation law in the State of Oklahoma, benefits were provided for accidental personal injury, . . . [and] This was an abrogation of the employee's common law right of action for personal injury against an employer.") (material and citations omitted); Maryland Casualty Co. v. Hankins, 1975 OK 25, 532 P.2d 426, 429 (The act abrogated the common law right of action, for injury to an employee in a hazardous occupation, and substituted a statutory, exclusive remedy."). 7 In re T. H., 2015 OK 26, ¶ 9, 348 P.3d 1089, 1092 ("The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of a statute."); Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 ("The fundamental rule of statutory construction is to ascertain and give effect to legislative intent."); State ex rel. Oklahoma Dept. of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877-878 ("Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language."); In re Abrams' Will, 1938 OK 162, 77 P.2d 101, 103 (the court has a duty to ascertain and enforce the legislative intent). 8 Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219. 9 Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d at 219. 10 A "compensable injury" includes "cumulative trauma . . . arising out of the course and scope of employment." 85A O.S. Supp. 2013 § 2 (9)(a). 11 The statutory language may not be deemed to create an irrebuttable presumption that no cumulative trauma repetitive injury can actually exist, in fact, during the 180-day period. For example, there is a fundamental difference between an irrebuttable presumption of total disability that is created upon a statutorily-required actual factual showing versus an irrebuttable presumption that no actual cumulative trauma can exist in fact, regardless of facts that might be marshaled by an injured worker to challenge the presumption. In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 22-23, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976), the Court explained an "irrebuttable presumption" did not violate due process where a presumption of total disability was simply to establish entitlement in the case of a miner who is "clinically diagnosable as extremely ill with pneumoconiosis arising out of coal mine employment." The presumption of disability was created by facts presented in the controversy. Id. The power to adjudicate questions of fact framed by a controversy is exclusively a judicial power, or in the case of administrative proceedings, a quasi-judicial power. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶ 20, 163 P.3d 557, 564, citing Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. See also State ex rel. Blankenship v. Freeman, 1968 OK 54, 440 P.2d 744, 757 ("Facts to which the law is to be applied in the process of adjudication are called adjudicative facts. These are facts 'about the parties'. They must be ascertained from formal proof and are to be distinguished from 'legislative facts', or those which are helpful to a court in determining the meaning, effect, content or validity of enactments."). 12 Okla. Const. Art. 5 § 36: "The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever." 13 Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶ 22, 184 P.3d 546, 553 ("The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith."); In re Flynn's Estate, 1951 OK 310, 237 P.2d 903, 905 ("The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith."). 14 In re Detachment of Municipal Territory from City of Ada, Okla., 2015 OK 18, ¶ 7, 352 P.3d 1196, 1199 ("This Court does not examine the Constitution to decide whether the Legislature is permitted to act, . . . only whether it is prohibited from acting."); Fair School Finance Council, Inc. v. State, 1987 OK 114, 746 P.2d 1135, 1149 ("our state Legislature generally may do, as to proper subjects of legislation, all but that which it is prohibited from doing.") Williams Natural Gas Co. v. State Bd. of Equalization, 1994 OK 150, n. 12, 891 P.2d 1219 ("Testa v. Katt, 330 U.S. 386, 393, 67 S. Ct. 810, 814, 91 L. Ed. 967 (1947), teaches that the Supremacy Clause compels a state court to exercise jurisdiction over a federal-law claim."); Nova Health Systems v. Pruitt, 2012 OK 103, ¶ 2, 292 P.3d 28 ("this Court is not free to impose its own view of the law...this Court is duty bound by the United States and the Oklahoma Constitutions to 'follow the mandate of the United States Supreme Court on matters of federal constitutional law.'"); In re Initiative Petition No. 348, State Question No. 642, 1992 OK 122, 838 P.2d 1, 3, n. 2 ("When the United States Supreme Court speaks on matters of federal constitutional law, state courts are bound under the Fourteenth Amendment to follow its mandate. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961)."). 15 St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 918 ("Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, such construction will be adopted by the courts."); Fent v. Oklahoma Capitol Imp. Authority, 1999 OK 64, ¶ 3, 984 P.2d 200, 204 ("A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment."). 16 CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, ¶ 10, 339 P.3d 848, 852, quoting Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. See also In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 39, 326 P.3d 496, 512 ("A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought."). 17 CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, at ¶ 10, 339 P.3d at 853, quoting Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204. 18 Generally, a party challenging the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute. Seal v. Corporation Commission, 1986 OK 34, 725 P.2d 728, 283, appeal dismissed sub. nom., Amerada Hess Corp. v. Corporation Commission, 479 U.S. 1073, 107 S. Ct. 1265, 94 L. Ed. 2d 126 (1987) (standing to challenge constitutionality of statutes and administrative rules by Corporation Commission was shown by a causal connection between the party's direct and pecuniary injury and application of the challenged statutes and rules); Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, 894 P.2d 1074, 1076 (summary judgment for defendants affirmed on appeal because plaintiff did not have standing where record failed to show any injury to plaintiff caused by application of the challenged statute). Cf. Tulsa Industrial Auth. v. City of Tulsa, 2011 OK 57, n. 21, 270 P.3d 113, 121, citing Tulsa Indus. Auth. v. State, 1983 OK 99, 672 P.2d 299, 301 (listing four elements of justiciability and explaining 12 O.S. § 1651 [declaratory judgment proceeding] invests District Courts with jurisdiction in cases of actual controversy to determine the construction or validity of any statute.). There are exceptions to this general rule. See, e.g., Gentges v. Oklahoma State Election Bd., 2014 OK 8, ¶ 7, 319 P.3d 674, 676, citing State ex rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96, 614 P.2d 45, 51 (a private party may be granted standing to vindicate a public interest). The parties in the controversy before the Court do not discuss exceptions to the general rule. 19 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980). 20 Respondent's Answer Brief at p. 6. 21 1917 OK 47, 162 P. 938 (quoting the Court's Syllabus). 22 In re T. H., supra, and State ex rel. Oklahoma Dept. of Health v. Robertson, supra, at note 7 supra. 23 Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 23, 180 P.3d 1205, 1212 (the court applies the meaning of statutory language). 24 Red Slipper Club, Inc. v. City of Oklahoma City, 1979 OK 118, 599 P.2d 406, 408. 25 Veterans of Foreign Wars v. Childers, 1946 OK 211, 171 P.2d 618. 26 State ex rel. Wright v. Oklahoma Corp. Com'n, 2007 OK 73, ¶¶ 18-28, & n. 14, 170 P.3d 1024, 1031- 1034. 27 See, e.g., Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508, 57 S. Ct. 868, 81 L. Ed. 1245 (1937) (". . . the particular name which a state court or legislature may give to a money payment commanded by its statute is not controlling here when its constitutionality is in question"). Cf. Van Orden v. Perry, 545 U.S. 677, 681, 691-692, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (2005) (Rehnquist, C.J., and joined by Scalia, Kennedy, and Thomas, JJ.) (although legislation stated a monument commemorated "people, ideals, and events that compose Texan identity," First Amendment Establishment Clause constitutionality was not based upon legislative characterization of the monument, but upon facts showing the monument was physically placed with many secular historical monuments and it had a government significance as well as a religious one). 28 The general principle that a legislature may use a police power to create or destroy workers' compensation rights and remedies may not be successfully used to necessarily show constitutionality of a particular workers' compensation statute. The attribute of a constitutional exercise of police powers that is applied to a legislature creating workers' compensation laws in general may not be applied as a necessary attribute to a specific workers' compensation statute without such reasoning committing the fallacy of division. See State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, n. 91, 264 P.3d 1197, 1220. 29 Reliance upon a generality to decide a legal issue has been long-recognized as insufficient legal analysis when application of a legal principle requires a greater degree of specificity. For example, Judge Posner, in commenting on Justice Holmes' dissent in Lochner v. New York, 198 U.S. 45, 76, 5 S. Ct. 539, 49 L.Ed 937 (1905), stated that "general propositions do not decide concrete cases," and explained that while generality is necessary to provide guidance for future disputants and many often instinctively think of particulars as instantiations of generalities; a law may be grammatically overinclusive based upon its purpose and effect in relation to a particular application, and people usually recognize in daily life that overinclusiveness should be remedied with an interpretation that rationally relates the purpose of the law to the actual circumstances of its application, e.g., a sign "forbidding animals in a restaurant" should not be interpreted to ban humans. Richard A. Posner, Reflections on Judging, 120-121 (2013). 30 U.S. Const. Amendment 14, § 1 provides in pertinent part: "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." 31 The Okla. Const. Article 2, § 7 provides: "No person shall be deprived of life, liberty, or property, without due process of law." 32 See, e.g., Turner v. City of Lawton, 1986 OK 51, 733 P.2d 375, 378 (noted the exclusion of evidence acquired by an unconstitutional search or seizure was not merely a rule of procedure, but rather a fundamental right under the Oklahoma Constitution existing independent of either the Fourth or Fourteenth Amendments of the United States Constitution); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (Court explained that its construction of the U. S. Constitution did not "limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution."). 33 Presley v. Board of County Commissioners of Oklahoma County, 1999 OK 45, ¶ 6, 981 P.2d 309, 312 ("Due process protections encompassed within the Okla. Const. art. 2, § 7 are coextensive with those of its federal counterpart."). 34 See, e.g., In re Initiative Petition No. 348, State Question No. 642, 1992 OK 122, 838 P.2d 1, 12, n. 29 (after noting states which had recognized individual state constitutional rights additional to those granted by the Federal Constitution, the Court noted that it was not called upon to address whether such additional rights were present in the controversy before the Court.). 35 John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 569-575 (2005), explaining New York Central Railroad Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667 (1917); Missouri Pacific Railway Co. v. Humes, 115 U.S. 512, 6 S. Ct. 110, 29 L. Ed. 463 (1885); Poindexter v. Greenhow,114 U.S. 270, 5 S. Ct. 903, 29 L. Ed. 185 (1885). Both Missouri Pacific Railway Co. and Poindexter predate the often-discredited Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed 937 (1905), which protected a liberty of contract using the Due Process Clause. Thomas Colby & Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015) ("For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong."); Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 Duke L. J. 243, 245 (1998) ("The Supreme Court's positions in Lochner and Plessy [v. Ferguson, 163 U.S. 52-37 (1896)] are paradigmatic examples of what is not the law."). See also Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 418-419 discussed at note 50, infra. 36 John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 559-560 (2005). Another author characterizes the period of 1895 to 1936 as one where the U. S. Supreme Court "manipulated doctrines of constitutional law" against several then popular statutory reforms. Leonard W. Levy, Original Intent and the Framers' Constitution, 369 (1988). See also David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1, 11 (2003) (arguing that there was not one Lochner era, but three, 1897-1911, 1911-1923, and 1923 to the mid-1930s.) 37 U. S. v. Carolene Products, Co., 304 U.S. 144, 153, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) ("regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators."); Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. at 578 commenting on Carolene Products. In Carolene Products, the Court noted "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." 304 U.S. at 152 n.4. 38 Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, n. 54, 66 P.3d 442, citing Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 82-84, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978) and T.I.M. Co., Inc. v. Oklahoma Land Title Ass'n, 1984 OK 66, 698 P.2d 915, 920. 39 St. Joseph Abbey v. Castille, 712 F.3d 215, 221 (5th Cir.) cert. den., __ U.S. __, 134 S. Ct. 423 187 L. Ed. 2d 281 (2013), ("Chief Justice Stone's footnote 4 in United States v. Carolene Products, etched in the brains of several generations of law students, both described and prescribed a fundamental dichotomy of judicial review; it retreated from the aggressive review of state regulation of business in the Lochner period while proceeding in the opposite direction in matters of personal liberty."). 40 Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup.Ct.Rev. 34, 55 ("From the first the modern Court has been troubled by a recurring problem: how does the dichotomy stand up when economic matters and personal rights are involved in a single government action?"). 41 An assertion that a legislature has the power to create and abolish workers' compensation actions as well as common-law actions generally, and that such power is sufficient to decide the issues in this controversy is the type of argument condemned more than fifty years ago by the U. S. Supreme Court as a "facile generalization" that obscures the issue to be decided. See the discussion herein of Wieman v. Updegraff, 344 U.S. 183, 191, 73 S. Ct. 215, 97 L. Ed. 2d 216 (1952). This type of reasoning has been criticized by the U. S. Supreme Court in other cases as well. See, e.g., Koontz v. St. Johns River Water Management Dist., ___ U.S. ___, 133 S. Ct. 2586, 2596-2597, 186 L. Ed. 2d 697 (2013) (Justice Alito's opinion for the Court collecting U. S. Supreme Court cases on the issue that government's authority to deny or withhold a right or benefit generally does not mean government has the authority to create an unconstitutional condition attached to the right or benefit created, and the opinion quotes the "facile generalization" language in Wieman.). 42 See, e.g., Daniel J. Crooks, III, Toward "Liberty": How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time, 8 Charleston L. Rev. 223, 238 (Winter 2013-2014) citing Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame L. Rev. 429, 484 (2004), and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (1866) ("Following in the natural law tradition of John Locke and the vast majority of the framers of the Constitution and Bill of Rights, as well as the framers of the Fourteenth Amendment, Cooley understood the concept of 'due process of law' to entail a substantive component that existed to provide a check on the states' police powers. To Cooley, this substantive nature safeguarded individuals' natural rights from unwarranted intrusion by the state. . . . 'Just as it is proper to prohibit wrongful or rights-violating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others.'"). 43 Northeast Oklahoma Elec. Co-op., Inc. v. State ex rel. Corp. Com'n, 1989 OK 18, 768 P.2d 901, 904, quoting Oklahoma Natural Gas Co. v. Choctaw Gas Co., 1951 OK 224, 236 P.2d 970, 977 (the Court stated "we agree that "'the police power must at all times be exercised with scrupulous regard for private rights guaranteed by the Constitution.'"). Cf. Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887, 69 S. Ct. 236, 93 L. Ed. 425 (1948) (" . . . while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation."). 44 McConnell v. Town Clerk of Tipton, 1985 OK 61, 704 P.2d 479, 481, citing Keaton v. Oklahoma City, 1940 OK 215 102 P.2d 938 ( "Municipalities are authorized to enact zoning ordinances and when the legislative branch of the municipal government has acted in a particular case, its expressed judgment on the subject will not be overridden by the judiciary unless such judgment is unreasonable, arbitrary or constitutes an unequal exercise of police power."); Mid-Continent Life Ins. Co. v. City of Oklahoma City, 1985 OK 41, n.4, 701 P.2d 412, 413 (Court collected opinions dating from 1979, 1976, 1972, 1967, two from 1966, in support of its statement that "Unless the zoning decisions of a municipality are found not to have a substantial relation to the public health, safety, morals or general welfare or to constitute an unreasonable, arbitrary exercise of police power, its judgments will not be overridden by the district court."). For a discussion of the quasi-legislative function of an administrative rule see Waste Connections, Inc. v. Oklahoma Dept. of Environmental Quality, 2002 OK 94, ¶ 11, 61 P.3d 219, 224. It has been long-recognized that administrative actions are subject to the Due Process provisions of the State and U. S. Constitutions. See, e.g., State v. Parham, 1966 OK 9, 412 P.2d 142, 154 ("The due process clauses of the state and federal constitutions afford protection against arbitrary and unreasonable administrative action."). 45 Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 24, 148 P.3d 842, 849 (emphasis added). 46 Edmondson v. Pearce, 2004 OK 23, ¶ 35, 91 P.3d 605, 624 (courts may not annul legislation for being in violation of substantive due process unless it is clearly irrelevant to the policy the Legislature may adopt or is arbitrary, unreasonable or discriminatory."), emphasis added and quoting Jack Lincoln Shops, Inc. v. State Dry Cleaners' Board, 1943 OK 28, 135 P.2d 332, 333, appeal dismissed, 320 U.S. 208, 63 S. Ct. 1448, 87 L. Ed. 1847 (1943). 47 See, e.g., Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of Lawful Rule, 35 Harv. J. L. & Pub. Pol'y 283, 323 (2012) ("To put this in modern parlance: So long as courts must decide whether a law is rationally related to a legitimate government interest, they cannot hope to avoid determining what is and is not a legitimate government interest."). 48 See, e.g., Federal Land Bank of Wichita v. Story, 1988 OK 52, 756 P.2d 588, 593, quoting State ex rel. Roth v. Waterfield, 1933 OK 546, 29 P.2d 24 (Court explained that "Section 493 [62 O.S.Supp.1986 § 493] operates as 'an arbitrary and capricious extension of time amounting to a taking of private property without ... compensation ... or protection of the rights of the mortgagee' [and] Therefore, Section 493 is not a reasonable exercise of the police power devoted to a legitimate end..."). Cf. Amoco Production Co. v. Corporation Commission of State of Oklahoma, 1986 OK CIV APP 16, 751 P.2d 203 (modified on certiorari and adopted as opinion of the Supreme Court) (substantive due process required reversal because an order of the Commission had an unreasonable impact). 49 See, e.g., Ashira Pelman Ostrow, Judicial Review of Local Land Use Decisions: Lesson from RLUIPA, 31 Harv. J. L. & Pub. Pol'y 717, n. 56, 731 (2008) ("In the post-Lochner era, courts are particularly wary of substituting their judgment for that of the community's elected representatives when examining economic legislation. The Lochner era refers to a period of time in which the Court invalidated regulatory economic legislation because it disagreed with its legislative purpose."); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 418-419 (2011) (The standard critique of Lochner is usually placed into two separate categories: (1) It is error for a court to second-guess legislative judgments identifying a State interest based on the Court's own judgment reflecting its subjective moral or political preferences rather than using values authoritatively codified in the Constitution; and (2) A court should not second-guess legislative judgments and invalidate them on the basis of an "unenumerated" right.). 50 In Lochner, the Court initially recognized the State's interest in protecting the health and safety of the public, but then the Court independently reviewed the State's justification for the legislation (although majority denied that it was simply substituting its judgment for that of the legislature). Lochner v. New York, 198 U.S. at 57 ("There is no reasonable ground for interfering with the liberty of person or the right of free contract...."). 51 See, e.g., Kimberly N. Brown, ''We the People," Constitutional Accountability, and Outsourcing Government, 88 Ind. L. J. 1347, n. 210, 1376 (2013) ("The [Supreme] Court has required that an asserted government interest serves the public good, rather than merely private interests or biases, in order to qualify as 'legitimate' under the rational basis test."), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47, 105 S. Ct. 3249, 67 L. Ed. 2d 313 (1985) ("The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. . . Furthermore, some objectives-such as 'a bare ... desire to harm a politically unpopular group, . . . are not legitimate state interests.'"); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 37 L. Ed. 782 (1973) ("The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."). 52 Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 834, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) ( In controversies involving land-use regulations and permits the High Court does not have a history of defining a legitimate state interest: "Our cases have not elaborated on the standards for determining what constitutes a 'legitimate state interest'...."). 53 See, e.g., Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 26, 148 P.3d 842, 850 ("For the health, welfare and safety of its citizens, the Legislature may regulate a landowner's use and enjoyment of water resources to prevent waste and infringement on the rights of others."). 54 Shepard v. Oklahoma Dept. of Corrections, 2015 OK 8, ¶ 18, 345 P.3d 377, 384. 55 Indian Territory Illuminating Oil v. Davis, 1932 OK 210, 9 P.2d 40, 42 (discussed constitutional challenges to workers' compensation laws in other states and the constitutionality of Oklahoma's version "under the doctrine of general police power."). 56 The Oklahoma penal code states workers' compensation fraud is punishable as a felony. 21 O.S. 2011 §§ 1, 2, 1663. Workers' compensation fraud is prohibited by the Administrative Workers' Compensation Act: "Any person or entity who makes any material false statement or representation, who willfully and knowingly omits or conceals any material information, or who employs any device, scheme, or artifice, or who aids and abets any person for the purpose of: (1) obtaining any benefit or payment, (2) increasing any claim for benefit or payment, or (3) obtaining workers' compensation coverage under this act, shall be guilty of a felony punishable pursuant to Section 1663 of Title 21 of the Oklahoma Statutes." 85A O.S.Supp. 2015 § 6 (A)(1). 57 The Due Process Section of the Oklahoma Constitution also has an equal protection component. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, n. 29, 805, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995) ("The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7."). The Due Process Clause of the Fifth Amendment to the U. S. Constitution also includes an equal protection element. See, e.g., Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974) ("Although the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.' . . . Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.") (citations omitted). 58 2003 OK 30, ¶ 12, 66 P.3d 442. 59 See, e.g., Developments in the Law--The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1473 (1982) ("Almost any substantive due process claim may be translated into an equal protection claim merely by pointing to some other group not subject to the challenged regulation. If a regulation does not serve a legitimate purpose -- and so violates substantive due process -- applying it to one group and not to another violates the equal protection requirement that a legitimate state purpose support a given classification.") (citations omitted). 60 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976), (a legislature may make imperfect classifications which only partially ameliorate a perceived evil and defer complete elimination of the evil to future legislation); Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S. Ct. 2268, 2275, 45 L. Ed. 2d 125 (1975), citing Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S. Ct. 461, 464-465, 99 L. Ed. 563 (1955) ("This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it."). 61 An underinclusive statute may demonstrate the absence of a compelling state interest required for a state's justification when restricting a fundamental right. See, e.g., Justice Kennedy's opinion for the Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) and its reliance, in part, upon Justice Scalia's opinion concurring in judgment in The Florida Star v. B. J. F., 491 U.S. 524, 540-541,109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989), for the concept that when a statute prohibits certain conduct, the articulated state interest given in justification of the prohibition is not a compelling state interest when the statute is underinclusive due to its failure to prohibit "other conduct producing substantial harm or alleged harm of the same sort." Church of Lukumi Babalu Aye, Inc., 508 U.S. at 547 (Part III of the opinion for the Court). See also Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-105, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979) (A statute was insufficiently tailored [underinclusive] in protecting anonymity of juveniles where it restricted only newspapers, not the electronic media or other forms of publication, from identifying juvenile defendants, and even assuming the statute served a state interest in furthering such anonymity, the statute's underinclusiveness failed to accomplish its purpose.). 62 Vance v. Bradley, 440 U.S. 93, 97,108, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979). 63 Board or Regents v. Updegraff, 1951 OK 270, 237 P.2d 131, reversed, Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 2d 216 (1952). 64 Board or Regents v. Updegraff, 237 P.2d at 137. The Court relied on this language in Gilbert Cent. Corp. v. State, 1986 OK 6, 716 P.2d 654, 659. 65 Wieman v. Updegraff, 344 U.S. at 190, 191 (the Court concluded that "Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. The oath offends due process. . . We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.") (material omitted). 66 Englebrecht v. Day, 1949 OK 154, 208 P.2d 538. 67 Adwon v. Retail Grocers Ass'n, 1951 OK 43, 228 P.2d 376, 378. For a short note on legal challenges to Oklahoma's Unfair Sales Act, see So-Lo Oil Co., Inc. v. Total Petroleum, 1992 OK 71, n. 14, 832 P.2d 14, 17, commenting on Englebrecht v. Day, supra, Adwon, supra, Safeway Stores, Inc. v. Oklahoma Retail Grocers Ass'n, Okl., 1957 OK 336, 322 P.2d 179, aff'd 360 U.S. 334, 79 S. Ct. 1196, 3 L. Ed. 2d 1280 (1959), and Glenn Smith Oil Co. v. Sheets, 1985 OK 56, 704 P.2d 474, 477. 68 Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347. 69 In Davis Oil Co., the majority opinion classified the Surface Damages Act (52 O.S.Supp.1982 §§ 318.2 through 318.9) as the removal of a common-law defense while the dissenting opinion viewed the Act as shifting a contractual property right from one contracting party to another when the Act was applied retroactively to a mineral lease that had been created prior to the effective date of the Act. Compare Davis Oil, 766 P.2d at 1350 ("The limitation on the operator's liability in the exercise of that right is to be viewed as no more than a defense which has been provided to the operator by operation of the common law in actions for damages by the surface estate holder") with 766 P.2d 1353-1357, at 1356 ("The implied covenant to reasonable use of the surface estate is thus "a part of the written lease as fully as if it had been expressly contained therein.") (Summers, J., dissenting opinion on rehearing, joined by Opala, V.C.J., Hodges, and Simms, JJ.). 70 Davis Oil Co., 766 P.2d at 1351, quoting Anderson-Prichard Oil Corp. v. Corporation Commission, 1951 OK 234, 241 P.2d 363, appeal dismissed, 342 U.S. 938, 72 S. Ct. 562, 96 L. Ed. 698 (1952), and 766 P.2d at 1356, (Summers, J., dissenting), citing Anderson-Prichard Oil Corp. ("A state may in some cases exercise its police power and properly alter existing contractual obligations."). 71 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). 72 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003). 73 BMW of North America v. Gore, 517 U.S. at 568 (Court held that the Constitution imposed limits on procedures for awarding punitive damages and also explained that "Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment."); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 417 ("To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. . . [and] they have a devastating potential for harm.") 74 BMW of North America v. Gore, 517 U.S. at 568 (citing rule and explaining that a State's legitimate intersts do not include a grossly excessive damages which are arbitrary). 75 BMW, supra, and State Farm Mut. Auto. Ins. Co., supra. See also Flemming v. Nestor, 363 U.S. 603, 611, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) ("...when we deal with a withholding of a noncontractual benefit under a social welfare program . . . Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification."). 76 Jimenez v. Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974). 77 Jimenez, 417 U.S. at 635. 78 Jimenz, 417 U.S. at 636. 79 Jimenz, 417 U.S. at 636, material omitted and explanatory phrase added. 80 Jimenz, 417 U.S. at 636. 81 Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) quoting Jimenez v. Weinberger, 417 U.S. 628, 636, 637. 82 See, e.g., Murillo v. Bambrick, 681 F.2d 898, n. 15, 905 (3rd Cir. 1982) cert. denied, 459 U.S. 1017, 103 S. Ct. 378, 74 L. Ed. 2d 511 (1982), (court observed that "judicial review under the rational relation standard has never been entirely 'toothless.'"), citing Jimenez v. Weinberger, supra, and two additional Supreme Court opinions); Williams v. St. Clair, 610 F.2d 1244, 1249 (5th Cir. 1980) (reaffirming basic principles of rational basis review from Dandridge v. Williams, 397 U.S. 471 (1970), and noting Jimenez v. Weinberger, supra, for the concept that there was no rational basis for the classification scheme); Berger v. City of Mayfield Heights, 154 F.3d 621, 625 (6th Cir. 1998), (observing that while rational basis is "the least demanding test used by courts," it is not "toothless"), citing Mathews v. Lucas, 427 U.S. 495, 510 (1976), and its reference to Jimenez v. Weinberger, supra); Kitchen v. Herbert, 755 F.3d 1193, 1221(10th Cir. 2014), citing Jimenez v. Weinberger, supra, as an example of an underinclusive statute which conclusively excluded a subclass of individuals who were, in fact, otherwise statutorily qualified to be in the class of recipients for the statutory benefit); Martin v. Bergland 639 F.2d 647, 650 (10th Cir. 1981) (citing Jimenez for the proposition "some plaintiffs have succeeded under the rational basis test in overcoming the presumption of validity generally accorded government action."). 83 Jimenez v. Weinberger, 417 U.S. at 637. 84 See, e.g., 85A O.S.Supp. 2013 § 35 (A)(1): "Every employer shall secure compensation as provided under this act to its employees for compensable injuries without regard to fault." 85 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972). 86 Weber, 406 U.S. at 175. 87 Employer's argument is that a legislative body may constitutionally prohibit one class of people from exercising a right (injured workers filing nonfraudulent claims) because another group of people abuse that right (workers filing fraudulent claims). Workers' compensation fraud is punishable as a criminal felony in Oklahoma. 21 O.S.2011 § 1663. The issue of if, or when, a legislative body may constitutionally stop one group of people from exercising a right granted or recognized by law and prohibiting their innocent conduct because another group of people engage in criminal activity is an issue which arises frequently in various political debates involving issues beyond the scope of workers' compensation jurisprudence. We need not decide the issue today. 88 In District Court common-law actions fraud is "never presumed, but must be affirmatively alleged and proven by the party who relies on it, and cannot be inferred from facts which may be consistent with honesty of purpose." Albert & Harlow, Inc. v. Fitzgerald, 1964 OK 42, 389 P.2d 994, 996, citing Stafford v. McDougal, 1935 OK 251, 42 P.2d 520. In District Court, the issue of fraud is generally a question of fact that must be proved, even when it is inferred from facts and circumstances. Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1046, citing 15 O.S.2011 § 60; Bloch v. Morgan, 1926 OK 163, 244 P. 176; and Singleton v. LePak, 1967 OK 37, ¶ 13, 425 P.2d 974, 978. Prohibiting an employee from filing a District Court action against an employer has no relationship to preventing that person from filing a fraudulent claim before the Workers' Compensation Commission, an administrative agency. 89 Jay M. Feinman, The Jurisprudence of Classification, 41 Stan. L. Rev. 661, 664 (1980). 90 We construe the reliance upon § 5 by respondent and amicus curiae as an effort to show the rationality of § 2(14). While we conclude an unconstitutional application of § 2 (14) occurred, we make no conclusion or holding on the constitutionality of § 5 due to our disposition of this appeal. See opinion part VI. The Grand Bargain, herein. 91 See the discussion of the grand bargain in note 6, supra, and its accompanying text. 92 Matthew J. Kane, The Need for Reform in Our Employers Liability Laws, 20 Yale L.J. 353, 356 (1911). 93 Parret v. UNICCO Service Co., 2005 OK 54, ¶ 19, 127 P.3d 572, 577-578 quoting Corbin v. Wilkinson, 1935 OK 977, 52 P.2d 45, 48 ("Workers' compensation was designed to avoid destitution. It 'was passed for the special benefit of injured work[ers]. The Legislature intended the benefits of the act shall flow to the injured work [ers] and their dependents, in order to afford them a living and prevent them from becoming public charges.'"). 94 See, e.g., State ex rel. Wright v. Oklahoma Corp. Com'n, 2007 OK 73, ¶ 28 & n. 17, 170 P.3d 1024, 1034 (stating principle and collecting some of our cases from 2007, 1997, 1937, 1935, and a 1912 opinion from the Court of Criminal Appeals). 95 St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 919. 96 This was recognized early in the history of our State, by R. L. 1910, § 4642 (12 O.S.2011 § 2): The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma, but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object. 97 For example, we need not address whether Okla. Const. Art. 2 § 7 protects unenumerated rights derived from the nature of liberty, or the proper analysis for determining the nature of State constitutional rights, or the nature and scope of a party's burden to create a factual record sufficient to support such an inquiry, or any other legal issue involved with such inquiry. But see, generally, Joshua D. Hawley, The Intellectual Origins of (Modern) Substantive Due Process, 93 Tex. L. Rev. 275, 280 -281 (2014) (arguing that modern substantive due process should be conceptualized as a doctrine of unenumerated rights derived from the nature of liberty), and compare Draper v. State, 1980 OK 117, 621 P.2d 1142, 1145 ("The Constitution, the bulwark to which all statutes must yield, must be construed with reference to the fundamental principals which support it. Effect must be given to the intent of its framers and of the people adopting it."). 98 Okla. Const. Art. 2 § 6: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. 99 Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779, 800 (the Court does not issue advisory opinions or answer hypothetical questions); Baby F. v. Oklahoma County Dist Ct., 2015 OK 24, ¶ 11, 348 P.3d 1080, 1084 (A hypothetical issue includes circumstances where adjudication of that issue will fail to grant effective legal relief). 100 A workers' compensation proceeding is a statutory public-law proceeding (not a private dispute) and when resolving a public-law question therein the Court may sua sponte choose the dispositive public-law theory. Yeatman v. Northern Oklahoma Resopurce Ceneter of Enid, 2004 OK 27, nn. 28, 29, ¶ 15, 89 P.3d 1095, 1101. However, a public-law theory may not be used by the Court when the record on appeal is insufficient to support that theory. Lincoln Farm, L.L.C. v. Oppliger, 2013 OK 85, n. 19, 315 P.3d 971, 977. 101 See note 18, supra, and the discussion explaining a party who challenges the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute. 102 Non-Hohfeldian standing is when plaintiff sues to secure judicial relief that would benefit a public entity or the community as a whole, but Hohfeldian standing is when a plaintiff seeks to adjudicate his or her claimed right, privilege, immunity, or power with respect to another party. State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, n. 135, 264 P.3d 1197, 1228; State ex rel. Macy v. Bd. of County Comr's of Oklahoma County, 1999 OK 53, n. 28, 986 P.2d at 1138. COLBERT, J., concurring specially with whom WATT, J., joins. ¶1 I concur in the majority's result that the arbitrary 180-day limitation on cumulative trauma injuries is unconstitutional, but write separately to explain how the provision also violates Article 2, Section 6 of the Oklahoma Constitution. ¶2 The Oklahoma Constitution guarantees that all courts "shall be open to every person, and a speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Okla. Const. art. 2, § 6. The constitutional provision embodies three distinct constitutional guarantees: (1) access to the courts; (2) right-to-a-remedy for every wrong and every injury to person, property, or reputation; and (3) prohibition on the sale or denial of justice. ¶3 The majority and the Attorney General emphasize the Legislature's police power and the Legislature's right in crafting a workers' compensation scheme. In intimating that the Legislature enjoys unfettered discretion in abolishing a claimant's right or benefit, the majority postulates that such authority is only curtailed (1) when the Legislature creates an unconstitutional condition related to that right or benefit, (2) by the expressed Will of the People in the Oklahoma Constitution provisions prohibiting unreasonable and arbitrary legislation, and (3) other Oklahoma constitutional provisions addressing private rights and due process. See Op. at ¶ 26 & fns. 42-44. However, the majority's analysis is incomplete. The Legislature's police power is not absolute. In crafting a substitute remedy, the Legislature's police power is also limited by Article 2, Section 6 of the Oklahoma Constitution. When the Legislature taketh away all of an employee's work-related common law actions in tort and places such actions in the exclusive purview of the Administrative Act, that police power must also be curtailed by the industrial bargain's delicate balance. ¶4 I must again emphasize that the foundation of the Oklahoma workers' compensation scheme is the "Industrial Bargain" also known as the "Grand Bargain." Yet, I am constrained to repeat ad nauseam the underlying policies and purposes behind it. That system, as explained in Parret v. Unicco Serv. Co., provides an expeditious, inexpensive means to compensate workers for injuries, disabilities, and deaths sustained in the course of their employment, without a determination of fault. See 2005 OK 54, 127 P.3d 572. The employee is afforded swift and certain payment of benefits sufficient to cure or relieve the effects of the injury, while giving up a myriad of potential damages available to him in tort. The employer, on the other hand, assumes liability for an employee's injury or death, but benefits from the limited liability fixed to loss wages, medical, and vocational rehabilitation occasioned by the work-related injury or death. Clearly, the linchpin of this legislatively created bargain is that the employer assumes liability for work-related injuries and death; while the employee gives up any common law action sounding in tort. In essence, the system strikes a balance between the rights and duties of Oklahoma employers and employees. But with the enactment of the Administrative Workers' Compensation Act (AWCA), the balance is now off kilter and has become one-sided to the benefit of the employer. ¶5 Following the enactment of the AWCA, this Court has begun to see an influx of constitutional challenges to the Act. Although each case presents a unique set of issues, a common theme exists–the systematic erosion of the Industrial or Grand Bargain. This Court, fully aware of the rapid demise of the Grand Bargain, assured Oklahoma workers that we would address the Act's constitutionality, provision by provision, "as a case or controversy or a justiciable issue is presented to this Court." Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924. We are forced by our jurisprudence to insure that claimants and employers in the workers' compensation system have their day in court and receive a fair shake. ¶6 Simply put, the Administrative Act abrogates an injured employee's bargained remedies, and at times, leaves the employee bereft of any legally cognizable recourse. COMBS, V.C.J., concurring specially, with whom WATT, J., joins: ¶1 While I agree with the majority that the 180-day limitation provision in 85A O.S. Supp. 2013 § 2(14) is unconstitutional as applied to Petitioner on substantive due process grounds, I write separately to emphasize that it also amounts to a denial of equal protection under the law to Petitioner and those similarly situated, in violation of Okla. Const., art. 2, §§ 6 & 7.1 ¶2 In Dean v. Multiple Injury Trust Fund, 2006 OK 78, ¶19-22, 145 P.3d 1097, this Court considered whether special treatment of the Multiple Injury Trust fund as compared to other workers' compensation insurers violated, amongst other provisions, Okla. Const., art. 2, §§ 6 & 7. This Court explained: [i]n testing the validity of a state statute that differentiates in its treatment of one group of individuals over other groups, a common test is applied when considering due process of law, equal protection of the laws, and special as distinguished from general laws: that is whether the classification forming the basis for the differentiation is arbitrary or capricious, and whether it bears a reasonable relation to the object to be considered. Dean, 2006 OK 78, ¶19. In that cause, because of its unique status and continuing problem with timely payment of awards due to lack of funds, this Court determined treating the Multiple Injury Trust Fund different from other workers compensation insurers satisfied the above-quoted standard. Dean, 2006 OK 78, ¶22. ¶3 In Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, 66 P.3d 442, this Court upheld a classification built into the Governmental Tort Claims Act (GTCA) that immunized the state and political subdivisions from liability for on-the-job injuries covered by worker's compensation. Describing the challenged provision, the Court stated: "[i]n short, while the state and political subdivisions are not liable for injuries to tort claimants who stand covered by the workers' compensation regime, they are legally accountable for the injuries to tort claimants not otherwise protected." Gladstone, 2003 OK 30, ¶13. Describing the appellant's argument, this Court noted: [t]he hardship Gladstone complains of is the arguable unfairness in treating governmental tort claimants who are covered by workers' compensation differently from persons without that coverage. The latter class not only may sue in tort to recover damages for the negligent acts of governmental tortfeasors but is also accorded access to collateral indemnity sources without losing the right to press a public tort claim. The critical question here is whether the classification in question rests upon a difference which bears a reasonable relationship to the goals of the GTCA. Gladstone, 2003 OK 30, ¶14. In Gladstone, this court determined that excluding liability under the GTCA for injuries covered by workers' compensation was rationally related to the legitimate state interest of protecting the public fisc by eliminating public liability for injuries where a collateral source of indemnity was available. 2003 OK 30, ¶18. The Court concluded: "[w]e cannot say that the challenged classification so lacks rationality as to amount to a denial of equal protection." Gladstone, 2003 OK 30, ¶18. ¶4 The classification in the present cause, however, goes considerably further than the one this court analyzed in Gladstone. Title 85A O.S. Supp. 2013 § 2(14) provides: "Cumulative trauma" means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee's course and scope of employment. Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer; Section 2(14) defines "cumulative trauma" in a particular manner: as an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. It then, however, adds an arbitrary minimum employment period of 180 days. Two claimants may both have injuries caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment, but if one has 179 days of continuous active employment with the employer and the other has 180 days, the former does not have cumulative trauma. ¶5 Unlike in Gladstone, where the classification operated to bar public tort liability for individuals who had a collateral source of recovery, the exclusive remedy provision of the Administrative Workers' Compensation Act (AWCA), 85A O.S. Supp. 2013 § 5 and the 180-day cutoff in 85A O.S. Supp. 2013 § 2(14) create a classification that completely bars Petitioner and others in Petitioner's position from recovering for their injuries at all. In this regard, the 180-day line separating who may recover for potentially identical injuries on cumulative trauma grounds is not only arbitrary, but fundamentally unjust. ¶6 Under the provisions of the AWCA, specifically 85A O.S. Supp. 2013 §2(14) and §5, an entire class of injured employees that includes the Petitioner in this cause are left with no remedy at all. They are barred from recovering for cumulative trauma by 85A O.S. Supp. 2013 §2(14)'s imposition of an arbitrary 180-day cutoff that has no reasonable relation to the goals of the AWCA and they are barred from pursuing any tort claim by the exclusive remedy provision, 85A O.S. Supp. 2013 § 5. This complete bar to recovery implicates the equal protection aspect of Okla. Const., art. 2, § 6 because a subset of injured workers is being denied all access to the courts to attain a remedy available to other injured workers, but denied to them. Barring both a common law tort claim and a workers' compensation claim, leaving claimants in Petitioner's position without any way to recover for their injury, is not reasonably related to the State's interest in preventing workers' compensation fraud. ¶7 To facilitate workers' compensation and its objectives, what has often been called the grand (or industrial) bargain was struck: the employee gave up the right to bring a common law negligence action against the employer and in return received automatic guaranteed benefits. The employer gave up the common law defenses and received reduced exposure to liability. See Parret v. UNICCO Service Co., 2005 OK 54, ¶20, 127 P.3d 572. The grand bargain is not merely the starting point for an analysis to inform the court of what may or may not be legitimate state interests, but the cornerstone of the entire workers' compensation system's legitimacy. By cutting off all recovery for an injured worker, excluding them from both workers' compensation coverage and from filing a tort claim, the Legislature has violated the grand bargain and betrayed the fundamental principles of justice that gave rise to it in the first place. ¶8 I do not dispute that the State has a legitimate interest in preventing workers' compensation fraud. I also agree with the majority's substantive due process analysis. However, I feel it necessary to further emphasize the injustice that has occurred here. The complete roadblock to any recovery for Petitioner's injury is impermissibly arbitrary and not reasonably related to the purposes of the AWCA. FOOTNOTES 1 As the majority correctly points out, many claims alleging violations of substantive due process also support an equal protection claim, because Okla. Const., art. 2, § 7 has an equal protection component. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶12, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995). Okla. Const., art. 2, §§ 6, also contains an equal protection component. See Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶¶12-15, 613 P.2d 1041 ("The courts must be open to all on the same terms without prejudice.").

83772c9d-bc5a-49c1-9f19-de30e5cde94f

Nelson v. Enid Medical Associates, Inc.

oklahoma

Oklahoma Supreme Court

NELSON v. ENID MEDICAL ASSOCIATES, INC.2016 OK 69Case Number: 110665Decided: 06/14/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. WILLIAM P. NELSON, and JON NELSON, individually and as Co-Personal Representatives and/or Co-Executors of the Estate of Ethel A. Nelson, and as Co-Trustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel A. Nelson, Plaintiffs/Appellants, v. ENID MEDICAL ASSOCIATES, INC., and DAVID SHEPHERD, Defendants/Appellees, and UNIVERSAL HEALTH SERVICES, INC., (UHS), individually and d/b/a St. Mary's Regional Medical Center; UHS OF OKLAHOMA, INC., individually and d/b/a St. Mary's Regional Medical Center, ST. MARY'S REGIONAL MEDICAL CENTER, HENRY D. VAUGHAN, a.k.a H. DEAN VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a H. DEAN VAUGHN, RONALD W. SHRECK, and ENID EMERGENCY PHYSICIANS, L.L.P., Defendants. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. I ¶0 A medical malpractice action was brought against several defendants in the District Court for Garfield County. The District Court, Hon. Dennis Hladik, District Judge, granted motions to exclude testimony and for summary judgment requested by two defendants. The trial judge directed entry of a final judgment for the two defendants and certified the order for immediate review. Plaintiffs appealed and the Oklahoma Court of Civil Appeals, Division I, affirmed the order granting summary judgment. Plaintiffs sought certiorari from this Court. We hold the opinions of the two witnesses on the issue of causation satisfied the requirements of 12 O.S. § 2702, and reverse the summary judgment granted by the District Court. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED; AND THE PROCEEDING IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT Robert C. Smith, Jr., Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Oklahoma, for Appellants. Hilton H. Walters, R. Gene Stanley, Rife Walters Stanley & Natarajan LLP, Oklahoma City, Oklahoma, for Appellees. EDMONDSON, J. ¶1 In a medical malpractice action we are asked to review orders excluding testimony from plaintiffs' two expert witnesses and a summary judgment granted to defendants based upon the excluded testimony. We conclude the testimony should not have been excluded. We reverse the orders of the District Court excluding the testimony and granting summary judgment, and remand the cause for further proceedings consistent with the Court's opinion. ¶2 Mrs. Nelson went to the Emergency Department of St. Mary's Regional Medical Center seeking medical assistance at 7:20 p.m. on the evening of July 21, 2006. The emergency room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson's internist and primary care provider. Dr. Shepherd instructed Dr. Vaughan to telephone Dr. Shreck, a surgeon. Dr. Shreck came to the hospital, reduced Mrs. Nelson's hernia, and she was admitted to the hospital. ¶3 One of the tests order by Dr. Vaughan was a CT scan. The CT scan showed free air in Mrs. Nelson's abdomen and required immediate surgery. The CT scan results were faxed to the hospital at 1:50 a.m. on the morning of July 22nd, but neither Dr. Vaughan or Dr. Shreck saw the report at that time. ¶4 The medical record indicates Dr. Shreck reduced Mrs. Nelson's incarcerated hernia by manipulation. Mrs. Nelson became septic, went into septic shock during the morning of July 22nd, and she had a cardiac arrest while being prepared for surgery to address a perforated or dead bowel. She was resuscitated. After the surgery, Mrs. Nelson was given dopamine and Levophed to raise and control her blood pressure. At 3:00 p.m. on July 22nd, Dr. Shepherd switched Mrs. Nelson's medication to vasopressin. At approximately 11:00 p.m., Mrs. Nelson's blood pressure started to fall, her pulse became unstable and she died. ¶5 A medical malpractice action was brought against Mrs. Nelson's medical providers for her last illness. Two defendants, Dr. Shepherd and Enid Medical Associates, moved to exclude the proposed testimony of plaintiffs' two expert witnesses. They argued each witness had not provided legally proper testimony on the issue of the cause of Mrs. Nelson's demise because the testimony did not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The two defendants also sought summary judgment because the causation element of the malpractice claim action was missing from plaintiffs' claim. ¶6 The trial court ruled inadmissible the testimony from plaintiffs' two expert witnesses and granted summary judgment to the two defendants. The trial court made an express determination that there was no just reason for delay and expressly directed the filing of a final judgment. The plaintiffs appealed and the Court of Civil Appeals affirmed the trial court's order. This Court granted plaintiffs' petition for certiorari. Appellate Review Standard for Summary Judgment and a Daubert Order Excluding Testimony on Causation ¶7 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment.1 Summary judgment is proper when a party is entitled to judgment "as a matter of law" based upon the submitted evidentiary materials.2 ¶8 Plaintiffs' action is based upon allegations that the two defendants proximately caused the injuries. A medical malpractice claim, like all negligence claims, contains three elements: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty and (3) plaintiff's injuries proximately caused by the defendant's failure to exercise the required duty of care.3 ¶9 Evidence of causation necessary for a negligence action, proximate cause,4 is usually an issue of fact to be determined by a jury; and proximate causation "becomes a question of law for the court only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury."5 If a defendant establishes there was no legally cognizable causal connection between the defendant's conduct and the injuries suffered by the plaintiff, then the issue of causation becomes a question of law, and a defendant is entitled to summary judgment as a matter of law.6 ¶10 Defendants' combined motion for summary judgment argued: "Plaintiffs cannot establish causation, an element of negligence, against Dr. Shepherd. Therefore, Dr. Shepherd is entitled to summary judgment." Defendants supported this statement referencing the trial court's previous determination that Dr. Russell's testimony was inadmissible upon application of the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. ¶11 In Christian v. Gray we explained a clear abuse of discretion appellate standard applies when we review a decision on the admissibility of expert testimony, and a clear abuse of discretion may be shown by an error of law or an error of fact: "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling."7 A trial court determination that no fact exists of record to support the issue of fact submitted for resolution is a determination of an issue of law and requires a de novo review.8 Thus, a trial court determination that no fact exists in the trial court record, i.e., a complete absence of proof, to support the reliability of a particular expert for the purpose of admission of that expert's opinion presents an issue for de novo review.9 ¶12 In summary, we use a nondeferential appellate standard and review de novo a trial court's order granting summary judgment, and we use a nondeferential appellate standard and review de novo a trial court's Daubert order which determines the lack of facts supporting the reliability of a particular expert's opinion for the purpose of admission at trial. The Daubert Challenge and the Record ¶13 The Oklahoma Evidence Code, § 2702, provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case."10 An expert's opinion must be "based on what is known,"11 i.e. facts and data, that are then used as part of a reliable method in forming an opinion. ¶14 Plaintiffs' response to the Daubert motion included Dr. Russell's opinion, and various articles and portions of depositions. His opinion relies on various published peer-reviewed articles. One of these is an article stating doses of vasopressin greater than 0.04 units/minute have been associated with decreases in cardiac output and cardiac arrest. Mrs. Nelson received a vasopressin "fixed dose" of 0.20 units/minute which was not tapered during infusion, although the order had been given by Dr. Shepherd to taper her dose. Dr. Russell testified that "the use of vasopressin in septic shock is off label... [and] many of the drugs we use in intensive care are by some definition off label ... [and this results in dosing off label] because there's no label for vasopressin in septic shock." Dr. Russell did not object to Mrs. Nelson receiving vasopressin, he objected to the dosage she received and that it was not a tapered dosage. ¶15 Defendants argue the recommended dosage for vasopressin in the published articles relied on by Dr. Russell are overly cautious concerning potential cardiac complications and not based upon science. Attached to plaintiffs' response is a statement by Dr. Russell stating that it is not speculation that a 0.2 units/min dose of vasopressin can cause cardiac arrest. He stated that "the precise dose of vasopressin that causes coronary vasoconstriction in humans is difficult to know, but that based on my studies and the literature the dose is in the range of 0.08 to .1 units/minute." He relies upon a 2001 published study,12 and statements in this study are challenged by defendants. Defendants argue the opinions by Dr. Russell and Dr. Sheena are mere speculation and are not based upon scientific research or proper clinical observation. Defendants' motion is accompanied by photocopies of several articles in their Appendix of Literature. ¶16 Dr. Russell relies upon his clinical experience (observation), a published report based upon a review of the literature for treatment of septic shock patients, published studies utilizing case reports, an animal study, a published manual stating some effects of vasopressin, a document on vasopressin representing the source of its information as a "package insert," a document authored by an individual with the academic credential of a "Pharm. D.," and to some extent the additional studies cited in these publications. ¶17 Defendants challenge Dr. Russell's reliance on an article: "Surviving Sepsis Campaign guidelines for management of severe sepsis and septic shock," with fourteen authors for the Surviving Sepsis Campaign Management Guidelines Committee, sponsored by eleven different medical professional organizations, and published by the Society of Critical Care Medicine in Critical Care Med, as well as in Intensive Care Medicine. The methodology of this article was based upon "a systematic review of the literature" for the purpose of developing "management guidelines for severe sepsis and septic shock," and the study includes a recommendation for vasopressin dosage. This article states "Doses of vasopressin >0.04 units/min have been associated with myocardial ischemia, significant decreases in cardiac output, and cardiac arrest."13 This article grades its recommendations and evidence and qualifies its statement concerning vasopressin as supported "by level IV or V evidence:" "nonrandomized, historical controls and expert opinion" and "Case series, uncontrolled studies, and expert opinion."14 Dr. Russell participated in some of the research reported in this article, including an article published in Intensive Care Med. in 2001,15 an article which defendants challenge as unscientific if used for adopting its observation that dosages in excess of 0.04 units/minute can cause or create cardiac complications. ¶18 A portion of the trial court's order not challenged in this proceeding states "For the purpose of this motion, . . . the Vasopressin dosage administered by Dr. Shepherd was excessive for Mrs. Nelson's ailment and a negligent act." (Emphasis added). Attached to plaintiffs' response to Dr. Shepherd's Daubert motion is a portion of Dr. Shepherd's deposition where he explained: "I think the dose I wrote was a mistake. The question, I guess, is whether or not it caused harm." Thus, while defendants appear to agree with recommendations in the literature for the proper dosage of vasopressin in patients similar to Mrs. Nelson, they disagree whether statements in the literature associating a high dose with adverse cardiac effects are conclusions based in science. ¶19 One of the resources relied on by Dr. Russell is a 2004 animal study involving Yorkshire pigs and performed at a university hospital in Pittsburgh. The abstract of the study states in part, "The data indicate that the safe dose range for exogenous vasopressin in septic shock is narrow and support the current practice of fixed low-dose administration, generally 0.04 units/min and in no case exceeding 0.1 units/min." Dr. Russell cites an American Heart Association manual with a Pharmacology Summary Table stating "Precautions/Contraindications" for vasopressin: "Potent peripheral vasoconstrictor. Increased peripheral vascular resistance may provoke cardiac ischemia and angina. Not recommended for responsive patients with coronary artery disease." Dr. Russell does not rely on only case studies, or only animal studies, or only his clinical experience as a physician who studies this topic, or only his understanding of, and argument concerning, the pharmacological properties of vasopressin, but on all of these areas. ¶20 Defendants filed an appendix of literature containing 10 articles,16 of three of which Dr. Russell is one of the authors,17 one in which Dr. Russell is responding to comments on a published study,18 and one involving a controlled infusion of vasopressin at 0.04 units/minute and which supports Dr. Russell's conclusion on a beneficial dosage.19 ¶21 In the remaining five articles, three do not expressly contradict Dr. Russell's testimony on causation, but appear to have been used to show what is generally accepted concerning vasopressin. The first, Beale and Hollenberg, et al., (2004), states "there is still inadequate understanding as to the mechanisms and potential therapeutic risk/benefit ratio of the use of vasopressin in septic shock. At this stage, vasopressin should only be used as part of properly constructed clinical trials until more information is available."20 Beale and Hollenberg's conclusion may be simply stated, don't use vasopressin unless in a clinical trial because its mechanisms are not fully understood. ¶22 The second, an article by J. C. Russell and P. J. Glover (2002), reviews the published studies and repeats Dr. J. A. Russell's observation that some cardiac arrests occurred in patients who had received "doses greater than 0.05 U/min." The article also states "Although heart rate may slow, bradycardia has not been reported in septic patients with low dose infusions." These authors note: "There has been some concern expressed over the possibility of excessive vasoconstriction caused by vasopressin. Pharmacological doses have been shown to cause significant coronary and mesenteric ischaemia and it has been suggested that vasopressin should be used cautiously, if at all, in patients with symptomatic coronary artery disease."21 This study also states that data concerning the clinically important adverse effects of vasopressin are lacking due to small study sizes and wide patient variability. ¶23 The third article, by Klinzing & Simon (2003), notes Dr. Russell's study which "found a decrease in cardiac index when vasopressin was given in doses 0.04 IU/min." These authors note that "vasopressin has well-known vasoconstrictive properties in the splanchnic area." They found: "Globally vasopressin caused a significant decrease in heart rate, cardiac output, and oxygen uptake."22 The reduction in global oxygen delivery was partially compensated by increased oxygen extraction. These authors stated "a substantial reduction in cardiac output" was observed with a vasopressin dosage, "a mechanism for increased fractional splanchnic flow with the decreased cardiac output during vasopressin infusion is also unknown."23 ¶24 The last two articles contain a critical comment on Dr. Russell's conclusion on causation of serious cardiac complications from vasopressin. The first, Torgersen and Dünser (2010), involved research where different doses were administered to two groups, one group of 25 persons received 0.067 and the other group of 25 persons received 0.033 IU/minute dose.24 They state Dr. Russell's 2001 article "did not prove a causative relationship between the occurrence of adverse events and VP doses >0.04 IU/min." However, their opinion on Dr. Russell's failure of proof is based upon their characterization that Dr. Russell's study was "uncontrolled" and "observational." They do state that results of their study and one by Luckner and Mayr (Crit Care Med 35:2280-2285) "are in contrast to the findings of a cases series" study authored, in part, by Dr. Russell. It appears the distinction being drawn by the data reported by Torgersen and Dünser involves the beneficial use of a dosage at 0.066 or 0.067 IU/min in the Torgerson/Luckner studies instead of Dr. Russell's recommended dosage of 0.04 IU/minute and less. ¶25 Torgersen and Dünser also state that certain baseline differences existed between their 0.033 IU/minute group and their 0.067 group, and "these baseline differences do not allow drawing firm clinical conclusions on the effects of the two AVP dose regimes on heart function."25 Torgersen and Dünser's study had 50 patients with 25 receiving the higher dose, and Dr. Russell's study involved 50 patients receiving various amounts of vasopressin and cardiac arrests suffered by four patients who had a dosage "more than 0.05" units per minute. ¶26 The second article is a 2010 published study by authors Bauer and Lam, and which reviews recently published studies, including "the Vasopressin and Septic Shock Trial (VASST) and its subgroup analyses."26 Although the article opines, "A major challenge in the attempt to determine which dose of arginine vasopressin should be used is that the true physiologic arginine vasopressin response during septic shock has not been fully elucidated," it concludes "since arginine vasopressin doses as low as 0.01 unit/minute have yielded both physiologic replacement levels of vasopressin and blood pressure increase, it may be a reasonable starting dose for patients."27 This recommended dose is based upon certain physiological responses. ¶27 Bauer and Lam challenge the conclusion "Doses of vasopressin >0.04 units/min have been associated with myocardial ischemia, significant decreases in cardiac output, and cardiac arrest" since this study [by Dr. Russell and others] did not include a "matched cohort."28 They conclude: "These data suggest that the occurrence of adverse effects of arginine vasopressin in general and with arginine vasopressin doses above 0.04 unit/minute may be lower than previously hypothesized." Bauer and Lam cite two published studies, one of which was co-authored by Dr. Russell and published in the New England Journal of Medicine in 2008, and the other article was published in Intensive Care Med in 2006. ¶28 Dr. Russell disagrees with Bauer and Lam's criticism of his 2001 study and argues that his 2008 "randomized controlled trial of vasopressin" excluded patients with acute coronary syndromes and or severe heart failure, and adverse reactions to high dose vasopressin could be observed in patients with a history of heart disease because of the reported adverse effect of decreased cardiac output associated with a high dose: "Thus, when vasopressin is infused at a safe, low dose of up to 0.03 units/minute, there was not an increased risk of cardiac arrest, emphasizing again Dr. Russell's research and recommendations repeatedly in his studies of the importance of the use of low dose vasopressin infusion in septic shock."29 Indeed, some of the publications used by Defendants support Dr. Russell's conclusion for a vasopressin dosage of 0.04 units/minute or less in circumstances of septic shock.30 ¶29 In summary, defendants argued "it is speculation that Vasopressin causes a decreased cardiac index and cardiac arrest." Klinzing and Simon state an observed reduction in cardiac output when vasopressin is used, although they do not explain the causal mechanism. J. C. Russell and P. J. Glover state that "Pharmacological doses have been shown to cause significant coronary and mesenteric ischaemia . . . ." Beale and Hollenberg's conclusion may be simply stated, don't use vasopressin unless in a clinical trial because its mechanisms are not fully understood. Torgersen and Dünser criticize Dr. Russell's conclusion associating higher dosages of vasopressin with cardiac complications, but decline to draw "firm clinical conclusions" on the effects of the two studied dose regimes on heart function. Dr. Russell disagrees with some of the conclusions of Bauer and Lam. Application of Daubert and General Causation ¶30 In Christian v. Gray, we explained causation is often divided into general causation and specific causation in some controversies involving allegations of injury resulting from a person's exposure to a harmful substance. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether that substance caused the particular individual's injury.31 Defendants raised the issue of general causation by challenging the opinion of plaintiffs' witnesses that vasopression is a coronary vasoconstrictive or that it causes a decreased cardiac index or cardiac arrest. When an external agent is the alleged cause of injury, an expert witness typically "demonstrate[s] that the medical and scientific literature provides evidence that in some circumstances the exposure under consideration can cause the outcome under consideration," (thus showing general causation);32 and the next step is to "apply this general knowledge to the specific circumstances of the case at hand, incorporating the specifics of exposure, mitigating or exacerbating influences, individual susceptibilities, competing or synergistic causes, and any other relevant data."33 ¶31 Generally, a trial court "should focus on the experts' methodology rather than the conclusions that they generate."34 But because conclusions and methodology are not entirely distinct from one another, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered," i.e., whether the expert has unjustifiably extrapolated from an accepted premise [or data] to an unfounded conclusion.35 Federal courts have stated a trial judge is not required to be a scientist, but is required to determine whether the expert's method in reaching a conclusion is "scientifically sound" "and that the opinion is based on facts which sufficiently satisfy [Federal] Rule 702's reliability requirements."36 ¶32 The trial court found significant that "Dr. Russell's opinion is not supported by any published articles." The trial court noted that Dr. Russell "relies heavily" upon a published study he authored which recommended a fixed specific dose of vasopressin for patients with severe septic shock. The trial court found legally significant the statement in the article that the study does not "draw any conclusions regarding the effect of vasopressin on mortality in severe septic shock." The trial court stated that Dr. Russell has "not tested his theory," and his study has been criticized. The trial court did not comment on studies which rely on information in Dr. Russell's studies. This analysis by the trial court addresses general causation. ¶33 Defendants' argument on general causation is that there is simply too great an analytical gap between the data and the opinion proffered on vasopressin causing cardiac complications. They cite the Tenth Circuit opinion in Hollander v. Sandoz37 in support of their argument. In Hollander, an witness gave an opinion on bromocriptine, but the "generic assumption that bromocriptine behaves like other ergot alkaloids carries little scientific value."38 In Hollander, a witness opined in support of plaintiff's action that an active ingredient in the drug caused an increase in blood pressure, but it was held necessary for the witness to give a pharmacological explanation why animal studies showed decreases in blood pressure from this same ingredient, and this explanation had not been tested. In Hollander, the use of case reports to show general causation was rejected, in part, because of the "scant number" of case reports showing injury compared to the number of persons who had used the drug.39 Hollander does not require epidemiology toxicologic studies to satisfy the scientific reliability of an expert witness on the issue of causation. ¶34 Evidence of general causation may take different forms utilizing different methods of analysis, one of which may be the form of peer-reviewed published studies using various analytical methods.40 Of course, a professional publication "is not a sine qua non of admissibility; it does not necessarily correlate with reliability."41 Dr. Russell's reliance upon published professional peer-reviewed studies is one methodology which satisfies Daubert and 12 O.S. § 2702 when it is based upon studies which comport with the dictates of good science, as opposed to an opinion based upon "junk science." In Daubert, the Supreme Court developed a four-pronged but flexible test to determine the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission: (1) peer review and publication; (2) the known or potential rate of error; (3) general acceptance; and (4) testing a theory by attempting to find evidence to disprove it (falsification).42 ¶35 A nonexhaustive list of accepted methodologies for scientifically determining general causation of an injury from a toxic and external substance includes epidemiology and in vivo and in vitro toxicologic studies as well as chemical analysis of the substance and adverse case reports. These methods have greater and lesser degrees of scientific reliability for conclusions determining causation due to varied techniques for acquiring the data and the type of data collected.43 For example, while two authors place "chemical structure analysis" and "adverse case reports" at "the bottom of the scientific probity barrel," they do recognize that these two methods "are marginally relevant to the question of general causation."44 The Reference Manual on Scientific Evidence states case reports may be all that is available, and while causal attribution based on case studies must be considered with caution, "such studies may be carefully considered in light of other information available."45 Generally, toxicology models based upon animal studies may be used to determine toxicity in humans, within certain limitations, including the limitation of extrapolating results to a different species.46 The third edition of the Reference Manual on Scientific Evidence explains when considering the presence or absence of risk factors "physicians will often use any type of evidence that might support causation, for example, biological plausibility, physiological drug effects, case reports, or temporal proximity to exposure."47 Additionally, "Although physicians use epidemiological studies in their decisionmaking, 'they are accustomed to use any reliable data to assess causality, no matter what their source' because they must make care decisions even in the face of uncertainty."48 ¶36 Dr. Russell's opinion is not voiced contra mundum, against the world. Some do not agree with his conclusions and object to one of his studies lacking a matched cohort. The defendants' view of the nature of scientific proof appears to be that it must speak with one voice to satisfy the "general acceptance" element to Daubert and be truly scientific. In a post-Joiner case,49 the U. S. Court of Appeals for the First Circuit has noted "[t]he mere fact that two experts disagree is not grounds for excluding one's testimony;"50 and the First and Third Circuits have noted "[W]itnesses may be competent to testify as experts even though they may not, in the court's eyes, be the 'best' qualified. Who is 'best' qualified is a matter of weight upon which reasonable jurors may disagree."51 This Court has made similar observations.52 While a court must assess science and not merely witness qualifications,53 it "need not weigh or choose between two legitimate but conflicting scientific views."54 Two expert witnesses may each rely upon good science and reach different conclusions. ¶37 Dr. Russell's opinion is based upon published case studies, an animal study, clinical experience,55 and a pharmacologic description of vasopressin which, according to his opinion, give consistent information in support of his opinion on high-dose vasopressin. Dr. Russell's opinion concerning cardiac complications with vasopressin associated with a reduction in cardiac output and coronary ischemia is based upon literature in the record before us. The trial court stated that Dr. Russell is "highly credentialed," "has been involved in research on Vasopressin as it relates to septic shock," and "presented numerous papers on the topic and presented talks at international meetings." Dr. Russell gave an opinion based upon his own published research prior to Mrs. Nelson's injury. In the Ninth Circuit Court of Appeals after remand in Daubert, the appellate court made the following observation. . . . experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party's interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint on parties' ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were "derived by the scientific method." Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) cert. denied, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d 126 (1995). Some do not agree with Dr. Russell's conclusions while others use his studies in conjunction with their own for explaining the possible roles of vasopressin. While some may not agree with Dr. Russell's conclusions, his method of combining arguably consistent case studies, including those predating Mrs. Nelson's injury, animal studies, evidence of known pharmacologic attributes of a drug, and all in the absence of contrary scientific studies or other evidence of greater reliability, satisfy Daubert's reliability standard for showing general causation. Dr. Sheena's opinion concerning a high dosage of vasopressin and its relationship to general causation and cardiac complications is based upon his clinical experience,56 the same literature as Dr. Russell and Dr. Russell's opinion. Dr. Sheena's opinion satisfies Daubert on the issue of general causation. Application of Daubert and Specific Causation ¶38 Specific causation is the cause of the particular individual's injury. In this case, specific causation of Mrs. Nelson's injury is based upon Drs. Russell and Sheena's opinions on internal causation (the underlying physiological mechanisms producing observed signs and symptoms) and external causation (the relationship between environmental factors (such as chemical exposure or a medication) and the illness actually suffered by Mrs. Nelson.57 In summary, is the dosage of vasopressin the specific cause Mrs. Nelson's injury?58 ¶39 Dr. Russell testified that the dose of vasopressin given to Mrs. Nelson "certainly could be coronary vasoconstrictive." He was asked if the dose "was vasoconstrictive," and he replied that "we can't measure that directly," and then replied "it's probable, yes." He explained vasopressin has a dose range when it changes from being vasodilatory to vasoconstrictive on the coronary arteries. He also explained the very high dose which would lead to vasoconstriction of end organs, which would increase the workload on the heart, with potential cardiac side effects such as arrhythmias, and cardiac arrest due to asystole or profound bradycardia. He stated his opinion that "the relatively sudden onset of the arrhythmias leading to profound bradycardia leading to essentially asystolic cardiac arrest was contributed to in a significant manner by the very high dose of Vasopressin." ¶40 The trial court characterized Dr. Russell's medical opinion on causation as a legally insufficient "educated guess." The trial court pointed to Dr. Russell's testimony that arrhythmia and bradycardia may occur, (1) in the absence of a high dose of vasopressin, or (2) on a normal dose of vasopressin, or (3) on a normal dose of dopamine or Levophed, or (4) as a result of septic shock. However, Dr. Russell testified the dose of dopamine Mrs. Nelson received would have a significantly less vasoconstrictive effect than the high dose of vasopressin she received. He testified Dr. Shepherd's use of vasopressin as a medication for Mrs. Nelson was proper. However, he also testified the vasopressin dose she was prescribed and received was too high and was sustained for too long a period of time. ¶41 On the issue of specific causation the trial court states Dr. Russell has not ruled out other potential causes of Mrs. Nelson's death. Dr. Russell testified that as patients "stabilize" their dosage of norepinephrine is tapered and then stopped, and then the dosage of vasopressin is tapered and then stopped. He stated one of his concerns was that although there was an order to taper the vasopressin, "there was a fixed dose, as I reviewed it, which remained at that dose, as I understood the chart, for the duration that it was infused." He explained the "standard dose" for septic shock patients at Dr. Russell's hospital. He was asked why he thought the use of vasopressin caused Mrs. Nelson to have a cardiac arrest. He stated, "first, the very high dose which would lead to vasoconstriction of end organs, which would increase the workload on the heart, would potentially cause cardiac side effects such as arrhythmias that were noted, and that does lead to and has been accompanied by cardiac arrest due to asystole or profound bradycardia. So my interpretation is that the relatively sudden onset of the arrhythmias leading to profound bradycardia leading to essentially asystolic cardiac arrest was contributed to in a significant manner by the very high dose of vasopressin." He was then asked and replied affirmatively that similar conditions may arise in the absence of vasopressin with a patient in septic shock, or with a patient administered Levophed or dopamine. ¶42 He was asked if his opinion was speculation on the proper dosage of dopamine and vasopressin and their potential vasoconstrictive effects. He replied his opinion was a judgment based upon clinical responses to doses of dopamine at a specific amount compared to "usual doses of vasopressin," "and then looking at animal studies, looking at higher doses of vasopression and higher doses of dopamine." He stated "In humans we don't directly measure vasoconstriction, and so we have indirect interpretation of other findings. So when we say 'vasoconstriction,' we don't have a test to go and measure it." He further explained data on humans includes studies on dose responses in sepsis patients to different vasopressors and measurements are taken for change of blood pressure, cardiac output, "and change in other vasopressor requirements" "which give us an indirect interpretation of what the vasoconstriction activity is." ¶43 Dr. Sheena testified Mrs. Nelson's death was caused by "a combination of septic shock and the overdose of vasopressin." He quantified Mrs. Nelson's chance of survival immediately post-op as over fifty percent. He stated that a few hours after post-op her chance of survival had been improving because "her clinical parameters had improved." He testified all decisions made by Dr. Shepherd were appropriate except for the dosage of the vasopressin: "he ordered an overdose of vasopressin in treating the patient." ¶44 The trial court pointed out Dr. Sheena's statements on potential causes of arrythmias other than a high dose of vasopressin. However, the trial court also stated that "For the purpose of this motion, this court assumes Dr. Sheena is an experienced and credentialed physician, and that the Vasopressin dosage administered by Dr. Shepherd was excessive for Mrs. Nelson's ailment and a negligent act." The trial court stated: "Daubert requires a showing that Dr. Sheena used a reliable, analytically appropriate method, that has been tested and subjected to peer review, has a known rate of error, and is widely accepted within the medical community. Dr. Sheena offers no proof on these points and nothing to rule out that Dopamine, Levophed, septic shock, or some other natural cause was the sole cause of Mrs. Nelson's death." The trial court concluded that Dr. Sheena's opinion was mere ipse dixit and his proposed testimony was inadmissible.59 ¶45 Dr. Sheena is employed as an emergency room physician at a university medical center and a heart hospital, and once a month teaches medical residents, interns, and medical students at Baylor University Medical Center. He is also employed as a "hospitalist," a physician who admits patients to a hospital from an emergency room, and also treats them during their hospital stay, including patients in an intensive care unit. ¶46 He stated his experience working as a physician in small hospitals. His opinion in this case was based upon his experience, education, and his review of Mrs. Nelson's "entire chart." He stated that in his medical practice "I see people with incarcerated hernias all the time" and he has also treated patients with a perforated bowel and sepsis. However, his experience treating patients with septic shock secondary to a perforated bowel was no more than twenty-five patients in his career. ¶47 He stated his experience in prescribing vasopressin for his patients. He opined concerning Mrs. Nelson's dosage of vasopressin: "vasopressin at those dosages frequently causes. . . decrease[d] blood flow to the splanchnic circulation. It also affects the heart, and in this case, I think it caused her to have a rhythm disturbance...." At this point in his deposition, Dr. Sheena was not asked what authority he was relying on for his opinion on the proper dosage of vasopressin, but was asked whether rhythm disturbances could be caused by dopamine, Levophed, or septic shock as well as the dosage of vasopressin Mrs. Nelson received. He subsequently stated the range for a "standard dose for vasopressin." He stated vasopressin is a vasoconstrictive, and the appropriate dosage will depend upon the patient, and there are relatively higher appropriate dosages in certain circumstances when a patient is not in septic shock. He was not asked to explain his authority for this "standard dose." He was asked how he calculated Mrs. Nelson's percentage chance of survival and how it changed during her hospital stay. He was not asked to explain his opinion on the degree or percentage of contribution to her death which he attributed to the specific dosage of vasopressin she received. ¶48 He stated that a few hours after post-op, and prior to being administered vasopressin, her chance of survival had been improving because "her clinical parameters had improved." He explained, "she had had surgery, and she had finally gotten a couple doses of antibiotics . . . she was in a situation where she was improving as of this point that they started the vasopressin, and you can see how that led to a prompt worsening of her conditioning. . . her clinical worsening had to do with the vasopressin." He stated her chance of survival after surgery was over 50%, and it continued to improve, based on certain clinical parameters, during the five or six hours post-op before the vasopressin began to be administered. He stated that her condition even improved following the initial dose of vasopressin. He concluded that seven hours after the initial dose the high dosage created a cardiac rhythm disturbance. ¶49 The trial court stated Dr. Russell's opinion did not rule out other potential causes of Mrs. Nelson's death because Dr. Russell stated the possibility of Mrs. Nelson experiencing a cardiac arrest in the absence of the dose of vasopressin she received. Similarly, the trial court stated Dr. Sheena "offers no proof on these points and nothing to rule out that Dopamine, Levophed, septic shock, or some other natural cause was the sole cause of Mrs. Nelson's death." The trial court's error on specific causation shown by differential diagnosis is that the opinion need not "rule out" every other potential cause, i.e., vasopressin need not be the sole cause for the opinion testimony to be admissible. ¶50 The Reference Manual on Scientific Evidence notes that "many cases involving issues of external causation have involved witnesses who testify having arrived at an opinion on cause through a process of ruling out or eliminating other causes, a process frequently referred to by the courts and witnesses as 'differential diagnosis' or 'differential etiology.'"60 The U. S. Court of Appeals for the Tenth Circuit has explained the method of "differential diagnosis" in the medical context "is a common method of analysis, and federal courts have regularly found it reliable under Daubert."61 Differential diagnosis is a method where the expert makes a "determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings," i.e., a determination of cause.62 ¶51 Plaintiffs' witnesses used the method of differential diagnosis to evaluate data and then make an opinion on the cause of Mrs. Nelson's demise. In summary, a physician performs a differential diagnosis by first "ruling in" all scientifically plausible causes of the plaintiff's disease or injury, and then "ruling out" the least plausible causes of disease or injury until the most likely cause remains.63 Defendants argued the testimony of plaintiffs' experts possessed the quality of speculation because they could not (1) "rule in" vasopressin as a coronary vasoconstrictive or that it causes a decreased cardiac index or cardiac arrest, and (2) rule out other potential causes of cardiac arrest which were specific to Mrs. Nelson. While the first objection is one of general causation, the latter raises the issue whether the high dose of vasopressin was a specific cause of the injury. ¶52 Most if not all elementary textbooks on statistics explain a statistical truism that correlation is not causation,64 and we have explained, in the context of an individual as opposed to a group, an opinion may not exclusively use the related post hoc ergo propter hoc (after this, because of this) reasoning to show causation.65 But the fact that correlational evidence cannot definitively establish causality does not mean that it may not be some evidence of causality. An expert's opinion may rely on a temporal relationship between an alleged cause and subsequent injury as one factor to show causation.66 ¶53 The facts specific to a patient's exposure to an external cause, in this case a high dosage of vasopressin and the doses of dopamine and Levophed and other medications, are facts specific to a particular individual, and are part of Dr. Russell's analysis and Dr. Sheena's analysis of specific causation. Medical diagnosis "is not an exact science," "physicians make probabilistic judgments on a day-to-day basis," and they must usually consider and assess alternative causal models before accepting a particular model as the preferred explanation.67 Dr. Russell and Dr. Sheena considered dopamine and Levophed and discounted them as causes for Mrs. Nelson's cardiac arrest. They considered alternative causes and offered a reasonable explanation as to why they still believed that the defendants' actions were a substantial factor in causing the injury.68 ¶54 Dr. Sheena testified concerning his experience in prescribing vasopressin for his patients. He testified Mrs. Nelson's death was caused by "a combination of septic shock and the overdose of vasopressin." Dr. Sheena was critical of Dr. Shreck in not finding the CT scan results, starting Mrs. Nelson on antibiotics sooner, and a delay in her surgery of "a four-hour delay, about." Dr. Sheena's only criticism of Dr. Shepherd was the vasopressin dosage. Dr. Sheena testified the dosage was a contributory cause to Mrs. Nelson's injury, with her decreased chance of survival based upon the vasopressin dose. ¶55 In Robinson v. Oklahoma Nephrology Associates, Inc., we explained "A defendant whose conduct contributed to cause a plaintiff's injury is liable for the injury even if his conduct was not sufficient by itself to cause the injury."69 Classification of tortfeasors based upon the type of cause each contributed to a plaintiff's injury is nothing new, and is found in our opinions discussing joint and concurrent tortfeasors,70 as well as well-known legal treatises on causation.71 In Christian v. Gray, we noted the use of the differential diagnosis methodology to isolate the "most probable" cause or the "most likely" cause of injury.72 ¶56 Because the trial court viewed Dr. Sheena's testimony as inadmissible without him "ruling out" other causes of Mrs. Nelson's cardiac arrest, the trial court did not properly address the scope of Dr. Sheena's opinion on contributory causes of the cardiac arrest including the vasopressin dosage. The trial court ruled Dr. Sheena's testimony was inadmissible because it failed to rule out four potential causes, and one of these expressly stated by the trial court was septic shock. Dr. Sheena's testimony specifically and expressly "ruled in" septic shock as a contributing cause and gave his opinion how Mrs. Nelson's septic shock should have been treated upon a more timely viewing of her CT scan and the medical response to such a viewing, such as administration of antibiotics. ¶57 Of course, classifying Dr. Sheena's statements as asserting more than one cause for Mrs. Nelson's injury does not exempt his opinion from the requirements of Daubert. In response to the defendants' Daubert motion, plaintiffs noted Dr. Sheena's experience in following "guidelines for the treatment of septic shock and the use of vasopressin in the treatment of septic shock as a last resort, . . . [and these guidelines] were established by four medical groups, the Society of Critical Care Medicine, the American College of Chest Physicians, the European Society of Internal Medicine, and the American College of Emergency Physicians," of the last of which Dr. Sheena is a member. ¶58 Defendants argue Dr. Sheena does not routinely work as a hospitalist and has not treated a sufficient number of patients similar to Mrs. Nelson in a critical care setting. They argue his treatment of patients in an emergency room is not a critical care setting for the purpose of administering vasopressin. They do not discuss how the clinical experience of a physician with many years of clinical experience treating similar patients in the emergency room of small and teaching hospitals would not provide him or her with knowledge of the potential cardiac complications of high dose vasopressin. They do not challenge his experience as an emergency room physician or the propriety of his dosage standard for administering vasopressin in an emergency room. They fault him for relying upon some of the same research as Dr. Russell. They argue a failure on Dr. Sheena's part to show a temporal relationship between the high dose of vasopressin and the cardiac arrest because vasopressin begins to take effect within a few minutes of being administered. ¶59 There is more to this latter point on a temporal relationship than what is expressly reviewed in defendant's Daubert motion. Dr. Russell stated he had a particular concern about the high "fixed dose" of vasopressin which remained at that fixed dose and was not tapered for the duration of infusion, although the order had been given by Dr. Shepherd to taper the dose. Dr. Russell also testified concerning a published article discussing "a temporal relationship with cardiac effects" grouped "in a four-hour window" after administration of vasopressin and reactions which could occur "later than that." At 3:00 p.m., Mrs. Nelson's medication was switched to vasopressin, and at approximately 11:00 p.m. she died. Dr. Russell testified that "for a number of hours" prior to her death she had poorly perfused extremities, and he opined she suffered from vasoconstriction of end organs with cardiac side effects leading to her death. ¶60 The admissibility of an opinion by physician expert witness on the issue of external causation of a patient's injury is not predicated on the opinion definitively ruling out every potential cause other than the one alleged by a plaintiff. The Reference Manual states as follows. At some level, most diseases have multiple host and environmental factors that contribute to their presence. A commonly held misconception is that the presence of a nontoxic or other toxic cause for a condition automatically excludes a role for the toxin being considered as an external cause . . . The converse can also be true . . . two toxic agents have been found to interact in a synergistic manner so that their combined effects are much greater than event he sum of their individual effects. Even if causal factors do not interact synergistically, several may contribute in an incremental fashion to a disease and should not be assumed to be mutually exclusive. Accordingly, the common statement that "alternative causes of disease must be ruled out" before causation is attributed can be more accurately refined to say that "the role of other causes must be adequately considered." The Federal Judicial Center, Reference Manual on Scientific Evidence, 476 (2d ed.2000) (material and citations omitted). Opinions cited by the Reference Manual in support of this quotation include federal Circuit Court opinions explaining a physician's differential diagnosis is not required to rule out every possible cause to determine a cause of a patient's symptoms, and the existence of possible alternative causes "goes to weight and not admissibility" of the physician's opinion.73 Circuit opinions after publication of the Reference Manual have reached a similar conclusion.74 These opinions are consistent with our opinions such as Robinson v. Oklahoma Nephrology Associates, Inc., supra, and our explanation that a defendant whose conduct contributed to cause a plaintiff's injury is liable for the injury even if his or her conduct was not sufficient by itself to cause the injury. Plaintiffs were not required to provide expert testimony that vasopressin was the sole cause of Mrs. Nelson's injury. ¶61 Drs. Russell and Sheena did not testify the vasopressin dose was the sole cause of Mrs. Nelson's cardiac arrest. Dr. Russell testified that the maintenance of the high dose contributed in a significant manner to the cause of Mrs. Nelson's cardiac arrest. He also stated "in general" a patient may suffer a cardiac arrest while receiving standard doses of Levophed and dopamine, "but in the case of Mrs. Nelson the vasopressin was the cause of the arrest because the doses of both dopamine and Levophed were decreasing before Mrs. Nelson's cardiac arrest and so dopamine and Levophed were not the cause of cardiac arrest." His testimony was that Mrs. Nelson's chart showed some post-operative improvement and her symptoms showing a worsening post-operative condition occurred after vasopressin had been administered. Drs. Russell and Sheena testified on the high dose of vasopressin being the most probable cause or contributory cause to Mrs. Nelson's death. We conclude the testimony of Drs. Russell and Sheena are admissible on the issue of specific causation. Their opinions satisfy the requirements of Daubert and 12 O.S. § 2702, for both general causation and specific causation. Conclusion ¶62 The summary judgment granted to the defendants, David Shepherd, M.D., and Enid Medical Associates, Inc., was based upon the trial court excluding the testimony of Drs. Russell and Sheena. We conclude their testimony should not have been excluded. We reverse the orders of the District Court excluding their testimony and granting summary judgment. The opinion of the Court of Civil Appeals is vacated, and the judgment of the District Court is reversed and the cause is remanded to the District Court for further proceedings consistent with the Court's opinion. ¶63 CONCUR: REIF, C. J., WATT, EDMONDSON, COLBERT, and GURICH, JJ. ¶64 DISSENT: WINCHESTER and TAYLOR, JJ. ¶65 NOT PARTICIPATING: KAUGER, J. ¶66 DISQUALIFIED: COMBS, V.C.J. FOOTNOTES 1 Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106; Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682, 685 (Approved for Publication by the Oklahoma Supreme Court). 2 Scott v. Archon Group, L.P., 2008 OK 45, ¶ 8, 191 P.3d 1207, 1209-1210; Brown v. Patel, 2007 OK 16, ¶ 39, 157 P.3d 117, 129-130. See also Horton v. Hamilton, 2015 OK 6, ¶ 8, 345 P.3d 357, 360 (summary judgment settles only questions of law). 3 Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, ¶ 9, 154 P.3d 1250, 1253-1254, quoting Thompson v. Presbyterian Hospital, 1982 OK 87, 652 P.2d 260, 263. See also Smith v. Hines, 2011 OK 51, ¶ 12, 261 P.3d 1129, 1133 (a medical negligence case has three elements, [1] a duty owed by the defendant to protect the plaintiff from injury, [2] a failure to perform that duty, and [3] injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care); Jones v. Mercy Health Center, Inc., 2006 OK 83, ¶ 15, 155 P.3d 9, 14 (A plaintiff cannot recover for negligence unless the negligence was the proximate cause of the injuries for which the plaintiff seeks compensation), citing Jackson v. Jones, 1995 OK 131, ¶ 8, 907 P.2d 1067, 1072-1073. 4 Johnson v. Mid-South Sports, Inc., 1991 OK 17, 806 P.2d 1107, 1109 ("It is well settled that proximate cause is an essential element of an action in negligence."); Dirickson v. Mings, 1996 OK 2, 910 P.2d 1015, 1019 (proximate cause is defined in our cases as "the efficient cause which sets in motion the chain of circumstances leading to the injury."). Proximate cause consists of both "cause in fact" and "legal cause," the former contains the threshold "but for" causation issue, while the latter is a determination whether liability should be imposed as a matter of law where cause in fact has been established. Jones v. Mercy Health Center, Inc., 2006 OK 83, ¶ 15, 155 P.3d at 14, citing McKellips v. St. Francis Hosp. Inc., 1987 OK 69, ¶ 9, 741 P.2d 467, 470 and Akin v. Missouri Pacific R. Co., 1998 OK 102, n. 79, 977 P.2d 1040, 1054. Akin relies upon W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 41, at 263 (5th ed. 1984). 5 Iglehart v. Board of County Com'rs of Rogers Cnty, 2002 OK 76, ¶ 15, 60 P.3d 497, 504 ("Generally, the proximate cause of an injury in a negligence case is an issue of fact for the jury."). 6 Brewer v. Murray, 2012 OK CIV APP 109, ¶ 26, 292 P.3d 41, 52 (Approved for Publication by Oklahoma Supreme Court, 2012 OK 100, 290 P.3d 758) (If defendant established as a matter of law that there was no causal connection between her negligence and plaintiff's injuries, defendant was entitled to judgment.), citing Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶ 41, 188 P.3d 158, 173, and Iglehart v. Board of County Com'rs of Rogers Cnty, 2002 OK 76, ¶ 15, 60 P.3d 497, 504. See also Minor v. Zidell Trust, 1980 OK 144, 618 P.2d 392 (issue of proximate cause was dispositive and trial court's summary judgment for defendants was affirmed on appeal). 7 Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608 (emphasis added). 8 Christian v. Gray, 2003 OK 10, ¶ 44, 65 P.3d at 609. 9 Christian v. Gray, 2003 OK 10, at ¶ 44, 65 P.3d at 609. The U. S. Court of Appeals for the Tenth Circuit reviews de novo "the question of whether the district court applied the proper legal test in admitting an expert's testimony." Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). In addition to reviewing de novo the application of the proper standard and actually performing a gatekeeper role in the first instance, the federal appellate court also determines whether a federal district court's actual application of Daubert was an abuse of discretion: "we will not disturb the district court's ruling unless it is 'arbitrary, capricious, whimsical or manifestly unreasonable' or when we are convinced that the district court 'made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'" Dodge v. Cotter Corp., 328 F.3d 1212 at 1223, quoting Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163-64 (10th Cir.2000). 10 12 O.S.Supp.2014 § 2702. 11 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 590. 12 Holmes, C.L., Walley, K. R., Chittock, D. R., Lehman T., Russell, J. A., The effects of vasopressin on hemodynamics and renal function in severe septic shock: A Case Series. Intensive Care Med 27: 1416-1421, 2001. 13 Plaintiffs' Response to Daubert Motion of David Shepherd, M.D., to Exclude Plaintiffs' Proffered Expert Opinion Testimony, Record in Accelerated Appeal, Vol. 1, Tab 16, Exhibit 3, numbered notes omitted. 14 This statement in the article cited three publications in support: a 2001 article from Chest on the physiology of vasopressin relevant to the management of septic shock, a 1999 article from J Trauma on low-dose vasopressin in the treatment of vasodilatory septic shock, and a 2001 article from Intensive Care Med, The effects of vasopressin on hemodynamics and renal function in severe septic shock: A Case Series. 15 Holmes, C.L., Walley K.R., Chittock D. R., Lehman T., Russell, J. A., The effects of vasopressin on hemodynamics and renal function in severe septic shock: A Case Series. Intensive Care Med 27: 1416-1421, 2001. 16 Appellate Record Vol. 1, Tab 15, the document has eleven Exhibits ("A" - "K") and articles, but the article in Exhibit "H" is a duplicate photocopy of the Exhibit "C" article. 17 Appellate Record Vol. 1, Tab 15, at Exhibit "D", Vasopressin versus Norepinephrine Infusion in Patients with Septic Shock, James A. Russell, Keith R. Walley, et al., N Engl J Med 2008; 358:877-87; Exhibit "E", The effects of Vasopressin on hemodynamics and renal function in severe septic shock: a case series, Cheryl L. Holmes, Keith R. Walley, Dean R. Chittock, Tara Lehman, James A. Russell, Intensive Care Med 2001; 27:1416-1421; Exhibit "G", Management of Sepsis, James A. Russell, N Engl J Med 2006 355:1699. 18 Appellate Record Vol. 1, Tab 15, at Exhibit "C", Vasopressin in Septic Shock, (Comments and Reply) N Engl J Med 2008; 358:2736-2738. This publication includes a response by Dr. Russell and a co-author explaining why a certain vasopressin dosage was used in a study: "Our choice of the vasopressin dose of 0.03 IU per minute in VASST was based in part on finding an association between an increased risk of cardiac arrest and vasopressin doses greater than 0.04 IU per minute." Id. N Engl J Med 2008; 358:2737 and citing Intensive Care Med 2001; 27:1416-21. 19 Tsuneyoshi and Yamada's study involved a controlled infusion at 0.04 units/minute and supports Dr. Russell's conclusion on a beneficial dosage. Appellate Record Vol. 1, Tab 15 Exhibit "K", Hemodynamic and metabolic effects of low-dose vasopressin infusions in vasodilatory septic shock, Isao Tsuneyoshi, Haruhiko Yamada, et al., Crit Care Med 2001, Vol. 29 No. 3, 487-493. 20 Appellate Record Vol. 1, Tab 15, at Exhibit "B", Vasopressor and inotropic support in septic shock: An evidence based review, Richard Beale, Steven M. Hollenberg, et al., Crit Care Med 32, No. 11 (Suppl.) 2004, S455-S465, at S462. 21 Appellate Record Vol. 1, Tab 15, at Exhibit "F", The Physiology and Clinical Applications of Vasopressin in Critical Illness, J. C. Russell and P. J. Glover, Critical Care and Resuscitation 2002: 4:181-191, at 185, citing Schmid PG, Abboud FM, Wendling MG, et al., Regional vascular effects of vasopressin and vasopressin antagonists. Am J Physiol 1974:227:998-1004. 22 Appellate Record Vol. 1, Tab 15, at Exhibit "I", High-dose vasopressin is not superior to norepinephrine in septic shock, Stefan Klinzing, Mark Simon, et al., Crit Care Med 2003, Vol. 31 No. 11, 2646-2650, at 2648. 23 Id. Klinzing and Simon, et al., Crit Care Med 2003, Vol. 31, No. 11, at 2648-2649. 24 Appellate Record Vol. 1, Tab 15, at Exhibit "J", Comparing two different arginine vasopressin doses in advanced vasodilatory shock: a randomized, controlled, open-label trial, Christian Torgersen, Martin W. Dünser, et al., Intensive Care Med (2010) 36: 57-65. 25 Id. Vol. 1, Tab 15, at Exhibit "J", Comparing two different arginine vasopressin doses in advanced vasodilatory shock: a randomized, controlled, open-label trial, Christian Torgersen, Martin W. Dünser, et al., Intensive Care Med (2010) 36: 57-65, at 63 (discussing the fact that the patients allocated to the 0.033 IU/min group suffered from more chronic heart diseases). 26 Appendix of Literature to Daubert Motion of David Shepherd, M.D., to Exclude Plaintiffs' Proffered Expert Opinion Testimony, Appellate Record, Vol. 1, Tab 15, Exhibit "A", Arginine Vasopressin for the Treatment of Septic Shock in Adults, Seth R. Bauer, Pharm. D. and Simon W. Lam, Pharm. D., Pharmacotherapy Vol. 30, No. 10 (2010) 1057-1071, at 1058. 27 Id. Vol. 1, Tab 15, Exhibit "A", Arginine Vasopressin for the Treatment of Septic Shock in Adults, Bauer & Lam, at 1062, 1064. 28 Id. Vol. 1, Tab 15, Exhibit "A", Arginine Vasopressin for the Treatment of Septic Shock in Adults, Bauer & Lam, at 1064. 29 Plaintiffs' Response to Daubert Motion of David Shepherd, M.D., to Exclude Plaintiffs' Proffered Expert Opinion Testimony, Record in Accelerated Appeal, Vol. 1, Tab 16, Exhibit 1, James A. Russell, Review of Daubert Motion of David Shepherd, at pg.8. 30 In addition to Bauer and Lam, see for example, Defendants' Appendix of Literature, etc, appellate record, Tab 15 Exhibit "K", Hemodynamic and metabolic effects of low-dose vasopressin infusions in vasodilatory septic shock, Isao Tsuneyoshi, Haruhiko Yamada, et al., Crit Care Med 2001, Vol. 29 No. 3, 487-493, where the method was a "prospective case-controlled study" where a continuous intravenous infusion at 0.04 units/min for 16 hours was used, and concluding "low-dose vasopressin infusions may be useful in treating hypotension" in certain patients. 31 Christian v. Gray, at ¶ 21, 65 P.3d at 601. 32 The Federal Judicial Center, Reference Manual on Scientific Evidence, 469 (2d ed.2000). 33 The Federal Judicial Center, Reference Manual on Scientific Evidence, 470 (2d ed.2000). 34 Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1205 (10th Cir.2002) citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 595. 35 Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1205 (10thCir. 2002) quoting General Electric v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). 36 Bitler v. A. O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004) quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999). See also 28 U.S.C.A., Federal Rules of Evidence, Rule 702 (eff. Dec. 1, 2011): A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 37 Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002). 38 Hollander, 289 F.3d at 1207. 39 Hollander, 289 F.3d at 1197, 1209-1211 (A few years after FDA approval and 500,000 patients had taken the drug, the FDA revised the drug's labeling to reflect reports of postpartum hypertension, seizures, and cerebrovascular accidents because the FDA had received seven reports of hypertension alone, seven reports of seizures, and three cases of cerebrovascular accidents (including one fatality); and"the modest number of case reports associating the drug with stroke or even postpartum hypertension is not what would be expected if there was a significant increased risk."). 40 The Federal Judicial Center, Reference Manual on Scientific Evidence, 452 (2d ed.2000) ("To determine general causation, the expert must review the pertinent literature, as familiarity with this literature is key to expert opinion."); Christian v. Gray, 2003 OK 10, ¶ 22, 65 P.3d at 602 (opinion and argument on a lack of studies on the specific alleged causal agent failed to provide for the possibility that the agent had certain physical properties that are shared with other chemical substances that have been subjected to studies). 41 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593,113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 42 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 593-594. 43 See, e.g., The Federal Judicial Center, Reference Manual on Scientific Evidence, 723 (3d ed.2011) (explaining a "hierarchy of medical evidence" and stating "A fundamental principle of evidence-based medicine . . . is that the strength of medical evidence supporting a therapy or strategy is hierarchical."). 44 Michael D. Green and Joseph Sanders, Admissibility Versus Sufficiency: Controlling the Quality of Expert Witness Testimony, 50 Wake Forest L. Rev. 1057, 1069 (2015). 45 The Federal Judicial Center, Reference Manual on Scientific Evidence, 475 (2d ed.2000). The Reference Manual also notes "Courts have given varying treatment to case reports." Id. 475, n. 132. 46 The Federal Judicial Center, Reference Manual on Scientific Evidence, 345-346 (2d ed.2000). 47 The Federal Judicial Center, Reference Manual on Scientific Evidence, 714 (3d ed.2011). 48 Id. Reference Manual on Scientific Evidence, 714 (3d ed.2011). 49 After General Electric v. Joiner, 522 U.S. 136, 146 (1997), it was clear a court a court need not accept testimony with "too great an analytical gap between the data and the opinion proffered." Christian v. Gray, 2003 OK 10, ¶ 36, 65 P.3d 591, 607. 50 Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 2006). 51 Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 2006), quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.1996). 52 Christian v. Gray, 2003 OK 10, n. 20, 65 P.3d 591, 607 (we noted "it is common" for disagreement among medical experts on diagnosis and causation when arriving at their conclusions in a particular case, and questions of conflicting evidence "must be left for the jury's determination."). 53 A witness's qualifications must not be conflated with the reliability of the witness's theory or technique, although it may be considered as a Daubert factor. Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen Years Later, 52 Hous. L. Rev. 1, 153 n. 861 (2014). 54 State v. Farner, 66 S.W.3d 188, 207 (Tenn. 2001). 55 In Christian v. Gray, we noted a published study is not the only form of evidence to show general causation. 2003 OK 10, ¶ 26, 65 P.3d at 604 ("Not all courts have agreed that Daubert requires the same type of methodology for general causation in all circumstances."); Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.2007) ("we do not suggest that an expert must back his or her opinion with published studies that unequivocally support his or her conclusions.") citing Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir.2001) (observing that "there is no requirement that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness"). See also Heller v. Shaw Indus., Inc., 167 F.3d 146, 154 (3d Cir.1999) (concluding that a physician is not required "to rely on definitive published studies before concluding that exposure to a particular object or chemical was the most likely cause of a plaintiff's illness."). 56 Dr. Sheena's clinical experience was challenged by defendants as insufficient to create an opinion on vasopressin. Dr. Sheena's experience is discussed herein in the context of specific causation. 57 The Federal Judicial Center, Reference Manual on Scientific Evidence, 463 (2d ed.2000) ("To arrive at an underlying internal cause, the physician must process the multiple symptoms and signs from a working diagnosis into a single diagnosis or disease, such as multiple vascular strokes as an explanation for dementia). The Federal Judicial Center, Reference Manual on Scientific Evidence, 468 (2d ed.2000), (Evaluation of External Causation: "For the physician, both causal and probabilistic reasoning are the basis for establishing external causation, which is the relationship between environmental factors [work, chemical exposures, lifestyle, medications] and illness, as well as making the more common analysis of internal causation...."). 58 Christian v. Gray, at ¶ 21, 65 P.3d at 601 ("Causation is now often divided into general causation and specific causation in some controversies involving allegations of injury resulting from a person's exposure to a harmful substance . . . specific causation is whether that substance caused the particular individual's injury."). 59 Black's Law Dictionary, 961 (4th ed. 1951) (ipse dixit, "He himself said it; a bare assertion resting on the authority of an individual."). 60 The Federal Judicial Center, Reference Manual on Scientific Evidence, 470, n. 112 (2d ed.2000). 61 Bitler v. A. O. Smith Corp., 400 F.3d 1227, 1236 (10th Cir. 2004), citing Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999); Clausen v. M/V New Carissa, 339 F.3d 1049, 1058-59 (9th Cir. 2003); and Goebel v. Denver and Rio Grande W. R.R. Co., 346 F.3d 987, 999 (10th Cir. 2003). 62 Bitler v. A. O. Smith Corp., 400 F.3d at 1236. 63 Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th Cir. 2001). 64 See, e.g., Mario F. Triola, Elementary Statistics, 16, 496-517 (9th ed. 2005) (stating the truism that "correlation does not imply causation," and that correlation exists between two variables when one of them is related to the other in some way, and what "correlation" means in statistics). 65 In re Death of Gray, 2004 OK 63, ¶ 10, n. 13, 100 P.3d 691, 700-701 (post hoc ergo propter hoc, after this, therefore because of this, is improper reasoning, by itself, to show causation). Accord Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1254 (11th Cir.2010) ("This Circuit has held that the temporal connection between exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight in determining causation."); Jonathan M. Dunitz & Nancy J. Fannon, Daubert and the Financial Damages Expert, 26 Me. B.J. 62, 66 ("post hoc, ergo propter hoc logic--after this, therefore because of this--is well recognized as a logical fallacy and a departure from the scientific requirements that Daubert was meant to address"); Irving M. Copi, Introduction to Logic, 68-69 (3d ed. 1968) (one of the alternative Latin names given to the fallacy of false cause is post hoc ergo propter hoc, "the inference that one event is cause of another from the bare fact that the first occurs earlier than the second."). 66 Christian v. Gray, at ¶ 27, 65 P.3d at 604 (an issue often discussed as part of a specific causation analysis involving external causation is the temporal, or time-based, relationship between the exposure and a plaintiff's injury); Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 999 (10th Cir.2003) (an expert witness may rely on a temporal relationship as one factor when showing causation); Bonner v. ISP Techs., Inc., 259 F.3d 924, 931 (8th Cir.2001) ("We have held, 'Under some circumstances, a strong temporal connection is powerful evidence of causation.'"). 67 The Federal Judicial Center, Reference Manual on Scientific Evidence, 467-468 (2d ed.2000). 68 In re Paoli R.R. Yard Litig., 35 F.3d 717, 760 (3d Cir. 1994) (trial court abused its discretion in excluding medical opinions under Federal of Evidence Rule 702 unless either (1) the doctors failed to use standard diagnostic techniques to rule out alternative causes and the doctors failed to offer a good explanation as to why their conclusions remained reliable, or (2) the defendants pointed to some likely cause of the plaintiff's illness other than the defendants' actions and the doctors offered no reasonable explanation as to why they still believed that the defendants' actions were a substantial factor in bringing about that illness.). See also Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff's condition) and compare Ambrosini v. Labarraque, 32 U.S.App.D.C. 19, 101 F.3d 129, 140 (D.C. Cir. 1996) (the possibility of some uneliminated causes goes to the accuracy of the conclusion and presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). 69 Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, ¶ 9, 154 P.3d 1250, 1254, citing Johnson v. Hillcrest Health Ctr., Inc., 2003 OK 16, ¶ 18 n. 25, 70 P.3d 811, 819 n. 25. 70 See, e.g., Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶ 21, 102 P.3d 133, 139 (Court distinguished joint tortfeasors causing injury by concerted actions pursuant to a common purpose or design, and concurrent tortfeasors causing a single and indivisible injury by independent actions). 71 See, e.g., H. L. A. Hart & Tony Honoré, Causation in the Law, 205-253 (2d.ed 1985) (discussing contributory, additional, and alternative causes, as well as joint and concurrent torts, and contributory negligence). 72 Christian v. Gray, at ¶ 28, 65 P.3d at 604-605, quoting Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 609 (D.N.J.2002). 73 See, e.g., Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 670-672 (5th Cir.1999) (appellate court reversed trial court's conclusion that a differential diagnosis required eliminating other possible causes of symptoms); Heller v. Shaw Indus., Inc., 167 F.3d 146, 153-157 (3d Cir.1999) (existence of possible alternative causes goes to weight and not admissibility). 74 See e.g., Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 434 (7th Cir. 2013) (the Committee Notes to Federal Rule of Evidence, Rule 702, suggest that while a reliable expert should consider alternative causes, they do not require an expert to rule out every alternative cause); Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 181-182 (6th Cir.2009) (a physician's opinion as a competent, intellectually rigorous treating physician in identifying the most likely cause of a patient's injury does not affect the "threshold admissibility" of the opinion, although weaknesses in the physician's methodology "will affect the weight that his opinion is given at trial.") citing Kudabeck v. Kroger Co., 338 F.3d 856, 861-62 (8th Cir.2003) ("attacks regarding the completeness of [a doctor's] methodology go to the weight and not the admissibility of his testimony.").

61dda8a2-7cb9-4d55-b949-0eb2ec7172ef

Dani v. Miller

oklahoma

Oklahoma Supreme Court

DANI v. MILLER2016 OK 35Case Number: 114482Decided: 03/29/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ROBERT N. DANI, as a resident beneficiary taxpayer claimant of the STATE OF OKLAHOMA UNIFORM UNCLAIMED PROPERTY ACT TRUST and for the benefit of all the other 938,021 (more or less) resident and non-resident beneficiary claimants of the Trust, Plaintiff/Appellant,v.(1) KEN MILLER, in his official capacity as TREASURER OF THE STATE OF OKLAHOMA and TRUSTEE OF THE STATE'S UNIFORM UNCLAIMED PROPERTY ACT TRUST; and (2) STATE OF OKLAHOMA; and (3) JOHN DOE and/or MARY DOE, Attorneys for the State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the Uniform Unclaimed Property Act Trust was lawful and constitutional in its use of private trust funds for the State of Oklahoma profits, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYHONORABLE THOMAS E. PRINCEDISTRICT JUDGE ¶0 An owner of unclaimed property filed suit in the District Court of Oklahoma County seeking relief, including damages, declaratory relief, and injunctive relief challenging the constitutionality and administration of the Oklahoma Uniform Unclaimed Property Act, 60 O.S. §§ 651-688. The State Treasurer in his official capacity, and other defendants, moved to dismiss the petition for failure to state a claim for which relief could be grated pursuant to 12 O.S. 2011 § 2012(B)(6). The property owner moved for summary judgment. The trial court granted the defendants' motion to dismiss and denied the property owner's motion for summary judgment, and the property owner appealed. ORDER OF THE TRIAL COURT IS AFFIRMED Jerry R. Fent, Oklahoma City, OK, for Plaintiff/Appellant.Ted Pool, Oklahoma City, OK, for Plaintiff/Appellant.Jared B. Haines, Assistant Solicitor General, and Mithun S. Mansinghani, Deputy Solicitor General, Oklahoma City, OK, for Defendants/Appellees Ken Miller, State Treasurer of Oklahoma, and the State of Oklahoma. COMBS, V.C.J.: ¶1 The question presented to this Court is whether the trial court properly granted Defendants/Appellees' motion to dismiss the action for failure to state claims upon which relief may be granted, and denied Plaintiff/Appellant's motion for summary judgment. We hold in the affirmative, and affirm the trial court's order. FACTS AND PROCEDURAL HISTORY ¶2 Plaintiff /Appellant Robert N. Dani (Appellant) is an Oklahoma resident and taxpayer. Certain property belonging to Appellant was handed over to the State Treasurer pursuant to the Uniform Unclaimed Property Act (UUPA), 60 O.S. §§ 651-688, because it was presumed abandoned. This property consisted of $19.56, received in 2004 and submitted by Chevron/Texaco, as well as $150.00, received in 2013 and submitted by Office Depot, Inc. Appellant filed a claim for this property on or about January 16, 2014. His claim was approved, and a check was issued to Appellant for $169.56 on April 17, 2014. ¶3 On June 22, 2015, Appellant filed suit in Oklahoma County District Court against Defendants/Appellees (collectively, "State"), seeking damages, declaratory relief, and injunctive relief, concerning the constitutionality and administration of the UUPA. Appellant's first causes of action center on the alleged creation of a trust by the UUPA, and he argues: 1) the UUPA is a "public trust," having the State Treasurer as trustee and private parties such as Appellant as the beneficiaries; 2) UUPA provisions that require transfer of funds not held as reserve in the UUPA's Unclaimed Property Fund to the State of Oklahoma's General Revenue Fund violate trust obligations; and 3) the UUPA's requirement that interest and income accruing in the Unclaimed Property Fund's principal be paid to the general revenue fund violates trust obligations. ¶4 Appellant also asserts the UUPA is a "Ponzi scheme". He then sets out causes of action detailing alleged violations of the United States and Oklahoma Constitutions, including: 1) the statutorily-required transfers to the General Revenue Fund create a debt in violation of Okla. Const. art. 10, § 23; and 2) the statutorily required transfers violate the U.S. Constitution's prohibition on takings without just compensation, the Due Process Clause and the Equal Protection Clause of the United States Constitution, as well as the due process protection of Okla. Const. art. 2, § 7. ¶5 Appellant further alleges that by committing the above-described acts, state officials violated their oaths of office and unnamed attorneys for the state committed legal malpractice. Finally, Appellant asserts no statute of limitations bars his claim and that sovereign immunity does not apply. ¶6 On July 16, 2015, the State filed a Motion to Dismiss Appellant's Petition. The State asserts generally that the UUPA complies with all constitutional requirements and the State Treasurer's administration of the Unclaimed Property Fund complies with the UUPA and any duties as a trustee. Specifically, the State argues: 1) Appellant's trust arguments fail to state a claim, and even if they do, whether the UUPA creates a public trust as provided for in 60 O.S. 2011 § 176 is irrelevant; 2) the UUPA does not create an obligation that binds future legislators to appropriate money for a certain purpose, and therefore does not create an unconstitutional debt in violation of Okla. Const. art. 10, § 23; 3) Longstanding State and Federal precedent upholding the constitutionality of state unclaimed property statutes defeats Appellant's other Constitutional claims; 4) Appellant's statute of limitations claim, oath claim, and malpractice claim are not legally cognizable; and 5) any claims for damages are precluded by sovereign immunity. ¶7 While the State's Motion to Dismiss was pending, Appellant filed a Motion for Summary Judgment on August 31, 2015. The trial court held a hearing to consider both motions on October 7, 2015. In a journal entry filed on November 4, 2015, the trial court granted the State's Motion to Dismiss as to all of Appellant's causes of action, and denied Appellant's Motion for Summary Judgment. The trial court determined: 1) sovereign immunity precluded monetary damages in the case; 2) none of the provisions of the UUPA effectuate an unconstitutional taking; and 3) Appellant's other causes of action failed to state a claim on which relief could be granted for the reasons articulated by the State in its Motion to Dismiss. ¶8 Appellant appealed the trial court's ruling, and filed his Petition in Error pursuant to Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2013, Ch. 15, App. 1, on November 30, 2015. In his Petition in Error, Appellant argues the trial court erred when it denied his Motion for Summary Judgment and granted the State's Motion to Dismiss. Appellant asserts: 1) the UUPA is a "public trust" having the Treasurer as a trustee and private parties as beneficiaries; 2) the UUPA provisions requiring transfer of funds not held as reserve to the State's General Revenue Fund violate trust obligations; 3) the UUPA requirement that interest and income accruing in the Unclaimed Property Fund's principle be paid to the State's General Revenue Fund violates trust obligations; 4) the UUPA is a "Ponzi scheme"; 5) transfers from the Unclaimed Property Fund to the State's General Revenue Fund create a debt in violation of Okla. Const. art. 10, § 23; and 6) transfers from the Unclaimed Property Fund to the State's General Revenue Fund violate the U.S. Constitution's prohibition on takings without just compensation, Due Process Clause, and Equal Protection Clause, as well as the due process protections of Okla. Const. art. 2, § 7.1 ¶9 Appellant filed a Motion to Retain in the Supreme Court on November 30, 2015, which this Court granted on December 22, 2015.2 The cause was assigned to this office on December 29, 2015. There is a pending Motion to Set Oral Argument Before This Court En Banc filed by Appellant on November 30, 2015. This motion is denied. STANDARD OF REVIEW ¶10 Motions to dismiss are generally viewed with disfavor, and the standard of review before this Court is de novo. Ladra v. New Dominion, LLC, 2015 OK 53, ¶8, 353 P.3d 529; Simonson v. Schaefer, 2013 OK 25, ¶3, 301 P.3d 413; Hayes v. Eateries, Inc., 1995 OK 108, ¶2, 905 P.2d 778. The purpose of a motion to dismiss is to test the law that governs the claim, not the underlying facts. Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶4, 270 P.3d 155; Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204; Zaharias v. Gammill, 1992 OK 149, ¶6, 844 P.2d 137. Accordingly, when considering the legal sufficiency of the petition the court takes all allegations in the pleading as true together with all reasonable inferences that may be drawn from them. Ladra, 2015 OK 53, ¶8; Simonson, 2013 OK 25, ¶3; Fanning v. Brown, 2004 OK 7, ¶4, 85 P.3d 841. A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which the plaintiff may be entitled. Gens v. Casady School, 2008 OK 5, ¶8, 177 P.3d 565; Darrow, 2008 OK 1, ¶7; May v. Mid-Century Ins. Co., 2006 OK 100, ¶10, 151 P.3d 132. ¶11 If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied. Gens, 2008 OK 5, ¶8; Darrow, 2008 OK 1, ¶7; Lockhart v. Loosen, 1997 OK 103, ¶4, 943 P.2d 1074. A motion to dismiss is properly granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory. Wilson, 2012 OK 2, ¶4; Darrow, 2008 OK 1, ¶7; Lockhart, 1997 OK 103, ¶5.3 Where not all claims appear to be frivolous on their face or without merit, dismissal for failure to state a claim upon which relief may be granted is premature. Gens, 2008 OK 5, ¶8; Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, ¶12, 915 P.2d 359. The party moving for dismissal bears the burden of proof to show the legal insufficiency of the petition. Ladra, 2015 OK 53, ¶8; Simonson, 2013 OK 25, ¶3; Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶6, 212 P.3d 1158. I. THE UNIFORM UNCLAIMED PROPERTY ACT, 60 O.S. §§ 651-688 ¶12 Appellant's causes of action all concern Oklahoma's Uniform Unclaimed Property Act (UUPA), 60 O.S. §§ 651-688. Some background on how the UUPA functions is useful prior to delving into Appellant's arguments on appeal. The UUPA provides a comprehensive scheme for reporting, collection, maintenance, distribution, and escheat4 of tangible and intangible property deemed abandoned by its provisions. Quail Creek Golf and Country Club v. Okla. Tax Comm'n, 1996 OK 35, ¶6, 913 P.2d 302; Lincoln Bank and Trust Co. v. Okla. Tax Comm'n, 1992 OK 22, ¶3, 827 P.2d 1314. ¶13 The UUPA specifies types of property that are presumed abandoned after a period of time, usually several years, in the absence of any action by or contact with the person or entity holding the property. See generally 60 O.S. 2011 §§ 651.1 - 658.1A. The UUPA requires the holders of property, tangible or intangible, presumed abandoned and subject to custody as unclaimed property under the UUPA to file a report concerning the property with the State Treasurer. Title 60 O.S. Supp. 2013 § 661. It is then the responsibility of the State Treasurer to publish notice of abandoned property. Title 60 O.S. 2011 § 662. ¶14 The holders of abandoned property, upon filing the required report, are also required to pay or deliver the abandoned property to the State Treasurer, 60 O.S. 2011 § 663, and are relieved from liability once they have done so and the State assumes custody and responsibility for the safekeeping of the property. Title 60 O.S. 2011 § 664. Generally, once the State Treasurer has taken custody of abandoned property it is deposited in the Unclaimed Property Fund. Title 60 O.S. 2011 § 668(A) provides in pertinent part: [t]here is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. All funds received under the Uniform Unclaimed Property Act, including the proceeds from the sale of abandoned property under Section 667 of this title, shall forthwith be deposited by the State Treasurer in the Unclaimed Property Fund, herein created…. Title 60 O.S. 2011 § 669 vests the State Treasurer with authority to control the fund, and provides: [t]he State Treasurer is hereby vested with authority and the responsibility for the control and management of all monies in the Unclaimed Property Fund as provided for in the Uniform Unclaimed Property Act. It shall be the duty of the State Treasurer to take such steps as may be necessary to preserve the principal of monies accruing to the Unclaimed Property Fund as a trust for persons claiming any interest in any property delivered to the state pursuant to the provisions of the Uniform Unclaimed Property Act. The UUPA provides a process by which the owners of abandoned property may file a claim to recover their property, or the value of their property if it was sold pursuant to provisions of the act. Title 60 O.S. 2011 § 674. The State Treasurer is required to consider these claims, hold a hearing if necessary and if the claim is approved, pay the claim from the Unclaimed Property Fund. Title 60 O.S. 2011 § 675. ¶15 However, the UUPA contemplates and accounts for the fact that not all owners of abandoned property will seek to recover it. The UUPA therefore creates a system where a reserve is maintained in the Unclaimed Property Fund to pay approved claims and the remainder is deposited to the General Revenue Fund for use by the state. Specifically, 60 O.S. 2011 § 670 provides: [t]he State Treasurer shall determine, from time to time, what amount of unclaimed property in custody should be retained as a reserve in order to ensure that all claims presented by persons legally establishing a right to any unclaimed property shall be paid promptly. In making such determination, the State Treasurer shall take into account the following: 1. The actual experience of other states having unclaimed property laws, as to the amount of claims presented and established as compared to the total amount of property taken into state custody; 2. Such actuarial or other experience or statistics as may be available to show the frequency of the discovery of missing persons or their unknown heirs; 3. Any other discoverable and relevant data having a tendency to establish the amount of reserve necessary for the purpose stated in this section. The State Treasurer, after having found and determined the reserve necessary as stated in this section, shall pay all amounts in custody in excess of the necessary reserve into the State Treasury to the credit of the General Revenue Fund. When monies are deposited to the credit of the General Revenue Fund, all rights of any owner of unclaimed property to resort against the money so paid into the General Revenue Fund shall terminate, but the right of any person legally establishing a claim to any property right which has been taken into the custody of the State Treasurer shall be preserved and the value thereof shall be paid from such reserve. The UUPA also provides for the hypothetical scenario in which the reserve is insufficient to pay established claims. Title 60 O.S. 2011 § 671 provides: [i]f, at any time, the reserve as provided for in the Uniform Unclaimed Property Act is insufficient to pay in full established claims, the State Treasurer immediately shall: 1. Redetermine, on the basis of past experience, the percentage necessary to be maintained in the reserve; and 2. Cease to make any payments to the General Revenue Fund until: a. all validly established claims as provided for in the Uniform Unclaimed Property Act have been paid, and b. there is accumulated in the reserve the sum required to be kept therein under the redetermination, whereupon the State Treasurer shall resume payments to the General Revenue Fund in accordance with the terms of the Uniform Unclaimed Property Act. ¶16 The UUPA thus protects the owners of unclaimed property by providing an orderly system of recovery for presumably abandoned property while simultaneously ensuring that the State and general public receive the benefits of such property rather than allowing holders of abandoned property to reap windfalls when a statute of limitations would cut off recovery from rightful owners. II. APPELLANT'S NON-CONSTITUTIONAL CLAIMS A. Appellant's trust allegations are without merit. ¶17 Appellant asserts the language of 60 O.S. 2011 § 668 creates a trust from the Unclaimed Property Fund. Title 60 O.S. 2011 § 668(A) provides in pertinent part: [t]here is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. (Emphasis added). Appellant also asserts that 60 O.S. 2011 § 669 creates trust beneficiaries from persons claiming any interest in property delivered to the State pursuant to the UUPA and makes the State Treasurer the trustee. Title 60 O.S. 2011 § 669 provides: [t]he State Treasurer is hereby vested with authority and the responsibility for the control and management of all monies in the Unclaimed Property Fund as provided for in the Uniform Unclaimed Property Act. It shall be the duty of the State Treasurer to take such steps as may be necessary to preserve the principal of monies accruing to the Unclaimed Property Fund as a trust for persons claiming any interest in any property delivered to the state pursuant to the provisions of the Uniform Unclaimed Property Act. (Emphasis added). Appellant further asserts that the Treasurer's required actions under 60 O.S. 2011 §§ 670-672, concerning the reserve and transfer of excess abandoned property to the General Revenue Fund, violate the trust obligations created by 60 O.S. 2011 §§ 668 & 669. ¶18 This Court need not address the question of whether the UUPA creates a trust under Oklahoma law.5 The question has no bearing on the determination of the propriety or impropriety of the trial court's grant of dismissal on this claim. Whether a trust is created or not, the terms of the UUPA control. In construing the terms of an instrument creating a trust, the intention of the settlor of the trust should control when such intention is not in conflict with established principles of law. In re Will of Dimick, 1975 OK 10, ¶10, 531 P.2d 1027; Hurst v. Kravis, 1958 OK 290, ¶13, 333 P.2d 314. The intent is to be gathered from the terms of the instrument as a whole. In re Will of Dimick, 1975 OK 10, ¶10; Dunnet v. First Nat. Bank & Trust Co., 1938 OK 608, ¶6, 85 P.2d 281. Where there is no ambiguity and the language of a trust is clear and plainly susceptible of only one construction, the plain provisions of the trust instrument must determine its construction. House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶36, 109 P.3d 314; Matter of Home-Stake Production Co., Etc., 1979 OK 81, ¶8, 598 P.2d 1193. ¶19 The standard for construing the terms of an instrument creating a trust is similar to the standard governing interpretation of the Oklahoma statutes. In construing a statute, the primary goal is to determine legislative intent. In re Estate of Jackson, 2008 OK 83, ¶16, 194 P.3d 1269; Heldermon v. Wright, 2006 OK 86, ¶12, 152 P.3d 855; George E. Failing Co. v. Watkins, 2000 OK 76, ¶7, 14 P.3d 52. If the legislative intent is clear from a statute's plain and unambiguous language, this Court need not resort to rules of statutory construction. In re Estate of Jackson, 2008 OK 83, ¶16; Heldermon, 2006 OK 86, ¶12. Legislative intent is to be gleaned from the text in light of its general purpose and object. Watkins, 2000 OK 76, ¶7; City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶14, 967 P.2d 1214. ¶20 Regardless of whether the UUPA creates a trust, the language of the UUPA is clear and unambiguous, and its terms control. Similarly, the duties of the State Treasurer, either as a trustee or executive official, are defined by the UUPA. Title 60 O.S. 2011 § 670 requires the State Treasurer to determine a necessary reserve amount of unclaimed property and to transfer the excess into the General Revenue Fund.6 Likewise, 60 O.S. 2011 § 671 requires the State Treasurer to cease those payments if the number of valid claims exceeds the reserve, and 60 O.S. 2011 § 672 requires the State Treasurer to care for the reserve fund and permits its investment, while requiring any interest to be paid into the General Revenue Fund. Title 60 O.S. 2011 § 668, which creates the Unclaimed Property Fund in the first place, does not require the Unclaimed Property Fund retain all money deposited into it. Title 60 O.S. 2011 § 668, in pertinent part, describes the Unclaimed Property Fund thusly: There is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. (emphasis added). ¶21 Appellant has not alleged the State Treasurer has taken any action contrary to the provisions of the UUPA. To the contrary, Appellant alleges that the Treasurer has violated his obligations as a "trustee" by following the provisions of the UUPA, which would itself be the trust instrument if this Court were to hold it created an express trust. If it does not, the State Treasurer has simply done exactly as the legislature has directed in implementing the UUPA and fulfilling his obligations. There is no merit to Appellant's trust allegations. B. Appellant's allegations the UUPA constitutes a "Ponzi scheme" are without merit. ¶22 Appellant also alleges the UUPA creates a "Ponzi scheme" because of how it handles the reserve to pay established claims. The UUPA provides for the maintenance of a reserve fund that might conceivably be insufficient to pay out all established claims. See 60 O.S. 2011 § 670. If this eventuality occurs, 60 O.S. 2011 § 671 requires the State Treasurer to recalculate the necessary reserve and cease making payments into the General Revenue Fund until all validly established claims are paid. In other words, if validly established claims exceed the established reserve, incoming unclaimed property will be held in reserve to pay valid claims until all established claims are paid. Appellant asserts this constitutes a "Ponzi scheme", because the reserve is not sufficient to pay all potential (including not-yet-established) claims and new abandoned property is to be used to pay any established claims exceeding the reserve. ¶23 A "Ponzi scheme" is a fraudulent investment scheme. Black's Law Dictionary defines "Ponzi scheme" in the following manner: [a] fraudulent investment scheme in which money contributed by later investors generates artificially high dividends or returns for the original investors, whose example attracts even larger investments. Money from the new investors is used directly to repay or pay interest to earlier investors, usu. without any operation or revenue-producing activity other than the continual raising of new funds. This scheme takes its name from Charles Ponzi, who in the late 1920s was convicted for fraudulent schemes he conducted in Boston. Black's Law Dictionary (10th ed. 2014). The example from which the name is derived, masterminded by Charles Ponzi, was described by the Supreme Court of the United States in Cunningham v. Brown, 265 U.S. 1, 44 S. Ct. 424, 68 L. Ed. 873 (1924).7 This Court has considered the legal ramifications of "Ponzi schemes" in several cases, all of which concerned fraudulent investment schemes. See, e.g., Horton v. Hamilton, 2015 OK 6, 345 P.3d 357 (concerning purchase of a bond that was part of a fraudulent investment Ponzi scheme); Okla. Dep't of Sec. ex rel. Faught v. Wilcox, 2011 OK 82, 267 P.3d 106 (Department of Securities sought return of amounts defendants received from Ponzi scheme in excess of their investments); Okla. Dep't of Sec. ex rel. Faught v. Blair, 2010 OK 16, 231 P.3d 645 (same underlying issues as Wilcox). ¶24 The UUPA is not a "Ponzi scheme" within the meaning of that term. It is not a fraudulent investment scheme being perpetrated against the citizens of Oklahoma, implicating violations of the Oklahoma Uniform Securities Act, 71 O.S. §§ 1-101 to 1-701, or otherwise. The UUPA deals with unclaimed property that is presumed abandoned. It establishes a reserve to pay valid claims in the event owners of that property eventually come forward to claim it, and permits the State to put the rest to use. The State is not deceiving new investors in order to pay valid claims, but rather paying those claims with abandoned property it would be taking in anyway, per the terms of the UUPA. Title 60 O.S. 2011 § 671 operates in such a manner that even if they must wait, owners of abandoned property with valid claims will always be able to eventually recover their previously presumed-abandoned property. ¶25 Should Appellant's allegations be read as constituting a more general claim of fraud, they still fail to state a claim upon which relief may be granted. Fraud is a generic term embracing the multifarious means which human ingenuity can devise so one can get advantage over another by false suggestion or suppression of the truth. Croslin v. Enerlex, Inc., 2013 OK 34, ¶11, 308 P.3d 1041; Singleton v. LePak, 1967 OK 37, ¶13, 425 P.2d 974; Morris v. McLendon, 1933 OK 619, ¶8, 27 P.2d 811. Title 12 O.S. Supp. 2013 § 2009(B) sets out the pleading standard for fraud and provides: "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Under this standard, allegations of fraud must be stated with sufficient particularity to enable the opposing party to prepare his or her responsive pleadings and defenses. A-Plus Janitorial & Carpet Cleaning v. Employers' Workers' Comp. Ass'n, 1997 OK 37, ¶35, 936 P.2d 916. This standard requires specification of the time, place, and content of an alleged false representation. Gianfillippo v. Northland Gas Co., 1993 OK 125, ¶11, 861 P.2d 308. Appellant has not alleged any misrepresentation made concerning the operation of the UUPA in connection with his claim that it constitutes a "Ponzi scheme". The UUPA's requirements are set out in the Oklahoma Statutes for all to see, and were followed by the State Treasurer. Appellant's allegations that the UUPA constitutes a "Ponzi scheme" are without merit. III. APPELLANT'S CONSTITUTIONAL CLAIMS ¶26 The Court now turns to the various questions concerning the constitutionality of the UUPA that Appellant has preserved for appeal. A challenger to the constitutionality of a statute bears a heavy burden. A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie, 2010 OK 51, ¶15, 253 P.3d 38; EOG Resources Marketing, Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶13, 196 P.3d 511; Mehdipour v. State ex rel. Dep't of Corr., 2004 OK 19, ¶22, 90 P.3d 546. Every presumption is to be indulged in favor of the constitutionality of a statute. Thomas v. Henry, 2011 OK 53, ¶8, 260 P.3d 1251; Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶3, 984 P.2d 200. A. Transfers from the Unclaimed Property Fund to the State's General Revenue Fund do not create a debt in violation of Okla. Const. art. 10, § 23. ¶27 Appellant asserts that the reserve provisions of the UUPA, 60 O.S. 2011 §§ 670-671 create a "debt" in violation of Okla. Const. art. 10, § 23. In pertinent part, Okla. Const. art. 10, § 23 provides: [t]he state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma. ¶28 Over the years this Court has analyzed what constitutes a "debt" in violation of Okla. Const. art. 10, § 23. For example, in In re Application of Okla. Dep't of Transp., 2003 OK 105, ¶25, 82 P.3d 1000, this Court held that notes issued by the Oklahoma Department of Transportation that were to be payable only from future federal highway aid did not constitute a debt of the State of Oklahoma pursuant to Okla. Const. art. 10, § 23. This Court stated: [t]he proposed GARVEE notes when issued by the Oklahoma Department of Transportation will constitute an obligation payable solely from future receipts of federal highway aid dedicated to the retirement of the notes. The principal, interest, or costs of the GARVEE notes will not be paid with future revenues raised by the taxing power of this State, nor will they be paid from future funds that would otherwise be available for general governmental purposes. In the event of default, note holders will be paid only from the Note Payment Fund and any receipts of federal highway aid dedicated to the retirement of the notes. Under these circumstances, the proposed GARVEE notes will not constitute a debt of the State of Oklahoma under the Okla. Const. art. 10, § 23. In re Application of Okla. Dept. of Transp., 2003 OK 105, ¶25 (emphasis added). ¶29 This Court has also held that no debt is created when a statute authorizes bonds but does not attempt to bind future legislators to repay them. In Fent v. Okla. Capitol Imp. Auth., 1999 OK 64, ¶7, this Court examined statutes authorizing the Oklahoma Capital Improvement Authority (OCIA) to issue and sell bonds for certain public building projects. This Court stated: [a]s we interpret both statutes, OCIA is authorized thereunder to fund the costs of the various projects by borrowing monies on the credit of the income and revenues to be derived from the projects. The money borrowed will, of course, come from the issuance and sale of the bonds. In turn, the bonds are to be retired by payments made to OCIA by the various agencies, departments and/or instrumentalities using and/or benefitting from the projects under lease or other agreements with OCIA. Although each statute expresses an intent to appropriate sufficient monies to the various agencies, etc. to make such payments to OCIA for the purpose of retiring the bonds, nowhere in either statute is there a provision obligating a future legislature to do so. Fent v. Okla. Capitol Imp. Auth., 1999 OK 64, ¶8. ¶30 Appellant argues that the promise to return property to established claimants, set out in 60 O.S. 2011 §§670-671 violates Okla. Const. art. 10, § 23 by creating a "debt" within the meaning of that provision, without complying with the exceptions set out in Okla Const. art. 10, §§ 23-25. Title 60 O.S. 2011 § 670 requires the State Treasurer to determine what amount of unclaimed property in custody should be retained as a reserve to pay established claims. The State Treasurer is then required to pay all amounts in custody in excess of that reserve into the State Treasury to the credit of the General Revenue Fund. However, especially important is the final sentence of 60 O.S. 2011 § 670, which provides: [w]hen monies are deposited to the credit of the General Revenue Fund, all rights of any owner of unclaimed property to resort against the money so paid into the General Revenue Fund shall terminate, but the right of any person legally establishing a claim to any property right which has been taken into the custody of the State Treasurer shall be preserved and the value thereof shall be paid from such reserve. Pursuant to this section, claimants of unclaimed property have no rights whatsoever to seek payment from the General Revenue Fund, only from the reserve, itself composed of unclaimed property. ¶31 Title 60 O.S. 2011 § 671 provides for the eventuality of a shortage of funds in the reserve to pay valid claims, and provides: [i]f, at any time, the reserve as provided for in the Uniform Unclaimed Property Act is insufficient to pay in full established claims, the State Treasurer immediately shall: 1. Redetermine, on the basis of past experience, the percentage necessary to be maintained in the reserve; and 2. Cease to make any payments to the General Revenue Fund until: a. all validly established claims as provided for in the Uniform Unclaimed Property Act have been paid, and b. there is accumulated in the reserve the sum required to be kept therein under the redetermination, whereupon the State Treasurer shall resume payments to the General Revenue Fund in accordance with the terms of the Uniform Unclaimed Property Act. Pursuant to this section, if there is a deficiency in the reserve to pay in full established claims, all payments to the General Revenue Fund must cease until those claims are paid and the reserve is built back up. ¶32 The transfer of unclaimed property to the General Revenue Fund pursuant to the UUPA is one way. While excess funds above the determined reserve are transferred to the General Revenue Fund, recourse is never made to the General Revenue Fund to satisfy potential claims. Claimants' only recourse is to the reserve, itself filled only by the accumulation of abandoned property pursuant to the UUPA. The State has not legally pledged its full faith and credit to pay the owners of abandoned property. The Legislature, in enacting the UUPA, did not make any attempt to bind future legislatures to appropriate money or otherwise raise funds to pay established claims under the UUPA. Appellant's claim that the UUPA creates a debt in violation of Okla. Const. art. 10, § 23 is without merit. B. The UUPA does not effectuate a taking in violation of U.S. Const. amend. V. ¶33 Appellant asserts that the UUPA effectuates a taking of private property without just compensation in violation of U.S. Const. amend. V.8 In Texaco, Inc. v. Short, 454 U.S. 516, 102 S. Ct. 781, 70 L. Ed. 2d 738 (1982), the Supreme Court of the United States conclusively rejected the notion that legal termination of ownership rights in abandoned property constitutes a taking entitled to just compensation. In that case, the Court considered an Indiana statute under which a mineral lease not used for twenty years would automatically lapse unless the owner filed a statement of claim in the county recorder's office. Texaco, Inc., 454 U.S. at 518-520. Concerning the appellants' taking claim, the Court held: [i]n ruling that private property may be deemed to be abandoned and to lapse upon the failure of its owner to take reasonable actions imposed by law, this Court has never required the State to compensate the owner for the consequences of his own neglect. We have concluded that the State may treat a mineral interest that has not been used for 20 years and for which no statement of claim has been filed as abandoned; it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property-and not the action of the State-that causes the lapse of the property right; there is no "taking" that requires compensation. The requirement that an owner of a property interest that has not been used for 20 years must come forward and file a current statement of claim is not itself a "taking." Texaco, Inc., 454 U.S. at 530. ¶34 The Texaco, Inc. Court examined a statute that would completely extinguish rights to property if certain conditions were not met, and determined it did not effectuate a taking. Unlike the Indiana statute examined in Texaco, Inc., the UUPA does not extinguish the rights of owners of abandoned property. As previously discussed, the UUPA is a custodial taking statute. Title 60 O.S. 2011 § 674 provides a procedure through which owners of abandoned property may file a claim and "[i]f a claim is allowed, the State Treasurer shall pay over or deliver to the claimant the property or the amount the State Treasurer actually received or the net proceeds if it has been sold by the State Treasurer." Appellant availed himself of this mechanism and by his own admission had his property returned to him. ¶35 Regardless, much like the statute considered in Texaco, Inc., the UUPA provides that various types of property will be presumed abandoned unless certain actions are taken by the owner in a specified period of time. See 60 O.S. 2011 § 651.1-658.1A. Here, as in Texaco, Inc., the intake and custody of abandoned property is attributable to the inattention or abandonment of the owners. The rationale of Texaco, Inc. is thus applicable. No taking occurs. ¶36 The rationale of Texaco, Inc., applies equally to Appellant's claims concerning interest on his property. The UUPA entitles an owner of abandoned property other than money to receive interest accruing prior to conversion of that property into money. Title 60 O.S. 2011 § 665. Excepting Section 665, the UUPA entitles a claimant only to the amount of their property the Treasurer actually received or the net proceeds if it was sold. Title 60 O.S. 2011 § 674. The State is not required to compensate a claimant for the consequences of their own neglect, and this includes interest their property might generate while temporarily in the custody of the State. Just because the Legislature chose not to terminate an owner's rights in abandoned property does not mean it is required to allow a claim for interest. Courts in other states have reached a similar result applying Texaco, Inc. to their own unclaimed property statutes, including claims for interest. See Smolow v. Hafer, 959 A.2d 298, 303-304 (Pa. 2008); Morris v. Chiang, 77 Cal. Rptr. 3d 799, 804 (Cal. ApP.2d Dist. 2008); Smyth v. Carter, 845 N.E.2d 219, 223-224 (Ind. Ct. App. 2006); Clark v. Strayhorn, 184 S.W.3d 906, 914 (Tex. App. 2006). Appellant's claim that the UUPA effectuates a taking in violation of U.S. Const. amend. V is meritless. C. The UUPA does not violate the Due Process Provisions of either the United States or Oklahoma Constitutions. ¶37 Appellant asserts that the UUPA deprives him and others of property without due process of law in violation of Okla. Const. art. 2, § 7,9 U.S. Const. amend. V,10 and U.S. Const. amend. XIV, § 1,11 by taking trust property, through the statutory provisions requiring transfer of abandoned property exceeding the reserve into the General Revenue Fund. Oklahoma's Due Process Clause is generally coextensive with its federal counterpart. State ex rel. Bd. of Regents of University of Okla. v. Lucas, 2013 OK 14, n. 25, 297 P.3d 378; Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, n. 16, 66 P.3d 442; Fair School Fin. Council of Okla., Inc. v. State, 1987 OK 114, n. 48, 746 P.2d 1135. At a minimum, due process requires notice and an opportunity to be heard. Crownover v. Keel, 2015 OK 35, ¶14, 357 P.3d 470; Edwards v. City of Sallisaw, 2014 OK 86, ¶19, 339 P.3d 870; Daffin v. State ex rel Okla. Dep't of Mines, 2011 OK 22, ¶16, 251 P.3d 741. ¶38 As this Court has not addressed in detail the question of whether the UUPA complies with constitutional due process requirements, federal jurisprudence is illustrative. The Supreme Court of the United States has previously held unclaimed property statutes to be a valid exercise of state power, stating: "[a]s a broad principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a state, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons." Standard Oil Co. v. State of N.J., by Parsons, 341 U.S. 428, 435-436, 71 S. Ct. 822, 95 L. Ed. 1078 (1951). Similarly, the Court held in Texaco, Inc., discussed supra.: [w]e have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest. From an early time, this Court has recognized that States have the power to permit unused or abandoned interests in property to revert to another after the passage of time. Texaco, Inc., 454 U.S. at 526. ¶39 In Texaco, Inc., the Supreme Court of the United States also considered whether Indiana's mineral lapse statute met the adequate notice requirement of due process. Concerning notice of the requirements of the statute itself, the Court held: [g]enerally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply …. It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property. Texaco, Inc., 454 U.S. at 532. Having determined that the appellants were presumed to have notice of the mineral lapse statute's provisions, the Court next considered the question of whether, given that knowledge, they had a constitutional right to be advised that the period of non-use was about to expire and their interest would revert to the surface owner. Texaco, Inc., 454 U.S. at 533. The Court then made an important distinction, noting: "it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did in fact occur." Texaco, Inc., 454 U.S. at 533. ¶40 The appellants in Texaco, Inc., argued the Supreme Court's own seminal case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)12 should be applied to determine whether they received proper notice that their mineral interests were about to revert to the surface owners. The Supreme Court disagreed, holding: [t]he reasoning in Mullane is applicable to a judicial proceeding brought to determine whether a lapse of a mineral estate did or did not occur, but not to the self-executing feature of the Mineral Lapse Act. The due process standards of Mullane apply to an "adjudication" that is "to be accorded finality." The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property. It has long been established that "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 333, but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights. Texaco, Inc., 454 U.S. at 535-536. ¶41 Much like the mineral lapse statute at issue in Texaco, Inc., the UUPA sets conditions under which types of property are presumed abandoned, based primarily on the failure of the owner to take certain actions such as communicating with the holder. See, e.g., 60 O.S. 2011 § 651.2 (any sum payable on a check, certified check, cashier's check, draft, or similar instrument presumed abandoned after no written communication or indication of interest from the owner after five years). Title 60 O.S. 2011 § 663 then requires holders to turn this property over to the State Treasurer. Unlike in Texaco, Inc., this process does not result in the termination of the owner's interest in the property. Even if it did, however, the holding in Texaco, Inc., illustrates that due process requirements of notice and an opportunity to be heard do not apply to automatic termination of a property right through operation of statute based on an owner's failure to fulfill certain conditions. Rather, the requirements of due process would apply only to a proceeding brought to adjudicate if that right did in fact terminate. Texaco, Inc., 454 U.S. at 535. It follows by extension that due process is not offended by the automatic transfer of abandoned property into the custody of the State Treasurer. ¶42 Since the UUPA does not terminate an individual owner's right to recover their abandoned property, even after the statute results in its transfer to the State, the statute provides a procedural mechanism for owners to seek return of their abandoned property. The procedural elements of this statute comply with due process requirements. They are consistent with the holdings of the Supreme Court of the United States in Texaco, Inc. and Mullane, as well as with this Court's jurisprudence concerning due process. ¶43 The UUPA provides ample notice to potential claimants of abandoned property. Title 60 O.S. Supp. 2013 § 661 requires holders of abandoned property to file a report with the State Treasurer concerning the property. The report must provide the name, if known, and last-known address for the owner of any property valued over $50 and presumed abandoned. Title 60 O.S. Supp. 2013 § 661(E) requires holders of abandoned property to attempt to notify owners prior to filing the report. It provides in full: E. Not more than one hundred twenty (120) days before filing the report required by this section, the holder in possession of property presumed abandoned and subject to custody as unclaimed property under the Uniform Unclaimed Property Act shall send written notice to the apparent owner at the owner's last-known address informing the owner that the holder is in possession of property subject to the Uniform Unclaimed Property Act if: 1. The holder has in the records of the holder an address for the apparent owner which the holder's records do not disclose to be inaccurate; 2. The claim of the apparent owner is not barred by the statute of limitations; and 3. The property has a value of Fifty Dollars ($50.00) or more, or the property has a value of less than Fifty Dollars ($50.00) and is one of a recurring number of continuous payments, including, but not limited to, royalties, annuities, dividends, distributions and other recurring sums presumed abandoned pursuant to subsection D of Section 655 of this title. The holder is not required to send written notice to the owner if the holder has previously attempted to communicate with the owner, or otherwise exercised due diligence to ascertain the whereabouts of the owner. The mailing of notice by first-class mail to the last-known address of the owner by the holder shall constitute compliance with this subsection and, if done, no further act on the part of the holder shall be necessary. Title 60 O.S. 2011 § 661(E). ¶44 Further, 60 O.S. 2011 § 662 requires the State Treasurer attempt to notify owners that their property is in State custody. It provides: A. The State Treasurer shall cause at least two notices to be published during the year following the report required by Section 661 of this title in a legal newspaper of general circulation in the county in this state in which is located the last-known address of any person to be named in the notice. Different legal newspapers of general circulation may be used for each notice. If no address is listed or if the address is outside this state, the notice must be published in the county within this state which is the principal place of business of the holder of the abandoned property, or in an Oklahoma newspaper which the State Treasurer believes most likely to be seen by the owner of the property or by heirs of the owner. B. The published notice must be entitled "Notice of Names of Persons Appearing to be Owners of Abandoned Property", and contain: 1. The names in alphabetical order and last-known address, if any, of persons listed in the report and entitled to notice within the county as specified in subsection A of this section; 2. A statement that information concerning the property and the name and last-known address of the holder may be obtained by any person possessing an interest in the property by addressing an inquiry to the State Treasurer; and 3. A statement that the property is in the custody of the State Treasurer and all claims must be directed to the State Treasurer. C. The State Treasurer is not required to publish in the notice any items of less than Fifty Dollars ($50.00) unless the State Treasurer considers their publication to be in the public interest. D. The State Treasurer shall provide electronic access to the new names and last-known addresses of all persons reported to the State Treasurer as owners of unclaimed property on an Internet web site. The State Treasurer shall take reasonable steps to publicize the existence of this web site and shall publish an advertisement no less than once each calendar quarter in a legal newspaper of general circulation in each county of this state. ¶45 Owners of abandoned property are then permitted by 60 O.S. 2011 § 674 to file a claim for the return of their property, which the State Treasurer must consider within ninety days and give written notice if the claim is denied in whole or part. Title 60 O.S. 2011 § 675 provides further procedure for determining claims, and provides in pertinent part: A. The State Treasurer shall consider any claim filed under the Uniform Unclaimed Property Act and may hold a hearing and receive evidence concerning it. The procedure to be followed hereunder shall be as prescribed by the Administrative Procedures Act. If a hearing is held, the State Treasurer shall prepare a finding and decision in writing on each claim filed, stating the substance of any evidence heard by the State Treasurer and the reasons for the State Treasurer's decision. The decision shall be a public record. (Footnotes omitted). ¶46 This Court recently considered what constitutes adequate notice for due process purposes in Crownover v. Keel, 2015 OK 35, 357 P.3d 470. In that cause, this Court considered whether an owner of real property received constitutionally sufficient notice of the sale of his property for delinquent taxes, when notice was provided only by publication and certified mail that was returned undelivered. Applying Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006), and Mullane, 339 U.S. 306, this Court held that notice must be reasonably calculated to reach the interested parties, and this standard was not satisfied by certified mail when the letter was returned unclaimed. See Crownover, 2015 OK 35, ¶¶27-30. ¶47 Here, the UUPA requires notice to property owners via multiple mechanisms that are reasonably calculated, under the circumstances, to apprise interested parties that their abandoned property is (or is soon to be) in the custody of the State and that they may file a claim to have it returned to them. See Crownover, 2015 OK 35, ¶¶27-30; Jones, 547 U.S. at 226; Mullane, 339 U.S. at 314-315. The very nature of the UUPA as a custodial taking statute for property that is presumed abandoned means that communicating notice to potential owners may be difficult. Accordingly, the statute requires mailed notice, publication, and posting on the internet. As applied to Appellant, the undisputed facts of this cause indicate that he became aware the State had taken custody of his abandoned property, filed a claim, the claim was approved, and his property was returned to him. Appellant's allegations that the UUPA does not provide constitutionally-sufficient notice are without merit. D. The UUPA does not violate constitutional guarantees to equal protection under the law. ¶48 Appellant also alleges that he has been denied equal protection under the law, as part of his due process argument. U.S. Const. amend. XIV, § 1 provides in pertinent part that no state shall: "deny to any person within its jurisdiction the equal protection of the laws."13 Appellant makes no allegations, in his original Petition or in his Petition in Error, concerning any classes who receive constitutionally problematic treatment. Rather, Appellant appears to equate equal protection with due process and argues that the alleged deprivation of notice discussed supra also constitutes a violation of the Equal Protection Clause. ¶49 The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Ross v. Peters, 1993 OK 8, ¶17, 846 P.2d 1107. When called upon to analyze a case on equal protection grounds, a court will apply one of three standards of review: 1) rational basis; 2) heightened scrutiny; or 3) strict scrutiny. Gladstone, 2003 OK 30, n. 22; City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-442, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Unless a classification warrants some form of heightened review because it jeopardizes the exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest. Gladstone, 2003 OK 30, n. 25; Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992); Cleburne, 473 U.S. at 439-441. ¶50 Though Appellant makes no argument concerning a classification, any equal protection violations of the UUPA would have to hinge on its creation of a classification of owners of presumably abandoned property that are treated differently from owners of other property. Heightened levels of scrutiny apply only to statutes that: 1) operate to the peculiar disadvantage of a suspect class such as a class based on alienage or ancestry; or 2) interfere with the exercise of a fundamental right grounded in the constitution such as the right to vote, right to interstate travel, and rights guaranteed by the first amendment. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶55, 148 P.3d 842; Mass. Bd. Of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). As the UUPA implicates neither of those conditions through its treatment of abandoned property and owners, this Court must only determine if the classification rationally furthers a legitimate state interest. Gladstone, 2003 OK 30, n. 25. ¶51 There is no doubt that the UUPA, and its treatment of unclaimed property, serves a legitimate state interest. It prevents holders of unclaimed property (such as banks, insurers, and other entities) from reaping financial windfalls from that property. Instead, the UUPA requires it be turned over to the State and allows it to be put to public use. Through its notification provisions, it requires efforts be made to contact the owners of abandoned property in an effort to reunite owners with their property. The Supreme Court of the United States has unequivocally stated that States have legitimate interests in terminating property rights in property that has not been used for years. Texaco, Inc., 454 U.S. at 526-530. The UUPA does not go that far, and permits owners to reclaim their property even as continuously-unclaimed property is put to public use. The UUPA's treatment of abandoned property and its owners rationally furthers a legitimate state interest, and does not operate in an arbitrary manner. Accordingly, the UUPA does not violate the equal protection components of either U.S. Const. amend. XIV, § 1 or Okla. Const. art. 2, § 7. CONCLUSION ¶52 Appellant challenges the validity of the UUPA on multiple grounds, constitutional and otherwise. In our view, the Petition and the allegations contained therein, read in conformity with the arguments raised by Appellant in this appeal, indicate no relief is possible under any set of facts which can be established and is consistent with the allegations. Appellant's claims are without merit. Accordingly, the trial court's dismissal of Appellant's Petition, and its denial of his Motion for Summary Judgment, were proper. ORDER OF THE TRIAL COURT IS AFFIRMED ALL JUSTICES CONCUR FOOTNOTES 1 Under the pre-1997 appellate rules, errors not presented by the petition in error would not be considered on appeal. See Okla. Tax Comm'n v. City Vending of Muskoge, Inc., 1992 OK 110, n. 6, 835 P.2d 97; Kirschstein v. Haynes, 1990 OK 8, ¶31, 788 P.2d 941. This changed with the adoption of the modern Rule 1.26(b) in 1997,which provides that the petition in error will be deemed amended to include errors set forth in the brief-in-chief. Rule 1.26, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2013, Ch. 15, App. 1. However, in accelerated appeals under Oklahoma Supreme Court Rule 1.36 and with the absence of appellate briefs, issues not raised by Appellant in his Petition in Error will not be considered by this Court on appeal. 2 In our December 22, 2015, order granting Appellant's Motion to Retain, this Court made this cause a companion to Reynolds v. Fallin, No. 114,481. 3 The distinction between lack of any cognizable legal theory and insufficient facts under a cognizable legal theory is important, because in order for the courts to dismiss a claim for failure to state a cause of action without giving the plaintiff the opportunity to amend, it must appear that the claim does not exist rather than the claim has been defectively stated. Fanning v. Brown, 2004 OK 7, ¶23, 85 P.3d 841. 4 Escheat is a procedure with ancient origins whereby a sovereign may acquire title to abandoned property if after a number of years no rightful owner appears. State of Tex. v. State of N.J., 379 U.S. 674, 676, 85 S. Ct. 626, 13 L. Ed. 2d 596 (1965), supplemented 380 U.S. 518 (1965). Though this Court has previously used the term "escheat" to refer to the transfer of abandoned property to the State pursuant to the UUPA, in TXO Production Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶15, 829 P.2d 964, this Court explained that the UUPA is not a true escheat statute, but rather a custodial taking law. See Croslin v. Enerlex, Inc., 2013 OK 34, ¶25, 308 P.3d 1041. Under the UUPA, the State does not acquire title to abandoned property but rather holds it in trust for the rightful owner. Croslin, 2013 OK 34, ¶25; TXO Production Corp., 1992 OK 39, ¶15. The Oklahoma Attorney General has also noted the custodial taking nature of the UUPA, stating: Oklahoma enacted its unclaimed property legislation in 1967 and modeled it after the 1954 version of the Uniform Disposition of Unclaimed Property Act promulgated by the National Conference of Commissioners on State Laws. The Oklahoma Act contains the basic structure and most of the basic wording of the Uniform Act. One of the distinguishing characteristics of the Uniform Act is that it is custodial in nature, that is, it does not result in the loss of the owner's property rights. See, Uniform Disposition of Unclaimed Property Act. pref. n. 9A U.L.A.412 413 (1965). In custodial statutes, the state is only given possession and use of the property as long as it remains unclaimed. Also in custodial statutes, the state is required to keep its books open so that the true owner may make a claim to the held property at any time. Further, in custodial statutes, there is never a transfer of property from the treasurer's custodial rolls to the escheat rolls. See, 3 Harv. J. Legis., supra.,144. Question Submitted by: The Honorable Nancy Virtue, Oklahoma House of Representatives, The Honorable Herbert Rozell, Oklahoma State Senate, 1984 OK AG 141, ¶9. 5 Appellant alternates between using the terms trust and public trust when referring to the relevant sections of the UUPA. Public trusts are created and operate pursuant to the Public Trust Act, 60 O.S. §§ 176 -180.4. Title 60 O.S. 2011 § 176 requires the State or one of its political subdivisions be the beneficiary of a public trust. Appellant's arguments rest on the assertion that he, and other owners of abandoned property similarly situated, are the beneficiaries of any trust created pursuant to the UUPA. The Public Trust Act is inapplicable to Appellant's allegations. 6 Title 60 O.S. 2011 § 670 provides in pertinent part: [t]he State Treasurer shall determine, from time to time, what amount of unclaimed property in custody should be retained as a reserve…. The State Treasurer, after having found and determined the reserve necessary as stated in this section, shall pay all amounts in custody in excess of the necessary reserve into the State Treasury to the credit of the General Revenue Fund. (Emphasis added). Generally, when the Legislature uses the term "shall", it signifies a mandatory directive or command. Tulsa County Budget Bd. v. Tulsa County Excise Bd., 2003 OK 103, n. 25, 81 P.3d 662; Keating v. Edmondson, 2001 OK 110, ¶13, 37 P.3d 882; U.S. Through Farmers Home Admin. v. Hobbs, 1996 OK 77, n. 16, 921 P.2d 338. The use of shall in this instance is unambiguously a mandatory directive. 7 The Court described the scheme thusly: [t]he litigation grows out of the remarkable criminal financial career of Charles Ponzi. In December, 1919, with a capital of $150, he began the business of borrowing money on his promissory notes. He did not profess to receive money for investment for account of the lender. He borrowed the money on his credit only. He spread the false tale that on his own account he was engaged in buying international postal coupons in foreign countries and selling them in other countries at 100 per cent. profit, and that this was made possible by the excessive differences in the rates of exchange following the war. He was willing, he said, to give others the opportunity to share with him this profit. By a written promise in 90 days to pay them $150 for every $100 loaned, he induced thousands to lend him. He stimulated their avidity by paying his 90-day notes in full at the end of 45 days, and by circulating the notice that he would pay any unmatured note presented in less than 45 days at 100 per cent. of the loan. Within eight months he took in $9,582,000, for which he issued his notes for $14,374,000. He paid his agents a commission of 10 per cent. With the 50 per cent. promised to lenders, every loan paid in full with the profit would cost him 60 per cent. He was always insolvent, and became daily more so, the more his business succeeded. He made no investments of any kind, so that all the money he had at any time was solely the result of loans by his dupes. Cunningham, 265 U.S. at 7-8. 8 U.S. Const. amend. V provides in pertinent part: … nor shall private property be taken for public use, without just compensation. The Fifth Amendment to the U.S. Constitution is made applicable to the States by the Fourteenth Amendment. Board of County Comm'rs of Muskogee County v. Lowery, 2006 OK 31, n. 9, 136 P.3d 639. Appellant did not raise, in his petition or on appeal, the question of whether the UUPA violates Oklahoma's constitutional provisions concerning takings of private property, found in Okla. Const. art. 2, §§ 23 & 24. In Lowery, this Court determined that Oklahoma's eminent domain provisions provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution, specifically in the context of taking property for private, as well as public, use. 2006 OK 31, ¶19, 136 P.3d 639. 9 Okla. Const. art. 5, § 7 provides: [n]o person shall be deprived of life, liberty, or property, without due process of law. 10 U.S. Const. amend. V provides in pertinent part: [n]o person shall … be deprived of life, liberty, or property, without due process of law; 11 U.S. Const. amend. XIV, § 1 provides in pertinent part: … nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 12 Mullane set out the fundamental requirements for notice under the due process clause. The Court held: [m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane, 339 U.S. at 313. The Court elaborated on the notice requirement specifically, further holding: [a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278, 132 A.L.R. 1357; Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed. 1363; Priest v. Board of Trustees of Town of Las Vegas, 232 U.S. 604, 34 S. Ct. 443, 58 L. Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S. Ct. 410, 44 L. Ed. 520. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71, 29 S. Ct. 580, 53 L. Ed. 914. Mullane, 339 U.S. 314-315. 13 Although the Oklahoma Constitution does not contain an equal protection provision like or similar to U.S. Const. amend. XIV, § 1, this Court has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section, Okla. Const. art. 2, § 7. Gladstone, 2003 OK 30, n. 15; Fair School Finance Council v. State, 1987 OK 114, ¶54, 746 P.2d 1135. We have also identified an equal protection component in Okla. Const. art. 2, § 6. See Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶¶12-15, 613 P.2d 1041.

cf54ce7e-306d-4d11-833b-5cd9b2c9b4f3

Oliver v. Hofmeister

oklahoma

Oklahoma Supreme Court

OLIVER v. HOFMEISTER2016 OK 15Case Number: 113267Decided: 02/16/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CLARENCE G. OLIVER; EARL GARRISON, AMY VARGUS; DAVID K. PENNINGTON; RAY HICKMAN, KIRBY A. LEHMAN; STACY L. ACORD; ROBERT M. PETERS; RANDALL K. RABURN; MELISSA ABDO; TIM GREEN; and GORDON R. MELSON, Plaintiffs/Appellees, v. JOY HOFMEISTER, in her official capacity as State Superintendent of Public Instruction; THE OKLAHOMA STATE DEPARTMENT OF EDUCATION; and THE OKLAHOMA STATE BOARD OF EDUCATION, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE JUDGE BERNARD JONES, PRESIDING ¶0 The Oklahoma legislature established a scholarship voucher program designed to provide educational choices for children with disabilities who reside within the state. The question presented is whether this program offends the "no aid" clause of the Oklahoma Constitution, Article II, Section 5. We hold that it does not. DISTRICT COURT'S JUDGMENT IS REVERSED IN PART AND REMANDED WITH DIRECTIONS Patrick R. Wyrick, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellant Sarah A. Greenwalt, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellant Frederick J. Hegenbart, Tulsa, Oklahoma, for Appellees J. Douglas Mann, Tulsa, Oklahoma, for Appellees Jerry A. Richardson, Tulsa, Oklahoma, for Appellees Andrew W. Lester, Edmond, Oklahoma, for Amicus Curiae Carrie L. Vaughn, Edmond, Oklahoma, for Amicus Curiae Hossein Farzaneh, Edmond, Oklahoma, for Amicus Curiae Ellen K. Spiropoulos, Oklahoma City, Oklahoma, for Amicus Curiae Eddie Foraker, McAlester, Oklahoma, for Amicus Curiae Richard D. Komer, Arlington, Virginia, for Amicus Curiae Emily D. Jennings, Tulsa, Oklahoma, for Amicus Curiae William H. Hickman, Norman, Oklahoma, for Amicus Curiae Brady R. Henderson, Oklahoma City, Oklahoma, for Amicus Curiae Ryan Kiesel, Oklahoma City, Oklahoma, for Amicus Curiae Andrea R. Kunkel, Oklahoma City, Oklahoma, for Amicus Curiae Tammy T. Carter, Alexandria, Virginia, for Amicus Curiae Eric S. Baxter, Washington, D.C., for Amicus Curiae Diana M. Verm, Washington, D.C., for Amicus Curiae Asma T. Uddin, Washington, D.C., for Amicus Curiae OPINION WATT, J. ¶1 Oklahoma taxpayers filed a declaratory judgment action seeking a permanent injunction against Defendants, Joy Hofmeister, the State Superintendent of Public Instruction, the Oklahoma State Department of Education; and the Oklahoma State Board of Education, (the "State") 1 to enjoin the payment of tuition to private sectarian schools alleging the "Lindsey Nicole Henry Scholarships for Students with Disabilities Act," 70 O.S. 2011, §13-101.1 and 70 O.S. 2012 Supp., §13-101.2, (the "Act" or "Scholarship Program") violates several articles of the Oklahoma Constitution. On summary judgment, the trial court determined that the Act violates only Article II, Section 5 of the Oklahoma Constitution and granted an injunction. Defendants appealed, and we retained the case. ¶2 Oklahoma taxpayers, Clarence G. Oliver, Jr., Earl Garrison, Amy Vargus, David K. Pennington, Ray Hickman, Kirby A. Lehman, Stacy L. Acord, Robert M. Peters, Randall K. Raburn, Melissa Abdo, Tim Green and Gordon R. Melson, ("Taxpayers") assert the Act violates the Oklahoma Constitution and is invalid. They challenge the Act, 70 O.S. 2011, §13-101.1, a state funded scholarship provided to students with disabilities to attend a private school of choice instead of the public school they currently attend. Taxpayers seek to enjoin the State permanently from paying any public funds pursuant to the Act. ¶3 Both parties filed for summary judgment. The trial court granted in part and denied in part the parties' motions, finding the Act was constitutional on all challenged grounds except for one. The trial court entered a narrow Order ruling the Act violated the Oklahoma Constitution, Article II, Section 5, only to the extent it authorizes public funds to pay the cost for students to attend private sectarian schools. This provision of the Constitution has been referred to as the "no aid" clause, prohibiting public money from being used for the benefit or support of religion. An injunction was issued to prevent payment to private religious schools, with no impact on the payment to private non-sectarian schools.2 ¶4 The State appeals and argues for reversal on the basis that: (1) the payment to a sectarian school is permitted because it is for a valid public purpose and in exchange for consideration; and (2) the district court's construction of the Act creates a religiosity distinction violating the U.S. Constitution's freedom of religion clause. 3 Taxpayers urge that Article II, Section 5 is an absolute bar to any payment to a sectarian educational institution, and payment is tantamount to "State" support and control of religion, thereby violating the Oklahoma Constitution. We reverse the district court's decision in part and find the Act does not violate the "no aid" clause. Accordingly, we do not reach the State's argument relating to the religiosity distinction in violation of the U.S. Constitution. I. STANDARD OF REVIEW ¶5 Plaintiffs carry a very heavy burden of proof to establish their contention that the Act violates Article II, Section 5 of the Oklahoma Constitution. "A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution." Rural Water Sewer and Solid Waste Management v. City of Guthrie, et al., 2010 OK 51 ¶ 15, 253 P.3d 38, 44; citing Kimery v. Pub. Serv. Co. of Okla., 1980 OK 187, ¶ 6, 622 P.2d 1066, 1069 . We are guided by well-established principles of statutory construction and "[e]very presumption is to be indulged in favor of constitutionality of a statute." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. Whenever possible, this Court favors a statutory construction that upholds its constitutionality. Rural Water, supra. at ¶ 15, 253 P.3d at 44, also see, Kimery, supra., at ¶ 6, 622 P.2d at 1069. ¶6 Summary judgment is proper when there are no disputed material facts and the trial court has only issues of law to consider. EOG Resources Marketing v. Oklahoma State Bd. Of Equalization, 2008 OK 95 ¶ 13, 196 P.3d 511, 518-519. When the trial court's grant of summary judgment involves only legal questions, the standard of review is de novo. Id. LEGAL ANALYSIS Lindsey Nicole Henry Scholarship Act ¶7 Oklahoma public school districts are required to provide education and related services to all children with disabilities. 70 O.S. 2011 §13-101. 4 Following a statute amendment in 1993, each school district has had the option to provide these services or delegate this responsibility and enter into a written agreement with a private institution to provide the mandated services. 5 Id. Thus, for more than twenty years, each school district has had the statutory authority to decide whether it would provide this education or enter into a contract with a private institution to provide the required educational needs to students with disabilities. When the Lindsey Nicole Henry Scholarship Act was enacted in 2010, the legislature simply allowed parents and legal guardians the same right that school districts already enjoyed, the choice to use state funds to contract with an approved private institution for special education services. 70 O.S. 2012 Supp., §13-101.2. ¶8 The Act provides money through scholarships to eligible students to offset tuition costs at participating private schools. 70 O.S. 2012 Supp., §13-101.2 (A). Participation in the scholarship program is entirely voluntary with respect to eligible students and their families. Each family independently decides without influence from the State whether to enroll their child in the scholarship program or continue with specialized services at their current public school. ¶9 To qualify for the scholarship, the student must meet specified eligibility requirements and the student's parent or legal guardian must follow the application process. In general, to be "eligible", the student must: (1) be a student with a "disability" as defined by 70 O.S. 2011 §13-101; (2) have attended the prior school year at a public school; and (3) have an individualized educational plan ("IEP") in place prior to the request for a scholarship. 70 O.S. 2012 Supp., §13-101.2 (A). The school district must have reported the student as having been enrolled during the preceding school year. 70 O.S. 2012 Supp., §13-101.2 (B) (1). ¶10 The parent or legal guardian has the option to submit an application to the Department requesting the scholarship. Before application, the student must be accepted by an approved private school selected by the parent or legal guardian. 70 O.S. 2012 Supp., §13-101.2 (A). If the Department determines the student meets the eligibility requirements, the scholarship will be awarded and remain in effect until such time as the child returns to a public school. 70 O.S. 2012 Supp., §13-101.2 (B). Acceptance of the scholarship has the same effect as a parental revocation of the federally guaranteed rights for specialized education services. 70 O.S. 2012 Supp., §13-101.2 (F). The public school is then relieved of the associated state and federal mandates to provide specialized educational services and the associated financial costs. ¶11 Any private school, whether sectarian or non-sectarian, may participate in the scholarship program and accept eligible students so long as the school meets statewide educational standards, demonstrates fiscal soundness and meets health and safety requirements. 70 O.S. 2012 Supp., §13-101.2 (H). A school becomes "approved" by fulfilling the outlined criteria. The Act is void of any preference between a sectarian or non-sectarian private school. We find there is no influence being exerted by the State for any sectarian purpose with respect to whether a private school satisfies these requirements. ¶12 Although the Act is religion neutral, Taxpayers urge there is constitutional significance because there are more students attending sectarian private schools than non-sectarian. We disagree. ¶13 This same concern was raised and dismissed by the U.S. Supreme Court in an earlier school voucher case finding "the constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school." Zelman v. Simmons-Harris, et al., 536 U.S. 639, 641, 122 S. Ct. 2460, 2462 153 L. Ed. 2d 604. 6 The U.S. Supreme Court emphasized the important factors are the neutrality of the scholarship program and private choice exercised by the families instead of the number of students attending religious schools. 7 When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken. Zelman, supra. 536 US. at 652, 122 S. Ct. at 2467. ¶14 In Oklahoma, the Department funds the scholarship by issuing an individual warrant payable to the parent or legal guardian; it is not payable directly to the private school.70 O.S. 2012 Supp., §13-101.2 (J) (4). The parent or legal guardian then endorses the payment warrant to the independently chosen private school providing the contracted educational services. 70 O.S. 2012 Supp.,§13-101.2 (I)(1)(e). Scholarship funds deposited to a private sectarian school occur only as the result of the private independent choice by the parent or legal guardian. The Department has no influence on which private school the parent chooses, or the subsequent endorsement of the payment warrant. The Department never directs whether the scholarship payment is made to a private sectarian or non-sectarian school. ¶15 We are also persuaded by the fact that all "State" scholarship funds are paid to the parent or legal guardian and not to the private school. It is the parent who then directs payment by endorsement to the independently chosen private school. Any scholarship funds deposited to a private sectarian school occur as the sole result of the parent's independent selection free from State control or direction. As noted in Zelman, this independence of choice by the parent breaks the circuit between government and religion. "No Aid" Clause and Oklahoma Case History ¶16 Taxpayers urge that the purpose of the "no funding" clause of the Oklahoma Constitution is to provide a guarantee of religious liberty. They further reason that any scholarship payment to a private sectarian school is tantamount to State support of a sectarian institution. ¶17 The "no aid" clause of the Oklahoma Constitution, Article II, §5, provides: No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit or support of any priest, minister or other religious teacher or dignitary, or sectarian institution as such. (Emphasis added) We have determined that sectarian institution includes parochial and sectarian schools. Gurney v. Ferguson, 1941 OK 397 ¶ 0, 122 P.2d 1002. Thus, the question we must resolve is whether under the conditions outlined in the Act, does the deposit of scholarship funds to a private sectarian school constitute "public money" being "applied, donated, or used, directly or indirectly, for the use, benefit, or support" of a sectarian institution. Factors that impact our analysis include: (1) voluntary participation by families in scholarship program; (2) genuine independent choice by parent or legal guardian in selecting sectarian or non-sectarian private school; (3) payment warrant issued to parent or legal guardian; (4) parent endorses payment to independently chosen private school; (5) Act is religion neutral with respect to criteria to become an approved school for scholarship program; (6) each public school district has the option to contract with a private school to provide mandated special educational services instead of providing services in the district; (7) acceptance of the scholarship under the Act serves as parental revocation of all federally guaranteed rights due to children who qualify for services under 70 O.S. 2012 Supp., §13-101.2 (F); and (8) the district public school is relieved of its obligation to provide educational services to the child with disabilities as long as the child utilizes the scholarship. ¶18 Although this is a case of first impression before us, we will begin by reviewing early cases dealing with the "no aid" clause. We previously determined that the use of public funds and public property to provide gratuitous transportation to children attending a private parochial school is an improper gift of public funds to a sectarian institution, violating Article II, §5. Gurney, supra., Board of Educ., Ind. Sch. Dist. No. 52 v. Antone, 1963 OK 165, 384 P.2d 911. We reasoned that when a public school district provides bus transportation to the children attending the district's school, it constitutes direct aid to the school. Gurney, supra., 1941 OK 397 at ¶12. Likewise, when those same public school buses are used to provide free transportation to children attending a sectarian school, the public school is providing direct aid to the sectarian school. The use of public property to aid a sectarian institution is prohibited. Id. ¶19 In contrast, public money paid to a sectarian institution in exchange for the housing and care of orphans and thereby discharging the State's duty to provide for the needy, is not a violation of Article II, Section 5. Murrow Indian Orphans Home v. Childers, 1946 OK 187, ¶9, 171 P.2d 600, 197 Okla. 249, 250. 8 We clarified that as long as the services being provided "involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state, there is no constitutional provision offended." Murrow, Id. The Court noted that the downfall of Gurney was the use of public taxes to provide bus service to a sectarian institution for which no corresponding value was received by the state. Id. ¶20 The purpose of the "no aid" clause is to support the separation of church and state and to ensure that churches are free from state control and have the ability to function and operate separately from the state. Gurney, supra., 1941 OK 397 at ¶16. The concern is not the exposure to religious influence. Rather "it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do." Murrow,1946 OK 187 supra. at ¶9. ¶21 The Act provides a scholarship to a limited group of eligible students with disabilities. Participation in the scholarship program is strictly voluntary by the families and eligible students. The families who opt to take advantage of the scholarship independently choose which private school is best for the eligible student. Approved schools are determined without regard to religious affiliation and are based on statewide educational standards, health and safety regulations. The scholarship is paid to the parent who then endorses payment to the private school. The scholarship program does not directly fund religious activities because no funds are dispersed to any private sectarian school until there is a private independent selection by the parents or legal guardian of an eligible student. 70 O.S. 2012 Supp., §13-101.2 (B). Any benefit to a participating sectarian school arises solely from the private and independent choice of the parent or legal guardian of the child and not from any decree from the State. ¶22 Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state. ¶23 Murrow involved payment due under a contract entered into between the State and the sectarian orphanage. Taxpayers urge in the instant matter that the reasoning of Murrow is inapplicable in this matter as the payment made by the Department to the various private schools is awarded as a scholarship and not paid as a result of a signed contract. In Murrow, the State was fulfilling its duty to provide care for the needy. Similarly, each public school district can fulfill its state mandated duty to provide educational services to children by: (1) delivering services through its own school district (2) entering into approved arrangement with another public school district; (3) entering into a written agreement with an eligible private institution in the public school district to provide educational services; or (4) pursuant to the Act, providing a scholarship to eligible students to offset tuition costs to attend a private school. 70 O.S. 2011 § 13-101; 70 O.S. 2011 § 13-101.1 and 70 O.S. 2012 Supp. § 13-101.2. ¶24 The problem in Gurney is that public money was spent providing a service to the sectarian school without any value being given back to the State. Murrow, supra., 1946 OK 187 at ¶5. The determinative factor is linked to whether the service being provided by the sectarian agency "involve the substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state...." Murrow, supra. at ¶9 In such case, there is no constitutional provision offended. Id. Acceptance of the scholarship by the parent is deemed a revocation of the federally guaranteed rights for students who meet the requirements for a disability. This revocation relieves the school district of its obligation to the student to provide special education services mandated by the state and federal governments. Accordingly, we find the public school, the State, receives a substantial benefit, being relieved of the duty to provide special educational services to the scholarship recipient. ¶25 In Murrow we made the point that "[i]t is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do." Murrow, supra., 1946 OK 187 at ¶7. ¶26 We are persuaded that the Act is completely neutral with regard to religion and that any funds deposited to a sectarian school occur as the sole result of the parent's independent decision completely free from state influence. The scholarship payment warrant is made to the parent who then endorses funds to the private school the parent determined was best suited to provide special education services to their child with a disability. The Act is void of any suggestion or inference to favor religion or any particular sect. Private schools are chosen by the parent from private schools that are approved by meeting objective state educational standards irrespective of religious preference. The parent, not the State, determines where the scholarship funds will be applied. We are satisfied that under this scenario, the State is not adopting sectarian principles or providing monetary support of any particular sect. CONCLUSION ¶27 We are guided by our long standing jurisprudence that a legislative act is presumed to be constitutional and "will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution." Rural Water, supra. 2010 OK 51 at ¶15. We hold the Oklahoma "Lindsey Nicole Henry Scholarships for Students with Disabilities Act", a school voucher program limited to provide educational choices for children with disabilities, does not violate Article II, Section 5 of the Oklahoma Constitution. The portion of the trial court's judgment which granted summary judgment to Taxpayers and denied summary judgment to the State with respect to finding the Act violated Article II, Section 5 of the Oklahoma Constitution is reversed. This case is reversed in part and remanded to the district court with directions to enter judgment in favor of the State in accordance with this Opinion. The trial court is also directed to vacate the stay pending appeal. ¶28 DISTRICT COURT'S JUDGMENT IS REVERSED IN PART AND REMANDED WITH DIRECTIONS REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR (by separate writing), COLBERT, GURICH, JJ. - CONCUR FOOTNOTES 1 Plaintiffs named as Defendants, Janet Barresi, in her official capacity as State Superintendent of Public Instruction, The Oklahoma State Department of Education, and The Oklahoma State Board of Education. A Notice of Automatic Substitution of Party Pursuant to 12 O.S. 2011 §2025, was filed seeking automatic substitution of Joy Hofmeister, in her official capacity as State Superintendent of Public Instruction. We entered an Order on January 14, 2015, officially changing the style to reflect this substitution. 2 The district court issued a stay of its order pending resolution on appeal. 3 See, Colorado Christian University v. Weaver, 534 F.3d 1245 (2008); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1201, "Colorado Christian prohibit[s] preferences based on denominations (e.g. Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, etc.)... 4 This statute provides in part as follows: ".....It shall be the duty of each school district to provide special education and related services for all children with disabilities as herein defined who reside in that school district in accordance with the Individuals with Disabilities Education Act (IDEA), P.L. No. 105-17. This duty may be satisfied by: 1. The district providing special education for such children; 2. The district joining in a cooperative program with another district or districts to provide special education for such children; 3. The district joining in a written agreement with a private or public institution, licensed residential child care and treatment facility or day treatment facility within such district to provide special education for children who are deaf or hard-of-hearing, children who are blind or partially blind or other eligible children with disabilities; or 4. Transferring eligible children and youth with disabilities to other school districts which accept them and provide special education and related services for such children, with the district in which the child resides paying tuition therefor as herinafter provided. For those students who transfer pursuant to the provisions of the Education Open transfer Act, the receiving school district shall assume all responsibility for education and shall count the student for federal and state funding purposes according to the provisions of subsection B of Section 13-103 of this title. (Emphasis added). 5 Prior to the 1993 amendment, the statute provided in pertinent part: 3. The district joining in a cooperative program with a private or public institution within such district to provide special education for children who are deaf or hard-of-hearing, or for children who are blind or partially blind; or ...... Following the 1993 amendment, the statute now provides in pertinent part: 3. The district joining in a written agreement with a private or public institution, licensed residential child care and treatment facility or day treatment facility within such district to provide special education for children who are deaf or hard-of-hearing, children who are blind or partial blind or other eligible children with disabilities. (Emphasis added). 6 The U.S. Supreme Court in Zelman was presented with whether the voucher program violated the Establishment clause of the U.S. Constitution. The case before us relates not to a federal constitutional question, but rather whether the scholarship program funded by the Act violates the Oklahoma constitution's, "no aid" clause. Although the constitutional provision at issue is different, the analysis provides guidance. 7 Also see, Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3061, 77 L. Ed. 2d 721, no constitutional significance should attach even where 96% of scholarship recipients have enrolled in religious schools, as a result of a citizen's private independent choice and the scholarship program is neutral with respect to religion. 8 At issue in Murrow, is whether a payment by the State to a sectarian orphanage for care provided to dependent orphan children, in accordance with the terms of a contract, violates Article II, Section 5 of the Oklahoma Constitution as the payment of public money to a sectarian institution. TAYLOR, J., concurring: ¶1 I agree that two provisions of the Lindsey Nicole Henry Scholarships for Students with Disabilities Act (the Act), 70 O.S.2011, § 13-101.1 & 70 O.S.Supp. 2012, § 13-101.2, do not run afoul of Article II, Section 5 of the Oklahoma Constitution. ¶2 This Court has spoken directly on the issue now before it in Murrow Indian Orphans Home v. Childers, 1946 OK 187, 171 P.2d 600. Murrow did not hinge on whether the payment was made directly or indirectly to the religious institution. The plaintiffs in Murrow questioned payments made to a Baptist supported orphanage for the housing and care of dependent children of this state. Id. ¶¶ 2, 5. The care of these needy children was mandated by this State's Constitution. Id. ¶ 6. The orphanage's yearly cost per child was $225 to $250, and the state's payment to the orphanage per child was $70 under a contract with the orphanage. Id. ¶ 2. This Court determined that "so long as [the payments] involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state," they do not violate Article II, Section 5 of Oklahoma's Constitution. In Murrow, the orphanage did not benefit in that it expended more on a child's care than it received from the state coffers. We reiterated in Burkhardt v. City of Enid, 1989 OK 45, ¶ 15, 771 P.2d 608, 612, that the key factor in determining an Article II, Section 5 violation was where the governmental entity making a payment to a religious institution receive a substantial benefit in return. ¶3 Here, the services for special needs children is mandated by the federal government. The Act is religion neutral--it treats religious private schools the same as non-religious private schools. The Plaintiffs had the burden to show that the religious schools benefitted and that the state did not receive a substantial benefit, and they failed to present any evidence. The facts here are no different than the state making payments to a private institution, although religious, to care for needy, state-dependent children when those payments fail to cover the full cost of their care. ¶4 The facts here are no different than the State sending inmates of a state prison to a church-affiliated hospital for medical care. The facts here are no different than a state Medicaid recipient being treated at a church-affiliated clinic. The facts are no different than a church-owned construction company building a road or a bridge for the State. None of these examples have anything to do with religion. They all are simple contract situations. A fee for service in which the State contracts required services to a non-governmental entity. It has nothing to do with religion. It has everything to do with fee for service and a mutual benefit contract. ¶5 Under the Lindsey Nicole Henry Scholarships, the State is simply contracting with private schools to perform a service (education of children with special needs) for a fee. The State receives great benefit from this arrangement that has nothing to do with religion. It has to do with education and caring for children with special needs, whose education is the responsibility of the State. ¶6 It should be noted that the two private schools who are the largest recipients of these scholarship dollars have no religious affiliation. Andrea Eger, Public Money to Private Schools: Legal Limbo Persists for Scholarship Students with Disabilities, Tulsa World, Oct. 18, 2015, available at http://www.tulsaworld.com/news/education/public-money-to-private-schools-legal-limbo-persists-for-scholarship/article_ac864254-5dbb-5206-b9dc-1f2407797352.html. The Tulsa World article also reported that these scholarships do not cover the full cost of the private school tuition-further evidence of benefit to the state. Id. ¶7 The fact that the scholarship payments are made to the parents and then passed on by endorsing funds over to the private schools is irrelevant. It is still a fee-for-service arrangement that benefits the student, parents, and the State. The State has determined that it is economically efficient to contract its responsibility to these children with special needs to private schools. ¶8 There is a presumption that statutes are constitutional and that those challenging a statute as unconstitutional have a heavy burden. Liddell v. Heavner, 2008 OK 6, ¶ 16, 180 P.3d 1191, 1199-1200. The Plaintiffs failed to put forth evidence that the state did not receive a substantial benefit from the scholarship, the only factor this Court has articulated in scrutinizing legislation as violative of Article II, Section 5. ¶9 The Lindsey Nicole Henry Scholarships are simply fee-for-service contracts for a very narrowly defined group of children with disabilities. There is nothing unconstitutional about this under Article II, Section 5. The benefit of the arrangement is primarily to the State. There is clearly substantial benefit to the State of Oklahoma. Burkhardt, 1989 OK 45, ¶ 15, 771 P.2d at 612.

ffba6ae6-dbd5-4b6e-8c0c-7dc1667960a4

Heath v. Guardian Interlock Network, Inc.

oklahoma

Oklahoma Supreme Court

HEATH v. GUARDIAN INTERLOCK NETWORK, INC.2016 OK 18Case Number: 114023Decided: 02/23/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. NATHAN HEATH, Plaintiff/Appellant, v. GUARDIAN INTERLOCK NETWORK, INC., a Domestic Corporation; GUARDIAN INTERLOCK, INC., a Foreign Corporation; and GUARDIAN INTERLOCK, LLC., a Domestic Limited Liability Company, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Bernard M. Jones, Trial Judge ¶0 The defendant/appellee, Guardian Interlock Network, Inc., installed an ignition interlock device in the plaintiff/appellant, Nathan Heath's car. The device allowed Heath to start the vehicle if his breath/alcohol concentration did not meet or exceed a pre-set amount. Because Heath's monthly payment for rental, insurance of the device, taxes, and monthly maintenance exceeded the $25.00 "maintenance fee" cap set forth in 47 O.S. Supp. 2013 §6-212.3, he brought a class action lawsuit in the District Court of Oklahoma County against Guardian Interlock Inc., alleging that its fees were excessive. The trial judge, Honorable Bernard M. Jones, dismissed the lawsuit and Heath appealed. We retained the cause and hold that the $25.00 maintenance fee cap set forth in 47 O.S. Supp. 2013 §6-212.3 does not preclude the collection of other fees such as rental fees, taxes, or insurance/damage waiver fees. TRIAL COURT AFFIRMED. Mark B. Houts, Lucas J. Nunson, Edmond, Oklahoma, John M. Bunting, Patrick L. Hullum, Amy D. White, Lyndon W. Whitmire, Thomas G. Wolfe, Oklahoma City, Oklahoma, for Appellant. Tim N Cheek, Tyler J. Coble, Dixie Craven, Gerard F. Pignato, Oklahoma City, Oklahoma, George A. Gasper, Indianapolis, Indiana, for Appellee Guardian Interlock, Inc. Jared B. Haines, Assistant Solicitor General, Oklahoma City, Oklahoma, On Behalf of the State of Oklahoma Attorney General. KAUGER, J.: ¶1 The dispositive issue presented1 is whether the $25.00 monthly maintenance fee limitation set forth in 47 O.S. Supp. 2013 §6-212.32 for an interlock device installed in vehicles, precludes the collection of lease/rental fees, taxes, and insurance/damage waiver fees, etc. in excess of $25.00. We hold that the $25.00 maintenance fee cap set forth in 47 O.S. Supp. 2013 §6-212.3 does not preclude the collection of other fees such as rental fees, taxes, or insurance/damage waiver fees, etc. FACTS ¶2 On July 18, 2012, the plaintiff/appellant, Nathan Heath (Heath/driver) was arrested on a complaint of driving under the influence of alcohol in Oklahoma County, Oklahoma. [Apparently, this was his second arrest for driving under the influence after an arrest sometime in 2009, also in Oklahoma County.] He pled guilty to one count of driving under the influence of alcohol, and received a three (3) year deferred sentence. On August 11, 2012, he again drove intoxicated and this time crashed into a parked car. He was charged with, and pled guilty to, another three (3) year deferred sentence. After Heath failed to pay supervision fees, perform community service work, attend a live victim impact panel and obtain alcohol/drug assessments, arrest warrants were issued for violation of his deferred sentences. ¶3 As a result of both the July 18, 2012, and August 11, 2012, convictions, the Oklahoma Department of Public Safety revoked Heath's drivers license on August 17, 2012, and on September 10, 2012, respectively. Subsequently, Heath obtained a restricted license which permitted him to drive only vehicles equipped with a Board of Tests for Alcohol and Drug Influence (Board of Tests) approved ignition interlock device. ¶4 On December 20, 2013, Heath contracted with the defendant/appellee, Guardian Interlock (Guardian) to install and maintain in Heath's car an interlock device known as the Guardian Interlock Ignition Interlock System (interlock device). The lease term was from December 20, 2013, to December 20, 2018. The monthly rental payments under the lease was $39.99 (plus sales tax). Additionally, the inception of the lease required the following payments: Installation Charge                                                      $85.00 First Monthly or Bi-Monthly Payment                           $39.99 Sales Tax                                                                  $9.63 Total Due                                                                   $134.62 The total payments under the lease were listed as follows: Installation Fee                                                               $91.28 Total of All Monthly or Bi-Monthly Monitoring Visit Fees     $2,627.71 Total of All Lease Payments                                            $2,600.35 De-Installation Fee                                                          $50.00 Total of All Other Fees and Charges                                 $0.00 Total of All Payments under Lease                                   $5,369.34 ¶5 The lease also had a maintenance clause in which the lessee was directed to schedule and keep monthly or bi-monthly monitoring appointments.3 Heath also accepted a loss/damage waiver agreement for a charge of $5.00 a month which would release him from any liability for theft or damage to the interlock device. It appears the total amount of Heath's monthly payment is $75.40 a month, as evidenced by receipts for his payments, even though this amount is not reflected on the face of the lease. ¶6 On September 2, 2014, Heath filed a Class Action Petition in the District Court of Oklahoma County against Guardian. Heath argued that: 1) pursuant to 47 O.S. Supp. 2013 §6-212.3,4 DUI offenders with revoked driving privileges are allowed to only drive vehicles equipped with an ignition interlock device; 2) the statute limits the monthly maintenance fee on such devises to $25.00; and 3) Heath argues that he has had an ignition interlock device installed on his vehicle since December of 2013, but has to pay a $39.00 lease payment, a $25.00 maintenance/monitoring fee, $5.41 in sales tax, and a $5.00 damage waiver. ¶7 On February 27, 2015, Guardian filed a motion for summary judgment arguing that the undisputed facts establish that Heath has never been charged in excess of $25.00 for maintenance and that anything else he was charged was not a maintenance fee and thus not limited by the express language of the statute. On May 1, 2015, the trial court held a hearing on the motion for summary judgment. In an order filed May 12, 2015, the trial court granted Guardian's motion for summary judgment. Heath appealed on June 10, 2015. ¶8 On June 15, 2015, the Court requested the Oklahoma Attorney General to respond to Heath's appeal. We retained the cause on June 23, 2015. The Attorney General responded on July 6, 2015, arguing that: 1) the ordinary meaning of "maintenance fee" does not include charges for other goods and other services; 2) the petitioner's reading of the statute is unreasonable; and 3) the petitioner's interpretation is contrary to the public policy intended to be advanced by the Legislature. The briefing cycle was completed on August 17, 2015, and the cause was assigned on October 16, 2015. THE $25.00 MAINTENANCE FEE CAP SET FORTH IN 47 O.S. Supp. 2013 §6-212.3 DOES NOT PRECLUDE THE COLLECTION OF OTHER FEES SUCH AS RENTAL FEES, TAXES, OR INSURANCE/DAMAGE WAIVER FEES, ETC. ¶9 Title 47 O.S. Supp. 2005 §6-212.3 was enacted in 2005 and it provided in pertinent part: . . .E. The person [restricted licensed driver] shall pay the monthly maintenance fee for each ignition interlock device installed pursuant to this section. The person shall comply with all provisions of law regarding ignition interlocutory devices. . . . It was amended effective November 1, 2011, to provide in pertinent part: . . .F. The person [restricted licensed driver] shall pay the monthly maintenance fee, not to exceed Twenty-five Dollars ($25.00) per month, for each ignition interlock device installed pursuant to this section. The person shall comply with all provisions of law regarding ignition interlock devices. . . . The statute was again amended in 2012 and 2013, but the pertinent portions remain unchanged since 2011. Consequently, we reference the current 2013 version. ¶10 Heath argues that the legislative intent and statutory history show that the $25.00 maintenance fee limitation in §6-212.3 was intended to apply to any and all fees. In support of his argument, Heath contends that: 1) the statute was amended in 2011 to provide a cost limitation of $25.00 which did not exist before; 2) the bill, as introduced, did not include a $25.00 cap, but the cap was added by the house committee; 3) four bill summaries provide that the "cost" or "fee" for each interlock device would not exceed $25.00 a month without any mention of "maintenance;" and 4) the bill's author stated on the Senate floor that while he believed companies were currently charging $70.00 or so a month, the bill would cut that down to $25.00. ¶11 Guardian argues that the plain language of 47 O.S. Supp. 2013 §6-212.35 show that it only applies to maintenance fees and that because the statute's plain, ordinary meaning is clear, no further analysis of the statute is necessary. Nevertheless, Guardian also contends that: 1) the Board of Tests, and the Tax Commission also interpret §6-212.3 as applying only to maintenance fees; and 2) public policy requires that statute to be read as applying only to maintenance fees because no company would offer such devices or could afford to offer such devices in Oklahoma without being able to recoup their costs of providing and maintaining such devices. ¶12 In addition to the testimony of both the past and current director of the Board of Tests stating that the statute applies only to maintenance fees,6 Guardian provides the webpage of the Board of Tests regarding Ignition Interlocutory Devices and it provides in pertinent part: Service Centers The BOT approves and physically inspects ignition interlock service centers on an annual basis. A license is issued to each service center. Should you question whether a service center is properly licensed, you can ask to see the license or contact the BOT for license verification. Ignition interlock devices are leased and serviced through a statewide network of licensed service centers. The lease and service agreement may include fees for installation, monthly service, and removal of the ignition interlock device. Other fees may be assessed by the service center for rescheduling, violation resets, permanent lockouts, etc. You are encouraged to contact the manufacturer to inquire about types and costs of fees. (Emphasis in original) Guardian also submits a letter from the Oklahoma Tax Commission to the Oklahoma Ignition Interlock Association which states that in addition to the $25.00 maintenance fee, it is anticipated that most providers will charge additional rates for rental and labor charges and that the $25.00 maintenance fee is subject to sales tax.7 ¶13 We agree with Guardian that the statute is unambiguous and that Heath's attempts to look behind the unambiguous statute are thwarted by clear and concise Oklahoma law regarding statutory construction. Unlike Congress, or some other states, the Oklahoma Legislature does not maintain an extensive legislative record or history of legislative matters.8 Even if we had such a legislative record or history, when confronted with a statute that is plain and unambiguous on its face, we would not look to such legislative history as a guide to its meaning because looking beyond an unambiguous statute to legislative history would only create ambiguity, not resolve it.9 Nor would we look to the testimony of individual lawmakers.10 ¶14 Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.11 Intent is ascertained from the whole act considering its general purpose and objective with relevant provisions considered together to give full force and effect to each.12 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.13 Statutes are interpreted to attain that purpose,14 championing the broad public policy purposes underlying them.15 In the absence of a contrary definition used in a legislative act, we must assume that the lawmaking authority intended for them to have the same meaning as that attributed to them in ordinary and usual parlance.16   ¶15 The overall purpose of the restricted driving statutes does not appear to be to save drivers with a restricted license money on all fees and costs associated with an interlock ignition device. This is evidenced in 47 O.S. Supp. 2013 §6-212.3(A) which clearly states that "the Department [of Public Safety] shall require the installation of an ignition interlock device, at the expense of the person, as provided in subsection D of this section."17 Subsection D states that "upon payment of a restricted driver license fee of Fifty Dollars ($50.00) and all other appropriate fees by the person."18 The Legislature has clearly chosen to limit only the amount of the maintenance fee which has been required since the statute's inception. ¶16 Rather, the obvious purpose and objective of the statute is to ensure that a convicted drunk driver does not continue to put themselves and others at risk by their reckless behavior. Requiring installment of an interlock device clearly attempts to curtail such a risk and reckless behavior. In the context of motor vehicles and associated equipment, "maintenance" means "the upkeep of property or equipment and "maintain" means to keep in good condition by making repairs, correcting problems, etc."19 This ordinary definition is distinguished from commonly used terms like sale, rental, lease, installation, and even taxes. ¶17 The Legislature could have easily and clearly limited fees related to rental/lease, installation and/or taxes, but it did not do so.20 We decline to do so.21 To do so, would render the Legislature's use of the word "maintenance" meaningless, irrelevant and superfluous.22 Rather, we give effect to the clear meaning of the statute's unambiguous language.23 The $25.00 maintenance fee cap set forth in 47 O.S. Supp. 2013 §6-212.3 does not preclude the collection of other fees such as rental fees, taxes, or insurance/damage waiver fees.24 CONCLUSION ¶18 Only where the Legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.25 Statutes are interpreted to attain that purpose,26 championing the broad public policy purposes underlying them.27 In the absence of a contrary definition used in a legislative act, we must assume that the lawmaking authority intended for them to have the same meaning as that attributed to them in ordinary and usual parlance.28 ¶19 Requiring installment of an interlock device is an attempt to curtail the behavior of convicted drunk drivers who continue to put themselves and others at risk. The ordinary definition of "maintenance" means the upkeep of property or equipment or to keep in good condition by making repairs, correcting problems, etc. which is distinguished from commonly used terms like sale, rental, lease, installation, and even taxes. The Legislature could have, but did not limit fees related to rental/lease, installation and/or taxes, nor is it our place to do so. Accordingly, we hold that the $25.00 maintenance fee cap set forth in 47 O.S. Supp. 2013 §6-212.3 does not preclude the collection of other fees such as rental fees, taxes, or insurance/damage waiver fees. TRIAL COURT AFFIRMED. REIF, C.J, COMBS, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COLBERT, GURICH, JJ., concur. WATT, J., not voting. FOOTNOTES 1 The Petition in Error lists 21 separate issues which we consolidate into one dispositve issue. 2 Title 47 O.S. Supp. 2013 §6-212.3 provides in pertinent part: A. Whenever the records of the Department of Public Safety reflect the revocation of the driving privilege of a person as provided in subsection A of Section 6-205.1 of this title, the Department shall require the installation of an ignition interlock device, at the expense of the person, as provided in subsection D of this section, after the mandatory period of revocation, as prescribed by Section 6-205.1 of this title, . . . D. 1. The requirements of subsection A or B, as applicable, of this section shall be a prerequisite and condition for reinstatement of driving privileges, in addition to other conditions for driving privilege reinstatement provided by law or by rule of the Department. Upon request and eligibility, the Department shall issue a restricted driver license to the person, upon payment of a restricted driver license fee of Fifty Dollars ($50.00) and all other appropriate fees by the person. The restricted driver license and the driving record of the person shall indicate by an appropriate restriction that the person is only authorized to operate a vehicle upon which an ignition interlock is installed. If the person is operating a motor vehicle owned or leased by an employer who has not given permission for an ignition interlock device to be installed, the employer shall provide the person with a letter, on official letterhead of the employer, which the person shall carry in his or her immediate possession at all times when operating a motor vehicle and shall display for examination and inspection upon demand of a peace officer. . . . E. Installation of an ignition interlock device pursuant to subsection A or B of this section shall run concurrently with a court order, if any, for installation of an ignition interlock device, or devices pursuant to the same conviction. F. The person shall pay the monthly maintenance fee, not to exceed Twenty-five Dollars ($25.00) per month, for each ignition interlock device installed pursuant to this section. The person shall comply with all provisions of law regarding ignition interlock devices. G. The ignition interlock device provider shall make available to the Department regular reports of violations, if any, for each ignition interlock device installed pursuant to this section. . . . Because the $25.00 limitation existed when Heath's license was suspended and the pertinent portions of the statute have remained unchanged since that time, references are to the current version. 3 The maintenance clause provided in pertinent part: MAINTENANCE. Lessee will schedule and keep monthly or bi-monthly monitoring appointments at the Guardian Interlock Service Center at the following location 3131 NW 38th Street Oklahoma City OK 73112 or the designated service location. LESSEE MUST RETURN FOR MONITORING SERVICE NO LATER THAN THE 20th DAY OF FEBRUARY AND 2014. The Service Center will monitor and calibrate the System, make necessary repairs or adjustments, and report compliance/non-compliance with the monthly or bi-monthly monitoring schedule to the Lessee . . . 4 Title 47 O.S. Supp. 2013 §6-212.3, see note 2, supra. 5 Title 47 O.S. Supp. 2013 §6-212.3, see note 2, supra. 6 The Board of Tests enacts the administrative rules for ignition interlock devices in Oklahoma, Oklahoma Administrative Code 40:50-1-1 et seq.,. sets forth the requirements for such devices, approval of licensed vendors, installation requirements, maintenance and calibration requirements etc. The rules themselves do not define "maintenance fee" but they do define as "fee" as a "non-refundable administrative fee." Oklahoma Administrative Code 40:50-1-1.1 Definitions. According to Guardian, both the previous director of the Board of Tests and the current director, both unequivocally state that the statute applies only to maintenance fees, and not the total amount that may be charged for all fees. Attached to Guardian's Motion for Summary Judgment is the deposition testimony of both directors supporting testimony. 7 The letter from the Oklahoma Tax Commission is dated December 28, 2011, and it is addressed to James R. Adelman. It states in pertinent part: Under the new law, due to go into effect on the 1st of November, 2011, the legislature has stated that the provider is to charge $25.00 to maintain and calibrate the equipment. It is anticipated that most providers will then charge an additional rate for rental and the separately stated labor charges. . . . The sale of tangible personal property, unless specifically exempted by the provisions of the Oklahoma Sales Tax Code, is subject to the levy of sales tax. 68 O.S. §1354(A)(1). Gross receipts, gross proceeds or sales price is the base upon which sales tax is calculated. The terms are synonymous and are defined as "the total amount of consideration. . . for which personal property or services are sold, leased, or rented....whether received in money or otherwise. . ." 68 O.S. 1352(a)(4). Therefore, sales tax should be calculated on the $25.00 maintenance and calibration charge. . . . The letter is signed by Brenda Sullivan, Tax Policy Analyst. 8 See, Gladstone v. Bartlesville Independent School Dist. No. 30, 2003 OK 30, ¶18, 66 P.3d 442. 9 See, Keating v. Edmondson, 2001 OK 110, ¶15, 37 P.3d 882 [When a statute's language is plain and unambiguous and the meaning clear and unmistakable, no justification exists for the use of interpretative devices to fabricate a different meaning.]; Roberts v. United States, 906 F.2d 1140, 1142 (10th Cir. 1990) ["When statutory language is not ambiguous, it is conclusive 'absent a clearly expressed legislative intent to the contrary.' Miller v. Commissioner, 836 F.2d 1274, 1283 (10th Cir.1988) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980)). Such an expression of contrary legislative intent must appear on the face of the statute, read in its entirety; beyond the statute itself, "legislative history should be used to resolve ambiguity, not create it." Miller, 836 F.2d at 1283 (citing United States v. Missouri Pa. R.R., 278 U.S. 269, 278, 49 S. Ct. 133, 136, 73 L. Ed. 322 (1929); United States v. Rone, 598 F.2d 564, 569 (9th Cir.1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345,63 L. Ed. 2d 780 (1980)); see also United States v. Brian N., 900 F.2d 218, 221 (10th Cir.1990) (refusing to fully analyze legislative history because statutory language was unambiguous)."]. 10 Haynes v. Caporal, 1977 OK 166, ¶10, 571 P.2d 430 ["At trial, legislative intent of § 536 was sought to be established through the testimony of an individual senator and house member at the time of its passage. This court is not bound, and need not consider such evidence. Testimony of individual legislators or others as to happenings in the Legislature is incompetent, since that body speaks solely through its concerted action as shown by its vote. Davis v. Childers, 181 Okl. 468, 74 P.2d 930 (1938)"]; See, Allen v. State, 1988 OK 99, ¶11, 769 P.2d 1302 [Bills that fail, much like the testimony of individual lawmakers, are never probative of legislative intent. A legislature's failure to express its will through enacted law constitutes its official silence.]. 11 Jones v. State ex rel. Office of Juvenile Affairs, 2011 OK 105, ¶15, 268 P.3d 72; King v. King, 2005 OK 4, ¶22, 107 P.3d 570; Haggard v. Haggard, 1998 OK 124, ¶1, 975 P.2d 439. 12 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; Clifton v. Clifton, 1990 OK 88, ¶7, 801 P.2d 693; Maule v. Indep. Sch. Dist. No. 9 of Tulsa Cnty, 1985 OK 110, ¶11, 714 P.2d 198. 13 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 11, supra,; Fuller v. Odom, 1987 OK 64, ¶4, 741 P.2d 198. 14 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 13,1supra; Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800 cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995). 15 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 11, supra; State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824. 16 Title 20 O.S. 2011 §1 provides: Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained. Smith v. City of Stillwater, 2014 OK 42, ¶30, 328 P.2d 1192; State ex rel. Carwright v. Georgia-Pacific Corp., 1982 OK 148, ¶20, 663 P.2d 718; Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 OK 112, ¶7, fn 12, 614 P.2d 576. 17 Title 47 O.S. Supp. 2013 §6-212.3, see note 2 supra. 18 Title 47 O.S. Supp. 2013 §6-212.3, see note 2, supra. 19 Merriam-Webster Dictionary (2015). 20 We are not concerned that such fees will be allowed to be unlimited either. In addition to the competitive marketplace, as the Attorney General points out, interlock device providers cannot charge for goods or services not actually rendered, engage in unfair or anticompetivie practices by colluding to raise the price beyond what the free market allows. Such practices are prohibited by antitrust and consumer protection laws. See generally, 79 O.S. 2011 Ch.4 §§201 et. seq; 15 O.S. 2011 §§751 et seq. 21 Keating v. Edmondson, see note 9, supra [The Court does not read exceptions into a statutory provision not made by the Legislature. Chamberlain v. American Airlines, 1987 OK 62, ¶15, 740 P.2d 717; City of Bethany v. District Court of Oklahoma County, 1948 OK 38, ¶16, 191 P.2d 187; City of Bristow v. Groom, 1944 OK 223, ¶11, 151 P.2d 936.]. 22 Estes v. ConocoPhillips Co., 2008 OK 21, ¶16, 184 P.3d 518. 23 Keating v. Edmondson,, see note 9, supra; Wiseman v. Boren, 1976 OK 2, ¶10, 545 P.2d 753; Shaw v. Grumbine, 1929 OK 116, ¶0, 278 P. 311. 24 The Oklahoma Attorney General argues that Heath's interpretation of the statute is economically infeasible, making it a nullity. According to the Attorney General, purchasing a interlock device usually costs around $1000.00, which does not include the price for installation, maintenance and other services. http://www.drinkinganddriving.org/Artilces/personal-tech.html. Leasing such devices may be the only affordable option for some people. Furthermore, also according to the Attorney General, the average cost to lease such a device is $80.00 a month with additional monitoring fees. National Highway Traffic Safety Administration, Case Studies of Ignition Interlock Programs, 31 (April 2012), http://www.nhtsa.gov/staticfiles/nti/dpf/811594.pdf. 25 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 11, supra; Haggard v. Haggard, see note 11, supra. 26 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 11, supra; Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, see note 14, supra. 27 Jones v. State ex rel. Office of Juvenile Affairs, see note 11, supra; King v. King, see note 11, supra; State ex rel. Dept. of Human Serv. v. Colclazier, see note 15, supra. 28 Title 20 O.S. 2011 §1, see note 16, supra. Smith v. City of Stillwater, see note 16, supra; State ex rel. Carwright v. Georgia-Pacific Corp., see note 16, supra; Riffe Petroleum Co. v. Great Nat. Corp., Inc., see note 16, supra.    

b95b9b0c-fca4-4a91-9661-7edf90746d2f

Oklahoma Coalition for Reproductive Juctice v. Cline

oklahoma

Oklahoma Supreme Court

OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE v. CLINE2016 OK 17Case Number: 114307Decided: 02/23/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE, on behalf of itself and its members; and NOVA HEALTH SYSTEMS, d/b/a REPRODUCTIVE SERVICES, on behalf of itself, its staff, and its patients, Plaintiffs/Appellees, v. TERRY L. CLINE, in his official capacity as Oklahoma Commissioner of Health; and LYLE KELSEY, in his official capacity as Executive Director of the Oklahoma State Board of Medical Licensure and Supervision, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE PATRICIA G. PARRISH, PRESIDING ¶0 In the district court, Plaintiffs challenged H.B. 2684 as unconstitutional under several theories. The district court agreed and found H.B. 2684 to be unconstitutional. Defendants appeal, only presenting Plaintiffs' theories that H.B. 2684 violates two sections of the Oklahoma Constitution and the question of issue preclusion based on this Court's opinion in Cline v. Okla. Coalition for Reprod. Justice, 2013 OK 93, 313 P.3d 253. This Court retained the appeal for disposition. REVERSED AND REMANDED. Patrick R. Wyrick, Cara N. Rodriguez, Jared B. Haines, Office of the Attorney General, Oklahoma City, Oklahoma, for appellants. J. Blake Patton, Walding & Patton PLLC, Oklahoma City, Oklahoma, for the appellees. TAYLOR, J. ¶1 The dispositive question presented to this Court is whether H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 375-80 (codified at 63 O.S.Supp. 2014, § 1-729a), violates either of two sections of the Oklahoma Constitution: Article V, Section I (vesting legislative authority in the Oklahoma House and Senate); or Article V, Section 59 (prohibiting special laws). We answer in the negative. A challenge to H.B. 2684 as violative of any other Oklahoma constitutional provision or as violative of the United States Constitution is not before this Court, and we are thus limited in our decision.1   I. HISTORY   ¶2 In determining the questions now before this Court, it is necessary to review H.B. 2684's predecessor, H.B. 1970, ch. 216, 2011 Okla. Sess. Laws 821-23 (codified at 63 O.S.Supp. 2011, § 1-729a), and our two pronouncements addressing it. In 2011, the Oklahoma Legislature enacted H.B. 1970, prohibiting the off-label use of Mifeprex (generally known as mifepristone or RU-486) and misoprostol (brand name Cytotec) for use in abortions.2 The effect of H.B. 1970 was to ban medication abortions in Oklahoma. Cline II, 2013 OK 93, ¶ 25, 313 P.3d at 262. ¶3 In the first pronouncement, this Court, following Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), affirmed the district court's decision that H.B. 1970 was unconstitutional. Okla. Coal. for Reprod. Justice v. Cline, 2012 OK 102, ¶ 3, 292 P.3d 27, 27-28 (Cline I). After this Court rendered the Cline I decision, the appellees filed a petition for certiorari in the United States Supreme Court. See Cline v. Okla. Coal. for Reprod. Justice, 133 S. Ct. 2887 (2013). The U.S. Supreme Court granted the petition and certified two questions to this Court: whether H.B. 1970 prohibits "(1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies." Cline II, 2013 OK 93, ¶ 8, 313 P.3d at 257. In Cline II, our second pronouncement, we answered both questions affirmatively. Id. ¶ 1, 313 P.3d at 255. The U.S. Supreme Court then dismissed the petition for certiorari as improvidently granted. Cline v. Okla. Coal. for Reprod. Justice, 134 S. Ct. 550 (2013). ¶5 In 2014, in response to the Cline II decision, the Legislature passed H.B. 2684, amending Title 63, Section 1-729a of the Oklahoma Statutes. H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 375-80. H.B. 2684 was approved by the Governor and became effective on November 1, 2014. In H.B. 2684, the Legislature made 16 factual findings, including that the use of medication-inducing drugs presents significant risk to women, the complications of abortion-inducing drugs were higher than those for surgical abortions, fourteen women had died after off-label use of abortion-inducing drugs, and the Federal Drug Administration (FDA) had been unable to determine whether the off-label use caused the deaths.3 The Legislature expressed its intent that the act not prohibit all medication abortions or the use of methotrexate in treating ectopic pregnancies. H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 377, § 1-729a(A)(16) ("[T]his act does not ban the use of misoprostol in chemical abortion (and allows it as part of the FDA-approved Mifeprex regimen) . . . ."). ¶6 H.B. 2684 restricts Mifeprex and misoprostol u se for abortions to the FDA-approved final Mifeprex label, prohibits methotrexate use for abortions except to terminate ectopic pregnancies,4 provides for liability of physicians who knowingly or recklessly perform an abortion in violation of H.B. 2684, and makes doctors subject to discipline and liability for violating H.B. 2684. Id. at 377-79, § 1-729a(C)-(H). Because the Mifeprex label only allows its use for 49 days after the last menstrual period and Mifeprex off-label use allows for its use up to 63 days, the effect of H.B. 2684 is to ban the use of the Mifeprex and misoprostol drugs for pregnancies between 49 and 63 days from the last menstrual period. ¶7 The Oklahoma Coalition for Reproductive Justice and Nova Health Systems (Plaintiffs) filed this challenge to H.B. 2684's restriction of off-label use of Mifeprex in the district court against the Oklahoma Commissioner of Health and the Executive Director of the Oklahoma State Board of Medical Licensure and Supervision (State). The Plaintiffs alleged, as a factual matter and without submitting evidentiary support, that H.B. 2684 will prevent some of Reproductive Services' patients from obtaining a medication abortion and will prevent others from receiving the medical treatment according to the most current scientific evidence and advances in medicine. The Plaintiffs challenged H.B. 2684 as violating rights guaranteed by the Oklahoma Constitution, including the right to due process by limiting women's rights to choose to terminate a pregnancy, to bodily integrity, and to equal protection; violating the Oklahoma constitutional prohibition against special laws; and improperly delegating legislative authority. As stated in the first paragraph, only the last two challenges are properly before this Court. ¶8 While this case was pending before the district court, this Court, in an interim proceeding, enjoined enforcement of H.B. 2684 until its constitutionality "is fully and finally litigated." Okla. Coal. for Reprod. Justice v. Cline, 2014 OK 91, ¶ 1, 339 P.3d 887. Both sides then moved for summary judgment in the district court. The district court rendered judgment in favor of the Plaintiffs, finding that H.B. 2684 is a special law in violation of Article V, Section 59 of the Oklahoma Constitution. The State appealed, raising only the questions of issue preclusion, unauthorized delegation of legislative authority, and special law under Article V, Section 59. We retained the appeal for disposition and asked for additional briefs specifically addressing the differences in H.B. 1970 and H.B. 2684. II. STANDARD OF REVIEW ¶9 Summary judgment settles only questions of law. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. The standard of review of questions of law is de novo. Id. Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts. Runyon v. Reid, 1973 OK 25, ¶ 15, 510 P.2d 943, 946. III. THE UNDISPUTED FACTS WHICH ARE SUPPORTED BY COMPETENT EVIDENTIARY MATERIALS ¶10 Medication abortion is a procedure for terminating a pregnancy using medications alone. In the United States, medication abortion generally follows a protocol using both Mifeprex and misoprostol, which are taken one after the other respectively. Methotrexate is used to abort ectopic pregnancies. In 2000, based on previously conducted clinical trials, the FDA approved Mifeprex's final printed label (FPL) pursuant to Subpart H of Part 314, Subchapter D, Chapter I, Title 21 of the Code of Federal Regulations, entitled "Accelerated Approval of New Drugs for Serious or Life-Threatening Illnesses." The Mifeprex FPL only applies to marketing and distribution by the manufacturer, and it requires: (1) Mifeprex distribution only to doctors who have read and understand the prescribing information,5 (2) three office visits for patients, (3) administration of Mifeprex "only in a clinic, medical office, or hospital, by or under the supervision of a physician able to assess the gestational age of an embryo and to diagnose ectopic pregnancies," (4) patients to read the medication guide and read and sign the patient agreement before treatment,6 (5) administration of one dose of 600 milligrams(mg) of Mifeprex, (6) oral administration of 400 micrograms (g) of misoprostol given two days later unless an abortion has been confirmed, (7) a follow-up visit about fourteen days after the administration of the Mifeprex to confirm complete termination of the pregnancy, (8) warning to patients that some women may experience vaginal bleeding or spotting up to sixteen days,7 and (9) warning to patients that heavy or moderate bleeding is an indication of an incomplete abortion. This protocol was approved for use up to the first 49 days after a woman's last menstrual period. The FPL states that before administrating Mifeprex, physicians should provide patients with an explanation of the procedure along with a copy of the medication guide and patient agreement. The FPL also states that afterward, the physician should provide notice to the manufacture of any ongoing pregnancy or serious adverse events. It is uncontested that the FDA's requirements apply to the manufacturer and are marketing restrictions and other special distribution conditions, but the requirements do not restrict or control a doctor's practice of medicine or the use of medication once it is distributed. ¶11 Within a year of the FDA's approval of Mifeprex in 2000, ninety-six percent of medication abortions did not follow the FPL or the protocol used in the clinical trials on which the FPL's approval was based. Since the FPL's approval, eight fatal bacterial infections have been reported in the United States where the women were administered Mifeprex and misoprostol for a medication abortion and did not follow the FPL, but followed an off-label protocol. The FDA has not established a casual connection between the off-label protocol and the deaths. However, the FDA now warns on the FPL about the risk of a bacterial infection following Mifeprex's use.8 These same fatal bacteria also occur following other obstetric and gynecologic processes. The ACOG materials state that the off-label protocol is more effective with fewer adverse effects. Mifeprex is on the list of medications that require a Risk Evaluation and Management Strategy (REMS).9 ¶12 Plaintiff Reproductive Services follows an off-label protocol which is endorsed by the American College of Obstetricians and Gynecologists (ACOG). The ACOG recommended off-label, or evidence-based, protocol is based on "good and consistent scientific evidence" and includes vaginal, buccal, and sublingual administration of misoprostol by the patient away from a clinic. The ACOG off-label protocol provides for administration of one 200 milligram dose of Mifeprex, compared to the 600 milligrams of FDA on-label protocol, followed by 800 micrograms of misoprostol to be patient administered, compared to FDA's protocol of 400 milligrams to be doctor administered. The ACOG materials provide that medication abortions can be provided safely through nonphysician clinicians and that the protocol can be used for up to 63 days of gestation (calculated from the last menstrual period). IV. IMPROPER DELEGATION OF LEGISLATIVE AUTHORITY ¶13 The Plaintiffs contend that H.B. 2684 improperly delegates legislative authority to the FDA. Articles IV and V of the Oklahoma Constitution are the foundation underlying Oklahoma's non-delegation doctrine. Article IV, Section 1 requires separation of the three branches of government. Okla. Const. art. IV, § 1. Article V, Section 1 vests legislative authority "in a Legislature consisting of a Senate and House of Representatives." Okla. Const. art. V, § 1. Based on these two provisions, it is well settled that the Legislature may not delegate its policy-making authority. Tulsa Cnty. F.O.P., Lodge No. 188 v. Bd. of Cnty. Comm'rs of Tulsa Cnty., 2000 OK 2, ¶ 8, 995 P.2d 1124, 1129. Although the Legislature is restrained from delegating policy-making authority, it can nonetheless delegate rule-making authority to implement its policies. Id. ¶ 9, 995 P.2d at 1129. ¶14 The Plaintiffs rely on City of Okla. City v. State ex rel. Okla. Dept. of Labor, 1995 OK 107, 918 P.2d 26 (Oklahoma City), Democratic Party of Okla. v. Estep, 1982 OK 106, 652 P.2d 271, and In re Initiative Petition No. 366, 2002 OK 21, 46 P.3d 123, for support that H.B. 2684 improperly delegates legislative authority to the FDA. In Oklahoma City, this Court determined that Oklahoma's Minimum Wages on Public Works Act, 40 O.S.1991, §§ 196.1 to 196.14, violated Article IV, Section 1 and Article V, Section 1 of the Oklahoma Constitution by delegating "the power to determine prevailing wages to [the United States Department of Labor] without setting standards for the exercise of that determination." Oklahoma City, 1995 OK 107, ¶ 1, 918 P.2d at 28. The provisions required the Oklahoma Labor Commissioner to adopt the United States Department of Labor's prevailing wage on an on-going basis. Id. ¶ 9, 918 P.2d at 29. The act allowed the United States Department of Labor to change Oklahoma's prevailing wage law without legislative action. Id. ¶ 8, 918 P.2d at 29. ¶15 In In re Initiative Petition No. 366, State Question No. 689, 2002 OK 21, 46 P.3d 123, this Court ruled an initiative petition unconstitutional before it was submitted to a vote of the people. The petition called for the State Board of Education and the State Board of Regents for Higher Education to promote principles, but failed to state any principles. Id. ¶ 16, 46 P.3d at 128. Because the legislation failed to provide guidelines for implementing rules, the legislation was deemed to have improperly delegated the Legislature's authority by allowing agencies unfettered discretion to make law. Id. ¶ 18, 46 P.3d at 129. ¶16 Similarly to In re Initiative Petition No. 366, in Estep, this Court ruled that the Oklahoma Campaign Finance Act, in effect at the time, violated the non-delegation doctrine. 1982 OK 106, ¶ 1, 652 P.2d 271, 272. The act allowed the Campaign Commission unfettered discretion to promulgate rules without legislative standards for guidance. Id. ¶ 16, 652 P.2d at 277. These three cases teach that the Legislature, or the voters acting as a legislature through the initiative process, delegates its authority when it enacts legislation giving an agency (particularly a federal agency that is not bound by Oklahoma's legislative policies) the power to alter Oklahoma law. When the Legislature allows an agency, or other entity, to make rules without sufficient legislative guidelines by setting binding policy on the agency, the Legislature has unconstitutionally delegated its authority to determine Oklahoma policy. ¶17 With this lesson in mind, the question before us is whether H.B. 2684 allows the FDA to change Oklahoma abortion laws by changing a FPL of currently approved drugs or adopting a FPL for future drug approvals or whether it restricts only Mifeprex, misoprostol, and methotrexate to the current Mifeprex FPL when used for inducing abortions. We are guided by well-established principles in assessing the conformity of a challenged state statute to our fundamental law. Liddell v. Heavner, 2008 OK 6, ¶ 16, 180 P.3d 1191, 1199-1200. Our state constitution is a bulwark to which all statutes must yield. In reviewing a statute for conformity to Oklahoma's constitution, we begin with a presumption of constitutionality. Id. A statute will be upheld unless it is clearly, palpably, and plainly inconsistent with the Constitution. Id. The party challenging a statute's constitutionality has a heavy burden to establish that it is in excess of legislative power. Id. Bound by these rules, we must, if possible, construe H.B. 2684 as not allowing the FDA's decisions to change Oklahoma law; the means of doing so is to apply H.B. 2684's restrictions only to Mifeprex, misoprostol, and methotrexate use in abortions, excluding ectopic pregnancies, according to the current Mifeprex FPL. ¶18 Subsection B(1) of H.B. 2684 defines "[a]bortion-inducing drug" as a "medicine, drug, or any other substance prescribed or dispensed with the intent of inducing an abortion." The next sentence limits the previous sentence by stating "[t]his includes off-label use of drugs known to have abortion-inducing properties which are prescribed specifically with the intent of causing an abortion, such as misoprostol (Cytotec), and methotrexate." This second sentence only refers to drugs which were in use at the time of H.B. 2684's enactment, not drugs subsequent to its enactment. Because we give meaning to all words in a statute, we must construe these sentences as limiting the definition to drugs known at the time of H.B. 2684's enactment to have abortion-inducing properties and prescribed with the specific intent of causing an abortion. See Moore v. Hayes, 1987 OK 82, ¶ 7, 744 P.2d 934, 937. ("Legislative enactments must be interpreted so as to render every word and sentence operative, rather than in a manner which would render a specific provision nugatory.") To construe the statute to include any future FDA-approved abortion-inducing drugs would make the second sentence superfluous. And the almost complete incorporation of the Mifeprex FPL in H.B. 2684 only strengthens this construction. ¶19 Both the Plaintiffs' and the State's evidence show that the only three drugs which come within this definition are Mifeprex, misoprostol, and methotrexate. The parties do not even mention other drugs in the submissions or evidence. Thus, we read H.B. 2684 as defining abortion-inducing drugs to include only Mifeprex, misoprostol, and methotrexate, the only currently known drugs prescribed and used with the intent of causing an abortion. No other drugs fall within Subsection B(1)'s definition of abortion-inducing drugs. ¶20 We next turn to Section D of H.B. 2684 which prohibits the use of all abortion-inducing drugs with the exception of the Mifeprex FPL protocol. Having defined abortion-inducing drugs as Mifeprex, misoprostol, and methotrexate (except when used in ectopic pregnancies), Section D prohibits the off-label use for intentional abortions of Mifeprex, misoprostol, and methotrexate, allowing only the Mifeprex FPL protocol for these three drugs when they are used to induce abortions. ¶21 In addition to limiting the definition of abortion-inducing drugs to the three referenced in the bill, the Legislature has shown its intent to restrict only these three drugs in other parts of H.B. 2684. Subsection B(4) defines the Mifeprex regimen as the regimen found in "the FDA-approved Mifeprex" FPL and as the only FDA-approved abortion-inducing drug regimen. Subsections E through H parrot the Mifeprex FPL and clarify the Legislature's intent that H.B. 2684 only allows the use of the Mifeprex FPL to induce abortions using the three mentioned drugs. ¶22 H.B. 2684 restricts the use of only Mifeprex, misoprostol, and methotrexate to the Mifeprex FPL protocol when they are used to induce abortions. In so doing, it does not allow the FDA any authority. Rather, H.B. 2684 merely incorporates the Mifeprex FPL as the only allowed use of Mifeprex, misoprostol, and methotrexate in medication abortions, and unlike Oklahoma City, it does not allow a federal agency's actions to affect Oklahoma's law. Simply, H.B. 2684 is not unconstitutional as an improper delegation of legislative authority. V. SPECIAL LAW ¶23 The Plaintiffs also challenge H.B. 2684 as a violation of the Oklahoma Constitution, Article V, Section 59. Section 59 provides: Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted. Okla. Const. art. V, § 59. To determine whether a statute violates Section 59, we must begin with the three-pronged inquiry identified in Reynolds v. Porter, 1988 OK 88, ¶ 13, 760 P.2d 816, 822. "1) Is the statute a special law or general law? 2) If the statute is a special law, is a general law applicable? and 3) If a general law is not applicable, is the statute a permissible special law." Id. We examine each prong in turn. A. Is H.B. 2684 a Special or General Law? ¶24 We must identify the subject the law seeks to classify ("the class") to determine whether H.B. 2684 is a special or general law. Elias v. City of Tulsa, 1965 OK 164, ¶ 9, 408 P.2d 517, 519. "A statute relating to all persons or things of a class is a general law; one relating to particular persons or things of a class is a special law." Reynolds, 1988 OK 88, ¶ 14, 760 P.2d at 822. Where a class is underinclusive, the statute is a special law. Id. ¶ 21, 760 P.2d at 824. ¶25 In Reynolds, the Court first identified the overarching subject classified by the legislation--limitations of civil actions. Id. ¶ 18, 760 P.2d at 823. The Reynolds legislation carved out special treatment for "actionable medical malpractice claims which cannot be discovered with reasonable diligence until after three years." Id. As the statute carved out a subclass apart from all statutes on limitations of civil actions, it was underinclusive and a special law. Id. ¶26 The Plaintiffs argue H.B. 2684 is a special law in two ways: 1) the law classifies the drugs Mifeprex and misoprostol only for off-label use in ending a pregnancy from any other off-label use of the drugs; and 2) the law classifies only women who seek and doctors who provide abortions from all other women seeking or doctors providing medical care. The district court agreed with the Plaintiffs, ruling that the general class must be all FDA-approved drugs or all FDA drugs approved under Subpart H. The State argues that H.B. 2684 is a general law that seeks to classify all abortion-inducing drugs. ¶27 H.B. 2684 incorporates 16 provisions of legislative findings, each related to the use of abortion-inducing drugs. H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 375-77, § 1-729a(A)(1)-(16). We have already construed H.B. 2684 to regulate only Mifeprex, misoprostol, and methotrexate and only when used to induce abortions. Just as the legislation in Reynolds was a special law because it classified a smaller class than all limitations on civil actions, so too is H.B. 2684 as it classifies Mifeprex, misoprostol, and methotrexate only when used as abortion-inducing drugs. We agree with the Plaintiffs that the subject of H.B. 2684 does not cover the use of these drugs in any other instance or any other drugs; therefore, H.B. 2684 is a special law. According to Reynolds, it is subject to further scrutiny. B. Is a general law applicable? ¶28 The second prong of the Reynolds inquiry is to determine if a general law is applicable. 1988 OK 88, ¶ 13, 760 P.2d at 822. More specifically, the question is whether "the subject of the legislation is reasonably susceptible of general treatment or . . . there is a special situation possessing characteristics impossible of treatment by general law." Id. ¶ 15, 760 P.2d at 822. The subject of H.B. 2684 is Mifeprex, misoprostol, and methotrexate when used as abortion-inducing drugs. To determine if the subject is susceptible to general treatment, we examine the nature and objective of the legislation and the conditions and circumstances of its enactment. See id. ¶29 The Plaintiffs maintain a general law could better address the subject of the legislation, arguing that a law that encompasses all off-label uses of FDA-approved drugs is the more appropriate vehicle for general treatment. Therefore, H.B. 2684 would fail the second prong of the Reynolds inquiry. The State argues that a general law would not be feasible as it would regulate far beyond the scope of H.B. 2684--for instance, a general law regulating all uses of misoprostol would ban uses such as the induction of labor. We agree with the State. ¶30 Section 16 of H.B. 2684 lays out the statute's nature and purpose--to ban the off-label use of Mifeprex, misoprostol, and methotrexate when used as abortion-inducing drugs. The factual findings, specifically the deaths and hospitalizations caused by off-label use of Mifeprex and misoprostol and the dangers of methotrexate, establish the basis for their legislative restrictions by special law. Based on our construction of H.B. 2684, we agree that the Legislature specifically tailored a special law to address the use of Mifeprex, misoprostol, and methotrexate when prescribed with the intent of inducing abortions. To broaden the scope with a general law would force the Legislature to restrict off-label use of these and other drugs without a showing of harm from the off-label use. The regulation of the use of Mifeprex, misoprostol, and methotrexate when used as abortion-inducing drugs does not currently present characteristics for general treatment; we therefore agree with the State that a general law is not applicable under prong two of the Reynolds inquiry. C. Is the legislation a permissible special law? ¶31The third prong of the Reynolds inquiry requires this Court to "determine if the special legislation is reasonably and substantially related to a valid legislative objective." Reynolds, 1988 OK 88, ¶ 16, 760 P.2d at 822. In Reynolds, the Court scrutinized each of the legislation's aims with the classification to determine if there was "a degree of correlation between" them. Id. ¶ 23, 760 P.2d at 825. The legislation at issue was a three-year limitation on the amount of recoverable damages in a medical malpractice action even though a claim's existence was not discoverable during the three years. Id. ¶ 1, 760 P.2d at 818. One aim the Legislature put forth was to control the cost of medical malpractice insurance. Id. ¶ 22, 760 P.2d at 825. The Court rejected any correlation between the legislative aim and the class as no documented legislative findings existed to show that the class, actionable medical malpractice cases not discovered until after three years, created "an excessively high incidence of losses that it calls for special statutory treatment." Id. ¶32 Here, the Legislative objectives advanced by the State are two fold: 1) to protect women from dangerous off-label use of abortion inducing drugs; and 2) to require physicians to follow the Mifeprex FPL regime. H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 376, § 1-729a(A)(15). These objectives must be reasonably and substantially related to H.B. 2684's underinclusive class, Mifeprex, misoprostol, and methotrexate when used as abortion-inducing drugs. For the first objective, the Legislature has taken great pains to incorporate 16 legislative findings documenting the danger off-label use of these medications have for women when used as abortion-inducing drugs. The documented cases of death and injury are not disputed by the Plaintiffs, but we must acknowledge the Plaintiffs' evidence which identifies the dangers of pregnancy and wide-variety of much more dangerous practices not regulated by the statute. However, it is not the place of this Court to question legislative wisdom. EOG Res. Mktg., Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶ 20, 196 P.3d 511, 521 ("It is not the role of this Court to question the desirability, wisdom, or logic of a valid statutory classification."). ¶33 Here, the State's evidence shows that the class restricted by H.B. 2684 is reasonably and substantially connected to protecting women, and so too to for the State's second objective, to require physicians to follow the Mifeprex FPL. Because the evidence is mixed, we must defer to the Legislature, when examining the evidence under Oklahoma's special law provision, and the Legislature's function as a policy-making body when it has support for its acts. While H.B. 2684 is a special law, it is a permissible special law as the legislative aims are reasonably and substantially related to the class H.B. 2684 seeks to protect. VI. CONCLUSION ¶34 We find that H.B. 2684 does not violate the non-delegation doctrine of Article V, Section 1 because H.B. 2684 incorporates the current Mifeprex FPL, restricting only the off-label use of Mifeprex, misoprostol, and methotrexate when used to induce abortions. H.B.2684 is unaltered by any future FDA actions. We find also that H.B. 2684 does not violate Article V, Section 59 of the Oklahoma Constitution. This opinion does not address other Oklahoma constitutional provisions nor any United States constitutional provisions which H.B. 2684 may violate as those questions are not before this Court and are, thus, improper considerations until presented to this Court. We also must recognize that, by the States' own evidentiary materials, more restrictions on abortions result in higher complication rates and in decreased women's safety. Because H.B. 2684 is the only effective Oklahoma legislation restricting abortion at this time, we need not address the impact of future abortion-related restrictions on H.B. 2684's constitutionality. ¶35 The district court's judgment is reversed. The matter is remanded to the district court for a determination of H.B. 2684's validity under other constitutional provisions, both state and federal. The stay entered in Okla. Coalition for Reprod. Justice v. Cline, 2014 OK 91, 339 P.2d 887, for HB 2684, remains in place until the constitutionality of the Act is fully and finally litigated. REVERSED AND REMANDED. Concur: Reif, C.J., and Kauger, Winchester, Taylor, and Gurich, J.J. Concur Specially: Combs, V.C.J. (by separate writing). Dissents: Edmondson, J. Not Voting: Watt and Colbert, JJ. FOOTNOTES 1 As a non-dispositive issue, the Plaintiffs claim that the district court and this Court are bound by many facts and issues that were determined in Cline v. Okla. Coalition for Reprod. Justice, 2013 OK 93, 313 P.3d 253 (Cline II). Specifically, the Plaintiffs contend that the courts in the present case are bound by [t]he Act's restriction of the use of the drug RU-486 or "any other abortion inducing drug, medicine or other substance" in the manner and to the regimen set forth in the medication FPL when used for abortion is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those who do. Cline II, 2013 OK 93, ¶ 27, 313 P.3d at 262. Under the doctrine of issue preclusion, "once a court has decided an issue of fact or of law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim." Miller v. Miller, 1998 OK 24, ¶ 25, 956 P.2d 887, 897. Only the question of whether this finding "was necessary and essential to the outcome of that prior case" is at issue here. State ex rel. Tal v. City of Okla. City, 2002 OK 97, ¶ 20, 61 P.3d 234, 245. "[T]he issue is necessarily determined if the judgment would not have been rendered but for the determination of that issue." Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 457-58. In Cline II, this Court was not asked to rule on the restrictive use of RU-486 (Mifeprex), but on the restrictive use of misoprostol and of methotrexate. The quote on which the Plaintiffs rely could be excised from Cline II without changing this Court's answer to the certified questions. We therefore disregard the Plaintiffs' issue-preclusion argument. 2 Misoprostol's label specified that it was for use in treating gastric ulcers. Cline II, 2013 OK 93, ¶ 12, 313 P.3d at 258. 3 Section A of H.B. 2684 provides: A. The Legislature finds that: 1. The U.S. Food and Drug Administration (FDA) approved the drug mifepristone (brand name "Mifeprex"), a first-generation [selective] progesterone receptor modulator ([S]PRM), as an abortion-inducing drug with a specific gestation, dosage, and administration protocol; 2. The FDA approved mifepristone (brand name Mifeprex) under the rubric of 21 C.F.R., Section 314.520, also referred to as "Subpart H", which is the only FDA approval process that allows for postmarketing restrictions. Specifically, the Code of Federal Regulations (CFR) provides for accelerated approval of certain drugs that are shown to be effective but "can be safely used only if distribution or use is restricted"; 3. The FDA does not treat Subpart H drugs in the same manner as drugs which undergo the typical approval process; 4. As approved by the FDA, and as outlined in the Mifeprex final printed labeling (FPL), an abortion by mifepristone consists of three two-hundred-milligram tablets of mifepristone taken orally, followed by two two-hundred-microgram tablets of misoprostol taken orally, through forty-nine (49) days LMP (a gestational measurement using the first day of the woman's "last menstrual period" as a marker). The patient is to return for a follow-up visit in order to confirm that the abortion has been completed. This FDA-approved protocol is referred to as the "Mifeprex regimen" or the "RU-486 regimen"; 5. The aforementioned procedure requires three office visits by the patient, and the dosages may only be administered in a clinic, medical office, or hospital and under supervision of a physician; 6. The Mifeprex final printed labeling (FPL) outlines the FDA-approved dosage and administration of both drugs in the Mifeprex regimen, namely mifepristone and misoprostol; 7. When the FDA approved the Mifeprex regimen under Subpart H, it did so with certain restrictions. For example, the distribution and use of the Mifeprex regimen must be under the supervision of a physician who has the ability to assess the duration of pregnancy, diagnose ectopic pregnancies, and provide surgical intervention (or has made plans to provide surgical intervention through other qualified physicians); 8. One of the restrictions imposed by the FDA as part of its Subpart H approval is a written agreement that must be signed by both the physician and patient. In that agreement, the woman attests to the following, among other statements: a. "I believe I am no more than 49 days (7 weeks) pregnant", b. "I understand that I will take misoprostol in my provider's office two days after I take Mifeprex (Day 3)", and c. "I will do the following: return to my provider's office in two days (Day 3) to check if my pregnancy has ended. My provider will give me misoprostol if I am still pregnant"; 9. The FDA concluded that available medical data did not support the safety of home use of misoprostol, and it specifically rejected information in the Mifeprex final printed labeling (FPL) on self-administering misoprostol at home; 10. The use of abortion-inducing drugs presents significant medical risks to women, including but not limited to abdominal pain, cramping, vomiting, headache, fatigue, uterine hemorrhage, viral infections, and pelvic inflammatory disease; 11. Abortion-inducing drugs are associated with an increased risk of complications relative to surgical abortion. The risk of complications increases with advancing gestational age, and, in the instance of the Mifeprex regimen, with failure to complete the two-step dosage process; 12. In July 2011, the FDA reported 2,207 adverse events in the United States after women used abortion-inducing drugs. Among those were 14 deaths, 612 hospitalizations, 339 blood transfusions, and 256 infections (including 48 "severe infections"); 13. "Off-label" or so-called "evidence-based" use of abortion-inducing drugs may be deadly. To date, fourteen women have reportedly died after administering abortion-inducing drugs, with eight deaths attributed to severe bacterial infection. All eight of those women administered the drugs in an "off-label" or "evidence-based" manner advocated by many abortion providers. The FDA has received no reports of women dying from bacterial infection following administration according to the FDA-approved protocol for the Mifeprex regimen. The FDA has not been able to conclude one way or another whether off-label use led to the eight deaths; 14. Medical evidence demonstrates that women who utilize abortion-inducing drugs incur more complications than those who have surgical abortions; 15. Based on the foregoing findings, it is the purpose of this act to: a. protect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs, and b. ensure that physicians abide by the protocol approved by the FDA for the administration of abortion-inducing drugs, as outlined in the drugs' final printed labeling (FPL); and 16. In response to the Oklahoma Supreme Court's decision in Cline v. Oklahoma Coalition for Reproductive Justice (No. 111,939), in which the Oklahoma Supreme Court determined, in contravention of this Legislature's intent, that this act prohibits all uses of misoprostol for chemical abortion and prohibits the use of methotrexate in treating ectopic pregnancies, it is also the purpose of this act to legislatively overrule the decision of the Oklahoma Supreme Court and ensure that should such questions be presented before that Court in the future it will reach the proper result that this act does not ban use of misoprostol in chemical abortion (and allows it as part of the FDA-approved Mifeprex regimen) nor prevent the off-label use of drugs for the treatment of ectopic pregnancy. 4 Each time the ban on off-label use of methotrexate in H.B. 2684 is discussed, the exception for methotrexate use for ectopic pregnancies should be understood even though not continuously repeated. 5 These doctors must also be able to provide surgical intervention in cases of incomplete abortion or severe bleeding or make such plans through others, to assure patient access to medical facilities equipped to provide blood transfusions and resuscitation, and to sign and return a prescriber's agreement. 6 For the patient agreement in the Mifeprex FPL, see U.S. Food and Drug Administration, Patient Agreement: Mifeprex (mifepristone) Tablets (last visited Nov. 23, 2015), http://www.fda.gov/downloads/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm111361.pdf. 7 The warning also notes that eight percent of women experience this type of bleeding for more than thirty days. 8 The Mifeprex FPL now warns: Serious and sometimes fatal infections and bleeding occur very rarely following spontaneous, surgical and medical abortions, including following Mifeprex use. No causal relationship between the use of Mifeprex and misoprostol and these events has been established." 9 REMS are "plans that use risk minimization strategies beyond the professional labeling to ensure that the benefits of certain prescription drugs outweigh their risks." U.S. Food and Drug Administration, A Brief Overview of Risk Evaluation & Mitigations Strategies (REMS) (last visited Nov. 23, 2015) http://www.fda.gov/downloads/AboutFDA/Transparency/Basics/UCM328784.pdf.     COMBS, V.C.J., with whom GURICH, J., joins, concurring specially: ¶1 I concur with the majority's determination that H.B. 2684, ch. 121, 2014 Okla. Sess. Laws 375-80, does not violate the non-delegation doctrine of Okla. Const. art. 5, § 1 and is a permissible special law that does not violate Okla. Const. art. 5, § 59. However, although the Legislature has the authority to draw upon many resources in drafting and creating legislation, and the final language of legislation may adopt in toto the FDA's final printed protocol, H.B. 2684 is not without some overreach. ¶2 Once again, those who do not practice medicine have determined to insert themselves between physicians and their patients, with the insistence they know what is best when it comes to the standard of care. It is undisputed that the FDA's final printed labeling does not restrict or control a doctor's practice of medicine or the use of medication once it is distributed. The FDA understands the role of physicians in adhering to the best possible standard of care. In the form of H.B. 2684, the Oklahoma Legislature has chosen to ignore this. While H.B. 2684 does not prohibit all medication abortions, it nonetheless binds Oklahoma physicians and their patients to the FDA's final printed labeling, regardless of whether evidence and the judgment of the medical community indicate it is not the best method for providing medication abortion. ¶3 As the majority notes, ninety-six percent of medication abortions do not follow the final printed labeling or the protocol used in the clinical trials on which the label's approval was based. See Cline v. Oklahoma Coalition for Reproductive Justice (Cline II), 2013 OK 93, ¶21, 313 P.3d 253. Plaintiff Reproductive Services follows an off-label protocol endorsed by the American College of Obstetricians and Gynecologists (ACOG). ACOG determined that evidence-based medication abortion protocols such as the one used here are superior to the FDA-approved regime in terms of efficacy and adverse effects.1 Dr. Daniel A. Grossman, co-author of the ACOG Practice Bulletin Medical Management of First-Trimester Abortion, stated in his affidavit: "in my opinion, HB 2684 serves no valid, medical purpose and will harm women by forcing them to receive inferior medical care." Affidavit of Daniel A. Grossman in Support of Plaintiff's Motion for Partial Summary Judgment, p. 3 , R. Vol. 1, Tab 7, App. 2. ¶4 In Cline II, 2013 OK 93, this Court examined a prior statute requiring adherence to the FDA's final printed labeling for abortion-inducing drugs. We noted with disapproval the law's drastic interference in the role of physicians and agreed with the determination of the district court that restricting the use of abortion-inducing drugs to the regime in the final printed labeling "'is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those who do.'" Cline II, 2013 OK 93, ¶27 (quoting Okla. Coal. for Repro. Justice v. Cline, No. CV-2011-1722, slip op., ¶7 (Dist. Ct. Okla. Cnty. May 11, 2012)). H.B. 2684 requires adherence to a protocol in contravention of prevailing medical standards; one that simultaneously shrinks the window in which medication abortion is accessible to the women of Oklahoma. This Court's above-quoted statement from Cline II remains apt. Further, the medical community should take heed: now that the Legislature has declared itself willing to dictate medical protocol and practice within this limited context, what areas of the practice of medicine are next? FOOTNOTES 1 See ACOG Practice Bulletin No. 143: Medical Management of First-Trimester Abortion (March, 2014), at pp. 2 and 11, Ex. B to Grossman Aff., R. Vol. 1, Tab 7. The Summary of Recommendations and Conclusions in the Practice Bulletin Provides in pertinent part: The following recommendations are based primarily on good and consistent scientific evidence (Level A): Based on efficacy and adverse effect profile, evidence-based protocols for medical abortion are superior to the FDA-approved regimen. Vaginal, buccal, and sublingual routes of misoprostol administration increase efficacy, decrease continuing pregnancy rates, and increase the gestational age range for use as compared with the FDA-approved regimen. Regimens that use low doses of mifepristone (200 mg) have similar efficacy and lower costs compared with to [sic] those that use mifepristone at 600 mg. Women can safely and effectively self-administer misoprostol at home as part of a medical abortion regimen. Medical abortion also can be provided safely and effectively by nonphysician clinicians. Follow-up after receiving mifepristone and misoprostol for medical abortion is important, although an in-clinic evaluation is not always necessary. Misoprostol-only medical abortion regimens are significantly less effective than those that use a combination of mifepristone and misoprostol.      

f0db384b-b053-42fc-8828-f66007804cfa

In the Matter of the Estate of Carlson

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ESTATE OF CARLSON2016 OK 6Case Number: 110720Decided: 01/20/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE ESTATE OF: CAROL JEAN CARLSON DEBRA GLOVER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CAROL JEAN CARSON, Appellant, v. CLIFFORD CORNISH, FARM CREDIT SERVICES and ELDIN LEWIS, Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 A grantor executed transfer-on-death deeds for two properties. Both properties were subject to mortgages, securing promissory notes executed by the grantor. Shortly after executing the transfer-on-death deeds, the grantor died. The grantees and one of the lenders filed creditors' claims against the decedent grantor's estate asserting the debt secured by the mortgages on the two properties was a liability of the estate. The personal representative denied the claims. The grantees and lender filed ancillary petitions on claims. In an order determining the extent of the estate's liability, the trial court determined that the claims were liabilities of the estate to be paid by the personal representative in the due course of administration. The personal representative appealed and the Court of Civil Appeals reversed. This Court granted certiorari. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED Randall Allen Gill and Jeff K. Rhodes, Tulsa, OK, for Appellant Debra Glover. Brent D. Coldiron, Oklahoma City, OK, for Appellees Clifford Cornish and Eldin Lewis. Victor Eric Morgan, Tulsa, OK, for Appellee Farm Credit Services. COMBS, V.C.J.: ¶1 At issue in this cause is whether the estate of a deceased grantor of mortgaged properties conveyed by transfer-on-death deed is liable for the underlying debt, when the grantor's will contained express instructions for the payment of all debts secured by mortgages. We determine that it is. I. FACTS AND PROCEDURAL HISTORY ¶2 Carol Jean Carlson (Decedent) learned she was terminally ill in 2011, and retained an attorney to assist her in planning the disposition of her estate (Estate). On August 24, 2011, Decedent executed three transfer-on-death deeds (TODDs) pursuant to the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258 for real property she owned, as well as a Last Will and Testament. One of the pieces of real property transferred via TODD went to Debra Glover-- who was later appointed Personal Representative of the Estate--and is not at issue in this appeal. The first of the other two TODDs named Appellee Clifford Cornish (Cornish) as grantee and the second named Eldin Lewis (Lewis). For purposes of this opinion, Appellees Cornish and Lewis will be collectively referred to as Grantees. Decedent died on August 29, 2011, five days after executing the TODDs and her Last Will and Testament. ¶3 The TODD to Lewis concerns the following parcel: [a] tract of land being a part of the South Half (S/2) of the Northeast Quarter (NE/4) of Section Five (5), Township Twelve (12) North, Range One (1) West of the Indian Meridian, Oklahoma County, Oklahoma … . TODD to Eldin B. Lewis, R. 285. Prior to Decedent's estate planning and the execution of the TODD, Decedent executed a promissory note in the amount of $140,224.35 on December 19, 2006, in favor of The Margee and Robert W. Minter Living Trust (Trust). R. 241. This note was secured by a mortgage, filed December 21, 2006, which encumbered the property conveyed to Lewis via the TODD. Mortgage of Real Estate, R. 242. Lewis timely accepted the TODD. On December 7, 2011, Lewis filed a proof of claim with the Personal Representative for the remaining debt in the amount of $123,530.09. The Personal Representative rejected Lewis' claim on December 16, 2011. Notice of Rejection of Creditor's Claim, R. 74 ¶4 The TODD to Cornish concerns a 31-acre parcel of real property in Oklahoma County described as: [a]ll that part of the West Half (W/2) of Section Thirty-Three (33), Township Fourteen (14) North, Range One (1) East of the Indian Meridian, Oklahoma County, Oklahoma, that lies West of the S.L. & S.F. Railroad right-of-way and South of Hogback road (sometimes referred to as Jones Spencer road). Transfer on Death Deed to Clifford Earl Cornish, R. 59. Previously, on May 27, 2007, Decedent executed a note and security agreement in favor of Appellee Farm Credit Services (FCS) in the amount of $96,000.00. The note is secured by a mortgage in favor of FCS executed on the same day and filed on May 29, 2007. A second note and security agreement, amending the first, were executed on September 16, 2010, for the amount of $83,778.60. ¶5 The record contains a letter from the Personal Representative's attorney dated November 2, 2011, advising Cornish that the property he was to receive through the TODD was subject to a mortgage. The letter noted the language of 58 O.S. 2011 § 1255(B), stated that the mortgage remained attached to the land, that the owner of the land remains responsible for paying it, and provided an enclosed disclaimer for Cornish to sign if he desired not to accept ownership of the property. Letter to Clifford Earl Cornish, R. 72-73. ¶6 Cornish instead decided to accept ownership of the parcel conveyed by the TODD, and signed an affidavit to that effect on December 4, 2011. During probate of the Estate, Cornish filed a creditor's claim against the Estate arguing that the note, security agreement, and mortgage were all executed by Decedent and the debt is the Estate's alone, citing a pay all debts provision in Decedent's Last Will and Testament. Claim of Clifford Earl Cornish, R. 79. The Personal Representative rejected Cornish's claim on December 16, 2011. FCS also filed a creditor's claim with the Personal Representative, for the amount of the note secured by the mortgage on the property granted to Cornish. FCS asserted that the full amount was due and payable under the terms of the note. The Personal Representative rejected this claim on December 22, 2011. The record indicates FCS has begun foreclosure proceedings on the property securing the note, taken by Cornish pursuant to the TODD. ¶7 FCS filed its Ancillary Petition on Claim on January 9, 2012. Grantee Cornish filed his Ancillary Petition on Claim on January 10, 2012. On January 10, 2012, the Personal Representative filed an Application for Order Determining the Extent of the Estate's Liability concerning the claims of Grantee Cornish and FCS. On January 27, 2012, Grantee Lewis filed his own Ancillary Petition on Claim. The Personal Representative filed a second Application for Order Determining Extent of Estate's Liability on February 3, 2012, concerning Grantee Lewis' claim. ¶8 On April 6, 2012, the trial court entered an order granting the Appellees' petitions, approving the ancillary claims, and finding the mortgages and notes to be liabilities of the Estate. The Personal Representative filed a Petition in Error on May 25, 2012. On appeal, Personal Representative contends the trial court erred as a matter of law by allowing the creditors' claims of Grantees and FCS because : 1) allowing the claims was contrary to the express language of 58 O.S. 2011 § 1255(A) and the purpose of the NTPA; 2) the trial court lacked jurisdiction because TODDs are nontestamentary instruments that may not be revoked by will; and 3) the intent/language of Decedent's Last Will and Testament was insufficient to override the provisions of the NTPA without express, specific language requiring payment. ¶9 The Court of Civil Appeals, in an opinion filed on June 11, 2015, reversed the decision of the trial court and remanded for further proceedings. The Court of Civil Appeals determined that Grantees did not have standing to pursue creditors' claims against the Estate to satisfy the notes and mortgages on their respective properties. Further, the Court of Civil Appeals determined that while FCS possessed standing as the holder of a note and mortgage, the trial court prematurely granted FCS' claim because FCS was required to foreclose on the property, obtain a deficiency judgment, and only then present a claim to the Estate for payment. ¶10 Grantees filed their Petition for Certiorari on June 24, 2015, asserting the Court of Civil Appeals decided a question of substance not heretofore determined by this Court. We granted certiorari on October 26, 2015, and the cause was assigned to this office on October 27, 2015. III. STANDARD OF REVIEW ¶11 Probate proceedings are of equitable cognizance. In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111. Although this Court will examine and weigh the evidence, there is a presumption that the trial court's decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Speers, 2008 OK 16, ¶8, 179 P.3d 1265; In re Estate of Holcomb, 2002 OK 90, ¶8. If legally correct, the trial court's ruling will not be reversed because of faulty reasoning, an erroneous finding of fact, or consideration of an immaterial issue. In re Estate of Speers, 2008 OK 16, ¶8; In re Estate of Holcomb, 2002 OK 90, ¶8; In re Estate of Maheras, 1995 OK 40, ¶7, 897 P.2d 268. IV. ANALYSIS A. The Trial Court Correctly Determined Appellees' Claims Are Liabilities of the Estate ¶12 The first question we must answer is whether the trial court erred when it determined the notes, secured by mortgages on the land transferred to Grantees, are liabilities of the Decedent's estate. We hold that it did not. 1. Decedent's intent, as expressed by her Last Will and Testament and the TODDs, was for her estate to pay all of her debts, including those secured by mortgages on the properties transferred to Grantees via TODD. ¶13 Of paramount importance in a probate proceeding is discerning and implementing a decedent's intent. Title 84 O.S. 2011 § 151 provides: "[a] will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible." Amongst other provisions, Decedent's Last Will and Testament contains the following directive concerning her debts: 2. PAYMENT OF DEBTS: I hereby direct that all my debts, including the expenses of my last illness and burial and the expenses of administration of my estate, be paid by my executor except that the payment of any debts secured by mortgage or pledge of real or personal property may be postponed until payable by its terms. Last Will and Testament of Carol Jean Carlson, R. 1. It is undisputed in this cause that the TODDs and Decedent's Last Will and Testament were executed on the same day and conceived as a single estate plan. Pursuant to 84 O.S. 2011 § 154, "[s]everal testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument." ¶14 The TODDs at issue in this cause are nontestamentary instruments, authorized by the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. §§ 1251-1258. Specifically, 58 O.S. 2011 § 1258 provides: "[a] deed in transfer-on-death form, executed in conformity with the Nontestamentary Transfer of Property Act, shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes." Even so, though the TODDs are nontestamentary in that they need not comply with other provisions of Title 58 or Title 84, nothing in the NTPA prevents the TODDs from being examined with Decedent's simultaneously executed testamentary instruments to determine Decedent's intent in this instance. Because all of the instruments in question were executed on the same day and as part of a comprehensive plan, this Court will interpret them together in order to discern Decedent's intent.1 Discerning Decedent's intent is the emphasis of the entire probate process. In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; Miller v. First National Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75. ¶15 The unambiguous debt-payment provision of Decedent's Last Will and Testament, along with the TODDs, indicate Decedent's intent was that the notes secured by the mortgages on the properties conveyed to Grantees by TODD be paid by Decedent's estate. This determination is further supported by the affidavit of Jeff A. Eulberg, Decedent's friend and the attorney who assisted Decedent with the planning of her estate, including the preparation of her Last Will and Testament and the TODDs. Attorney Eulberg's affidavit provides in pertinent part: 3. She contacted me to help her with distributing her property at her death through her will and using transfer-on-death-deeds. She told me that she wanted to give her friends some property. She told me that she intended to sell her mobile home park and use that money to pay off what she owed on her other property. Unfortunately her cancer progressed too rapidly. She died before she could sell the mobile home park. 4. By August 24, 2011 she believed that she didn't have much time left. On August 24th, 2011 I prepared her will and some remaining transfer-on-death deeds. Her will and transfer-on-death deeds were read to her. I also explained the will and transfer-on-death deeds to her. The documents were then executed, witnessed and notarized as required by law. The will which I prepared and she signed is the same will admitted into probate in this case. … 5. At no time did she tell me that she did not want all of her debts paid. The will I prepared, which she signed, complied with her wishes. Affidavit of Jeff A. Eulberg, R. 295. ¶16 Decedent's Last Will and Testament contains an explicit provision for payment of debts, including those secured by mortgages on real property, which she intended cover the notes secured by the properties transferred to Grantees. Title 58 O.S. 2011 § 461 concerns will provisions for payment of debts, and states: [i]f the testator makes provisions by his will or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provisions or designation, out of the estate thus appropriated, so far as the same is sufficient. Normally, when a decedent's real property secured by mortgage passes to successors, 58 O.S. 2011 § 461 operates in concert with another statutory provision, 46 O.S. 2011 § 5, which provides: [w]hen real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid. When real property subject to a mortgage passes by succession or will, so does responsibility for satisfying the mortgage--pursuant to 46 O.S. 2011 § 5-- unless, in accordance with 58 O.S. 2011 § 461, the testator made specific provisions in the will for payment to be made some other way. ¶17 However, 46 O.S. 2011 § 5 is not applicable in this cause, as the properties conveyed to Grantees by the TODDs did not pass by succession or will. Instead, at issue is the interaction of 58 O.S. 2011 § 461 and the payment-of-debts clause in Decedent's will, with a specific section of the NTPA, 58 O.S. 2011 § 1255(A), which provides: [g]rantee beneficiaries of a transfer-on-death deed take the interest of the record owner in the real estate at the death of the grantor owner, free and clear of any claims or interest under Section 44 of Title 84 of the Oklahoma Statutes as to a person who became the spouse of the grantor subsequent to the execution of the transfer-on-death deed, subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the lifetime of the record owner including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property, provided however, a non-consensual lien against the grantee beneficiary shall not attach to the property until the recording of the affidavit described in Section 1252 of this title. Appellant asserts 58 O.S. 2011 § 1255(A) conflicts with 58 O.S. 2011 § 461 and the intent of Decedent expressed in her Last Will and Testament. 2. The NTPA does not conflict with or defeat Decedent's intent that the debts represented by Appellees' claims be paid by the Estate. ¶18 Pursuant to 58 O.S. 2011 § 1255(A), Grantees took the interest of Decedent in the respective properties at the time of Decedent's death. They took this interest "subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner." Title 58 O.S. 2011 § 1255(A). By the plain terms of the statute, Grantees each took the properties subject to the mortgages attached to them. Those mortgages serve as security for the notes originally executed between Decedent and her lenders, Farm Credit Services and The Margee and Robert W. Minter Living Trust. Title 58 O.S. 2011 § 1255(A) does not, by its own terms, provide that Grantees assumed liability for any of Decedent's underlying debt. Rather, Grantees took the property subject to the security for that debt: the mortgages. ¶19 In Oklahoma, a mortgage does not operate as a conveyance vesting in the mortgagee any estate in realty. First Mustang State Bank v. Garland Bloodworth, Inc., 1991 OK 65, ¶33, 825 P.2d 254; Coursey v. Fairchild, 1967 OK 252, ¶7, 436 P.2d 35. Rather, it creates a lien against the realty in order to secure the payment of a debt. First Mustang State Bank, 1991 OK 65, ¶33; Coursey, 1967 OK 252, ¶7. Generally, no personal obligation rests on a purchaser of mortgaged land to pay mortgage debt. Parlette v. Equitable Farm Mortgage Co., 1933 OK 478, ¶7, 25 P.2d 300; Bailey v. State, 1919 OK 49, ¶4, 179 P. 615.2 ¶20 Where a mortgagor conveys mortgaged land to a grantee who assumes and agrees to pay the mortgage debt, the grantee becomes the principle obligor of the mortgage debt and mortgagor his surety. Stalcup v. Easterly, 1960 OK 39, ¶9, 351 P.2d 735. However, nothing in the record in this cause indicates Grantees assumed or agreed to pay the notes secured by the mortgages, even though they were aware of the notes. Pursuant to 58 O.S. 2011 § 1255(A), therefore, Grantees took title to the properties in question subject to the mortgages encumbering the properties, but assumed no liability for the debt. This result is consistent with 58 O.S. 2011 § 461, and the expressed intent of Decedent's Last Will and Testament. ¶21 The NTPA is a comparatively new piece of legislation, and there is therefore little precedent concerning TODDs. However, conveyance of property by TODD shares important similarities with property held in joint tenancy. As this Court previously noted: [i]t is well-settled law that a joint tenancy, in either real or personal property, "creates a present estate which, absent severance during the life of the joint tenants, assures the surviving tenant absolute ownership of the whole subject matter of the joint tenancy." Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Upon a joint tenant's death, the decedent's interest terminates and the surviving tenant's interest simply continues. Clovis v. Clovis, 1969 OK 170, ¶ 16, 460 P.2d 878, 881. By operation of law, the surviving tenant becomes immediately vested with the property as a whole, and the joint tenancy property is excluded from the decedent's estate. Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Therefore, there is no property interest remaining that a decedent's beneficiary may inherit. See Draughon, 1948 OK 81, ¶ 9, 200 Okla. 198, 191 P.2d at 923. In re Estate of Metz, 2011 OK 26, ¶8, 256 P.3d 45. Though there are obvious differences, the similarities were set out succinctly by the Court of Appeals of Kansas in In re Estate of Roloff, 143 P.3d 406 (Kan. Ct. App. 2006). The court noted: [a] TOD deed has many of the same survivorship characteristics as a joint tenancy deed. These characteristics are as follows: (a) that the record owner's interest automatically transfers to the grantee beneficiary upon the death of the record owner, K.S.A. 59-3501(a) and K.S.A. 59-3504(a); (b) that no other action or procedure is required to transfer full title to the grantee beneficiary, K.S.A. 59-3501(a) and K.S.A. 59-3504; (c) that any attempt by the record owner to revoke or convey the record owner's interest in real estate subject to a TOD deed by the record owner's will is invalid, K.S.A. 59-3503(c); (d) that because title in the real estate vests immediately in the grantee beneficiary upon the death of the record owner under K.S.A. 59-3501(a) and K.S.A. 59-3504(a), the real estate is not included in the record owner's probate estate; and (e) that the transfer of the real estate by a TOD deed is not testamentary in nature under K.S.A. 59-3507, and is not subject to the provisions of the probate code. In re Estate of Roloff , 143 P.3d at 413. ¶22 Given the similarities, cases from other jurisdictions with similar facts are illustrative. In In re Estate of Charles A. Zahn, 305 N.J. Super. 260, 270-71, 702 A.2d 482 (1997), the decedent died testate with instructions in his will that the executor "pay all of [his] just debts and funeral expenses as soon as practicable after [his] death." Prior to his death, the decedent had executed a joint tenancy deed for his residence, which was encumbered by a mortgage. The survivor of the joint tenancy paid the debt secured by the mortgage on the residence to prevent foreclosure and sought exoneration from the estate. The New Jersey Supreme Court found that the "just debts" language was not sufficiently specific to indicate that the decedent intended the estate be liable for the mortgage. The Court noted that if the testator wanted the estate to pay the mortgage, he or she could have accomplished this by including specific language such as "free and clear." The Court cited A Treatise on Equity Jurisprudence, which states that "[w]here a mortgagor conveys by deed [and is] absolutely silent with respect to an outstanding mortgage, the grantee, of course, takes the land encumbered by the mortgage." In re Estate of Charles A. Zahn, 305 N.J. Super. at 271 (quoting 4 John Norton Pomeroy, A Treatise on Equity Jurisprudence, § 1205, at 613 (5th ed.1941)). ¶23 Similarly, the California Court of Appeals found that, where the deceased held a property in joint tenancy with another, his direction in his will to pay his "just debts" was not sufficient to indicate the intention that the mortgage be a liability of the estate. In re Estate of Roy P. Dolley, 265 Cal. App. 2d 63 (1968). The court noted that "[f]oreign authority exists to the effect that a surviving joint tenant does not qualify for exoneration of a mortgage on joint tenancy property unless there is language in the decedent's will clearly expressing an intention that the mortgage debt be paid." In re Estate of Roy P. Dolley, 265 Cal. App. 2d at 72. ¶24 These cases indicate that where a will clearly and unambiguously provides for the payment of a debt secured by mortgage, such direction should be followed, despite the transfer of property ownership occurring outside of probate. Personal Representative points to the above cases as support for the contention that the debt is not a liability of the estate, arguing that Decedent's will "did not contain express language to require the payment of the mortgages transferred under the Non-Testamentary Transfer on Death Deed statutes." However, this case is distinguishable factually from the cases discussed above, as Decedent's will did not merely refer to "just debts" and, in fact, did specify the payment of debts secured by mortgages: "I hereby direct that all my debts . . . be paid by my executor, except that the payment of any debt secured by mortgage or pledge or real or personal property may be postponed until payable by its terms." This language specifically addresses debts secured by mortgages and provides unambiguous direction for payment. Thus, these directions should be followed, even if the underlying property subject to the mortgages as security for the debt was transferred outside of probate by TODD.3 B. Appellees Possess Standing to Assert Their Claims ¶25 Having determined that the trial court correctly ruled the debts set out in Appellees' creditors' claims are liabilities of the Estate, this Court must now consider whether Appellees possessed standing to assert those claims.4 The Court of Civil Appeals determined Grantees did not have standing, holding: [w]e interpret the will's language to mean that satisfaction of "any debts secured by mortgage or pledge of real or personal property" need not be immediate. Rather, satisfication "may be postponed until payable by its terms." This means a secured debt may be collected by a creditor or mortgage holder entitled to collect that debt from the Estate using any remedies available to that creditor by law or under the terms of that secured debt. However, those remedies are not available to Grantees because they are neither parties to the debt, creditors of the Estate, nor proper parties to enforce payment of the debt secured by their real property which had been formerly owned by Estate. Grantees may not use the terms of Decedent's will to compel Estate to act to satisfy the debt on their properties. That right belongs to the actual owners of those secured debts, who alone have standing to present a creditor's claim. Opinion of the Court of Civil Appeals, ¶29. The Court of Civil appeals further concluded that even the actual creditors of the estate, such as FCS, must obtain a deficiency judgment post-foreclosure first, and only then submit a claim to the estate for payment. Opinion of the Court of Civil Appeals, ¶30. We disagree. 1. FCS was not required to foreclose and only afterwards file a creditor's claim limited to the amount of any deficiency judgment ¶26 Concerning the timeliness and nature of FCS' claim, 58 O.S. 2011 § 461 requires that debt-related provisions in wills be followed, and that payment be made according to the specifications of those provisions. Decedent's will provides that "payment of any debts secured by real or personal property may be postponed until payable by its terms." This language should not be construed to require the creditor to first foreclose, apply the proceeds of the sale to the debt, and then obtain a deficiency judgment to present to the estate. The will calls for payment of the debt on its terms, not for reimbursement post-default. As the dissent in the Court of Civil Appeals Opinion correctly notes, it is clear from this language that Decedent not only intended the estate to pay the debts represented by the notes to FCS and the Trust, but also intended to give the estate some flexibility in doing so, either in continued installments or as one lump sum. Forcing foreclosure followed by a deficiency judgment would frustrate the entire purpose of Decedent's combined use of the TODDs along with the debt payment provision of her will: for the Grantees to take the property with the debt paid by the Estate. ¶27 Further, nothing in the relevant statutes or this Court's prior jurisprudence requires the holder of a note secured by mortgage on real property to initiate foreclosure proceedings prior to filing a claim against the estate for underlying debt. Title 58 O.S. 2011 § 333 (emphasis added) provides: [a]ll claims arising upon contracts entered into prior to the decedent's death, whether the same be due, not due or contingent, must be presented on or before the presentment date as provided in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the personal representative and the judge of the district court, as duly noted on the claim, that the claimant had no notice by reason of being out of the state and that a copy of the notice to creditors was not mailed to said claimant, the claim may be presented at any time before a final decree of distribution is entered; provided, further, that nothing in this section, nor in this chapter contained, shall be construed to prohibit the right or limit the time of foreclosure of mortgages upon real property of decedents, but every such mortgage may be foreclosed within the time and in the mode prescribed in civil procedure, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure shall be a claim against the estate, unless such debt was presented as required by this code. The emphasized portion of 58 O.S. 2011 § 333 unambiguously creates a simple rule: filing a creditor's claim against the estate is not a condition precedent in order for a creditor secured by a mortgage on real property to foreclose. However, 58 O.S. 2011 § 333 does not allow a creditor to pursue a deficiency judgment after foreclosure, unless a claim was presented to the estate pursuant to the probate code. ¶28 This Court explained the relevant portion of 58 O.S. 2011 § 333 in Cahill v. Kilgore, 1960 OK 88, ¶10, 350 P.2d 928: [u]nder the above quoted exception, plaintiff clearly had the right to foreclose the mortgage in controversy without first presenting to defendant in her representative capacity a claim based upon the note securing the mortgage or the mortgage. In her brief plaintiff makes this statement and concession: 'There is no question here about a deficiency judgment in this case. It could only arise if presented to the County Court after the foreclosure. Under the above proviso we had the right to proceed by foreclosure without presenting claim to administrator. We waived that right and chose to rely on our mortgage.' In view of the fact that an action to foreclose a mortgage may be maintained without seeking a personal judgment (Irwin v. Sands, Okl., 265 P.2d 1097) and in view of the further fact that plaintiff is not here asserting the right to recover a deficiency from Dick Cahill's estate, we are of the opinion that defendant's first contention is not well taken.5 While FCS was certainly permitted by 58 O.S. 2011 § 333 to initiate foreclosure proceedings without presenting a claim based upon its note to Decedent's estate, it was not required to do so. Instead, FCS chose to seek payment of the due note6 pursuant to its terms by filing a creditor's claim against Decedent's estate. The right of FCS to present a creditor's claim prior to foreclosing is therefore established. The only question remaining is that of Grantees' standing. 2. Grantees possessed standing to assert their claims before the trial court ¶29 Standing refers to a person's legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512; Hendrick v. Walters, 1993 OK 162, ¶4, 865 P.2d 1232. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact--i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. J.P. Morgan Chase Bank Nat. Ass'n v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62; Fent, 2007 OK 27, ¶7. The Standing doctrine should never be applied mechanistically to bar from the courthouse those who are truly aggrieved. Application of Southwestern Bell Telephone, L.P., 2007 OK 55, ¶5, 164 P.3d 150. ¶30 Grantees both possess interests in real property encumbered by mortgages. Those mortgages secure debt that is a liability of Decedent's Estate. Failure of the Estate to pay that debt will subject Grantees to foreclosure of their respective properties, an action for which has already been filed concerning Grantee Cornish's property. The injury to Grantees if the Estate's liability for the debt is not recognized is concrete, not conjectural. Grantees' injury is a direct result of the Personal Representative's denial of their claims, and is capable of being redressed by the court's decision that the debts secured by their properties must be paid by Decedent's estate. This Court has also stated that a litigant must have a personal stake in the outcome. Hendrick v. Walters, 1993 OK 162, ¶5, 865 P.2d 1232; Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶8, 639 P.2d 1233. Grantees possess such a personal stake: if the debt is not recognized as that of the Estate, they must pay it themselves or lose their property. ¶31 The claim of Grantee Cornish specifically states it was filed to protect his right to be equitably subrogated and potentially recover against the estate because of the threat of foreclosure on his property arising directly from the Estate's prior refusal to recognize its obligation to pay the note. Claim of Clifford Earl Cornish, R. 79. Likewise, the claim of Grantee Lewis was made to protect his ownership of his property by obtaining confirmation from the court of the estate's obligation to pay the note secured by mortgage on his property. Proof of Claim, R. 76. ¶32 The doctrine of equitable subrogation is a creature of equity intended to achieve the natural justice of placing the burden where it ought to rest. In re Estate of MacFarline, 2000 OK 87, ¶31, 14 P.3d 551; Republic Underwriters Ins. Co. v. Fire Ins. Exchange, 1982 OK 67, ¶6, 655 P.2d 544, 547. It is unlike a fixed rule of law; instead, equitable subrogation is pliable and capable of being molded to attain justice to compel the ultimate discharge of a debt or obligation by the party who in good conscience ought to pay it. In re Estate of MacFarline, 2000 OK 87, ¶31; Republic Underwriters Ins. Co., 1982 OK 67, ¶6. Grantees sought legal recognition during the probate process of the Estate's liability for notes secured by mortgages on their real property, in accordance with Decedent's intent. Given the circumstances of this case, it is the opinion of this Court that they had standing to do so. CONCLUSION ¶33 The emphasis of the entire probate process is to discern and effectuate a decedent's dispositive intentions. Matter of Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; Miller v. First Nat. Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75. It was Decedent's intent that her debts secured by mortgage or pledge of real or personal property be paid, including the debts secured by the properties transferred to Grantees via TODDs. The trial court properly determined that Decedent's estate is liable for the debts secured by the mortgages on Grantees' real property. The trial court's decision was within its probate jurisdiction and did not conflict with the provisions of the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258. Appellees possessed standing to assert their claims and FCS' claim was not premature. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COLBERT, and GURICH, JJ., concur. TAYLOR, J., concurs in result. FOOTNOTES 1 See Title 15 O.S. 2011 § 158 ("Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together."). This Court's interpretation of 15 O.S. 2011 § 158 also allows for situations in which the contracts were not executed at substantially the same time and/or do not reference each other. In Pauly v. Pauly, this Court construed together a deed to real estate and an agreement regarding the reservation of oil and gas rights, stating: Where several instruments are made a part of one transaction, they will be read together, and each will be construed with reference to the other. This is true, although the instruments do not in terms refer to each other. So if two or more agreements are executed at different times as parts of the same transaction they will be taken and construed together. 1946 OK 336, ¶16, 176 P.2d 491 (quoting 17 C.J.S., Contracts, § 298) (emphasis added). 2 This cause concerns liability for notes secured by mortgaged real property after the real property has been transferred, and is therefore distinct from situations where the note itself has changed hands. Assignment of the note itself necessarily carries with it assignment of the mortgage, and assignment of the mortgage without the note is a nullity. CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 2012 OK 22, ¶¶7-8, 278 P.3d 586; BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶10, 256 P.3d 1014. 3 With regard to Appellant's point of error concerning jurisdiction: the trial court was within its probate jurisdiction to consider Appellees' claims, regardless of the nontestamentary status of TODDs. Appellees' claims concern Decedent's Last Will and Testament and whether it requires Decedent's Estate to pay certain of Decedent's debts. Such claims are squarely within the probate jurisdiction of the trial court. 58 O.S. 2011 § 1. 4 Standing, very much like jurisdiction, must be inquired into sua sponte. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512. The Court of Civil Appeals found the issue of Appellees' standing to be dispositive. An analysis of Appellees' standing by this Court is warranted. 5 The Court in Cahill examined 58 O.S. 1951 § 333, a prior incarnation of the statute. The operative language, however, remains fundamentally unchanged. 6 A contingent claim and subsequent suit based upon a note not yet due is also permitted. In Anderson v. Merriott, 1976 OK 74, ¶8, 550 P.2d 1320, this Court explained: [58 O.S. § 339] recognizes an unmatured debt is entitled to the same protection and remedies as one which is due before the death of the debtor. A claim against the estate of a deceased person for an unmatured debt is sufficient if it fully advises the administrator the nature and amount of the demand and sets forth the particulars of such claim. If the claim is properly presented and is rejected, the holder thereof may bring suit thereon in the proper court. Commercial Inv. Trust v. Harsha, 116 Okl. 140, 243 P. 955 (1926). Also see In re Travis' Estate, 186 Okl. 223, 97 P.2d 50 (1939).

cb55c380-9901-4d32-a50c-7e74d1b0dd63

Reynolds v. Fallin

oklahoma

Oklahoma Supreme Court

REYNOLDS v. FALLIN2016 OK 38Case Number: 114481Decided: 03/29/2016IN THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MICHAEL D. REYNOLDS, a Resident Taxpayer of the State of Oklahoma, and for the Benefit of the other millions of Oklahoma Taxpayers and non-resident Taxpayers, Plaintiff/Appellant v. 1. MARY FALLIN, Governor of the State of Oklahoma and the Governor's Office; 2. KEN MILLER, Treasurer of the State of Oklahoma and of the State Treasurer's Office; and custodian of the State's Funds one being the General Revenue Fund; 3. PRESTON DOERFLINGER, State Director of the Office of Management and Enterprise Services; 4. JOHN DOE and/or MARY DOE, Attorneys for State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the General appropriation Bills and/or each of their Sections of the Bills are constitutional and/or lawful, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE THOMAS E. PRINCE DISTRICT JUDGE ¶0 Appellant sued various state officials for their actions concerning three alleged unconstitutional general appropriation bills. The state moved to dismiss the case which was granted by the district court. Appellant appealed. We affirm the judgment of the district court granting Appellees' motion to dismiss. AFFIRMED Jerry R. Fent and Ted Pool, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Jared B. Haines, Asst. Solicitor General and Mithun S. Mansinghani, Deputy Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Defendants/Appellees. COMBS, V.C.J.: PROCEDURAL HISTORY ¶1 At issue here is the constitutionality of various provisions of three general appropriation bills enacted in 2012 through 2014. On July 29, 2015, the Appellant (Reynolds) filed an amended petition1 presenting 18 causes of action concerning SB 1975 (2012 Okla. Sess. Laws c. 311), HB 2301 (2013 Okla. Sess. Laws c. 313), and SB 2127 (2014 Okla. Sess. Laws c. 420). Reynolds asserts these three general appropriation bills contain substantive legislation in violation of Okla. Const. art. 5, § 56 and some sections do not specify the object for the appropriation in violation of Okla. Const. art. 5, § 55. He also asserts these bills violate the balanced budget provisions of Okla. Const. art. 10, § 23 because some of their sections become effective on dates other than July 1, the beginning of the fiscal year.2 In addition, he claimed several sections of the bills are constitutionally invalid because they appropriate money from prior years or multi-years in violation of Okla. Const. art. 10, § 23. ¶2 Reynolds sued the Defendants/Appellees, Mary Fallin, Governor of the State of Oklahoma; Ken Miller, Treasurer of the State of Oklahoma; Preston Doerflinger, State Director of the Office of Management and Enterprise Services (Appellees) and various unnamed state attorneys for their alleged involvement with the three general appropriation bills.3 On August 18, 2015, Appellees filed a motion to dismiss Reynolds' amended petition for failure to state any claims for which relief may be granted. In Reynolds' response he did not specifically refute the argument and authorities presented in this (second) motion to dismiss.4 He instead presented a new theory that all three general appropriation bills were somehow unconstitutional because the Attorney General of Oklahoma had previously determined that one section of SB 2127 (2014 Okla. Sess. Laws c. 420, § 144) contained substantive language5 ; this section, however, was not challenged in the amended petition and consisted of language different from that challenged. On the same day that Reynolds filed his response to the motion to dismiss, August 28, 2015, he filed a motion for summary judgment which mirrored his response. ¶3 A hearing was held on September 25, 2015, concerning the motion to dismiss and Reynolds' motion for summary judgment. The journal entry of judgment, filed November 4, 2015, held the challenged transfers from revolving funds were not substantive provisions in violation of Okla. Const. art. 5, § 56. The court also held Reynolds' other causes of action did not state claims upon which relief may be granted for the reasons stated in Appellees' motion to dismiss. The district court granted Appellees' motion to dismiss the amended petition and denied Reynolds' motion for summary judgment. ¶4 Reynolds filed a petition in error on November 30, 2015, appealing the district court's judgment denying his motion for summary judgment and granting Appellees' motion to dismiss the amended petition. This Court retained the appeal on December 22, 2015, and made it a companion to the appeal filed under Case No. 114,482.6 This appeal is filed under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2013, Ch. 15, App. 1, as an accelerated appeal. There has been no briefing ordered and therefore our review will be confined by the issues raised on appeal in the petition in error. Reynolds' motion to set this matter for oral argument is denied. STANDARD OF REVIEW ¶5 Our review of a trial court's dismissal for failure to state a claim upon which relief can be granted involves a de novo consideration of whether the petition is legally sufficient. Indiana Nat. Bank v. State Dept. of Human Services, 1994 OK 98, ¶2, 880 P.2d 371. The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204. A petition can generally be dismissed only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory. Id. ¶6 Except where prohibited by the Constitution, the Legislature has the right and the responsibility to declare the fiscal policy of Oklahoma. Calvey v. Daxon, 2000 OK 17, ¶21, 997 P.2d 164.7 There is a strong presumption which favors the constitutionality of legislative acts. Fent v. Contingency Review Bd., 2007 OK 27, ¶22, 163 P.3d 512; TXO Production Corp. v. Oklahoma Corp. Com'n., 1992 OK 39, ¶7, 829 P.2d 964; Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶5, 730 P.2d 510. When a legislative enactment is attacked we will indulge every reasonable intendment in applying and interpreting the same in light of the Constitution. Edwards v. Childers, 1924 OK 652, ¶27, 228 P. 472. A party challenging the constitutionality of legislation has a heavy burden of showing its infirmity by persuasive argument and analysis with authority. Fent, 2007 OK 27 at ¶22. If there are two possible interpretations, one of which would hold the enacted legislation unconstitutional, then this Court must apply the interpretation which renders it constitutional. Calvey v. Daxon, 2000 OK 17, ¶24, 997 P.2d 164. Unless a law is shown to be fraught with constitutional infirmities beyond a reasonable doubt, we are bound to accept an interpretation that avoids constitutional doubt as to its validity. Calvey, 2000 OK 17 at ¶24. The statute must be "clearly, palpably and plainly inconsistent with the constitution." Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶11, 679 P.2d 1296. ANALYSIS I. The Challenged Transfers From Revolving Funds, Transfer Authorizations and Expenditure Authorizations Did Not Violate Okla. Const. Art. 5, §§ 55 and 56. ¶7 Reynolds' principle argument is that three types of sections in the challenged general appropriation bills are substantive laws and do not constitute appropriations. He identifies the alleged offending sections in his issues to be raised on appeal and asserts they violate Okla. Const. art. 5, §§ 55 and 56. These sections provide: No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum. Okla. Const. art. 5, § 55 (emphasis added). The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject. Okla. Const. art. 5, § 56 (emphasis added). A. Transfers from a Fund to the Special Cash Fund: Amended Petition Causes of Action 1, 6, and 12. ¶8 The first category of sections Reynolds challenges concern "TRANSFER" sections of the general appropriation bills that transfer money from one fund to the Special Cash Fund of the State Treasury. These are found in causes of action 1 (2014 Okla. Sess. Laws c. 420, §§ 145-158 (SB 2127)), 6 (2013 Okla. Sess. Laws c. 313, §§ 132-137 (HB 2301)), and 12 (2012 Okla. Sess. Laws c. 311, §§ 61, 68, 75, 148, 149, 152, and 157 (SB 1975))8 . For example: SECTION 145. TRANSFER The Director of the Office of Management and Enterprise Services shall transfer the sum of Two Million Dollars ($2,000,000.00) from the Oklahoma Center for the Advancement of Science and Technology Research Report Revolving Fund (200 Fund) to the Special Cash Fund of the State Treasury. 2014 Okla. Sess. Laws c. 420, § 145 (SB 2127). ¶9 Each of these sections transfer money from a fund to the Special Cash Fund9 of the State Treasury. Reynolds argues these sections cannot be appropriations because they do not state the object or purpose for their use as required by Okla. Const. art. 5, § 55 and therefore they are substantive law. He asserts Okla. Const. art. 5, § 56 provides that a general appropriation bill may only contain appropriations not substantive law and therefore these bills are unconstitutional. ¶10 Appellees assert the Special Cash Fund is only a pass-through account and each general appropriation bill contains other sections which provide for appropriations from the Special Cash Fund to other specific funds for various purposes. Appellees provide examples of such sections: §§ 25, 28, 34, 48, 65, 79, 83, 92, 96, 104, 133-36, 142-43, 145-48 of SB 2127; 2014 Okla. Sess. Laws. c. 420. An example of one of these sections is as follows: SECTION 34. There is hereby appropriated to the Physician Manpower Training Commission from any monies not otherwise appropriated from the Special Cash Fund of the State Treasury the sum of Four Hundred Thousand Dollars ($400,000.00) or so much thereof as may be necessary to perform the duties imposed upon the Physician Manpower Training Commission by law. 2014 Okla. Sess. Laws c. 420, § 34 (SB 2127). According to Appellees' motion to dismiss, these sections appropriate approximately $300,000,000 from the Special Cash Fund to various purposes. Whereas, they note, §§ 149-62, 164-71 transfer approximately $281,500,000 from various funds to the Special Cash Fund. Appellees assert when you harmonize the sections transferring money to the Special Cash Fund with the sections appropriating money from the Special Cash Fund to other funds with stated purposes it accomplishes an appropriation and does not constitute substantive law. Appellees quote from our opinion in Rogers v. Quicktrip Corp., wherein we held "different provisions of a statute must be construed together to effect a harmonious whole and give intelligent effect to each." 2010 OK 3, ¶11, 230 P.3d 853. ¶11 In his amended petition, Reynolds cites State ex rel. Parker v. Youngquist, 11 N.W.2d 84 (S.D. 1943). The Parker case has no precedential value in Oklahoma. It is merely persuasive at best. Further, its facts differ from the present case because in Parker there was no indication the law in question contained other provisions appropriating money for specific purposes. Reynolds acknowledges other sections of the three general appropriation bills make appropriations from the Special Cash Fund to other funds but he asserts that does not make the transfer sections appropriations. Reynolds also asserts that each section of the general appropriation bill must stand or fall on its own. We disagree. ¶12 As Appellees have noted, the Special Cash Fund is a pass-through account. In drafting these three general appropriation bills it is clear the Legislature's intent was to conveniently make tranfers to the Special Cash Fund and then appropriate money in the Special Cash Fund to other funds. In effect, it is one continuous transaction. This was in lieu of having multiple transactions from one fund to many other individual funds. We hold that the effect of the combined transfer sections with the appropriation sections created an appropriation when, as here, they were all accomplished in a single bill. This interpretation harmonizes the provisions of each general appropriation bill. We therefore hold the transfer sections of the three general appropriation bills do not violate Okla. Const. art. 5, § 55 by failing to state a purpose within those sections. Likewise, Okla. Const. art. 5, § 56 is not violated because the contested sections constitute appropriations. ¶13 Within this same portion of the amended petition Reynolds quotes Okla. Const. art. 10, § 19, and cites to an opinion of this Court wherein he alleges we held "a tax revenue being devoted (transferred) to another purpose by a legislative statute . . . [is] void."10 He makes no effort to show how Okla. Const. art. 10, § 19 applies to the facts of this case. Nor does he provide facts or even an assertion that the general appropriation bills contain funds which receive a levied tax for a specific purpose. The quotation of small portions of statutory provisions and Blacks' Law Dictionary definitions with unsupported conclusions appears to be a common theme in many parts of his amended petition. In Fent v. Contingency Review Bd., we held the absence of advocacy alters the nature of the appellate process by imposing upon the court the burden of researching and testing unsupported legal propositions. 2007 OK 27, ¶23, 163 P.3d 512. The Appellate courts will not be forced to become an active advocate for the party whose failure to brief or argue has produced a total intellectual vacuum. Fent, 2007 OK 27 at ¶23. B. Transfer Authorizations and Expenditure Authorizations: Amended Petition Causes of Action 2, 7, and 13 & 3, 8, and 14, respectively. ¶14 Reynolds also challenges sections of the three general appropriation bills that provide authorization to transfer money from one fund to another and those that provide authorization to expend money. The sections transferring money from one fund to another are found in causes of action 2 (2014 Okla. Sess. Laws c. 420, §§ 118, 119, 120, 121, 125, and 126 (SB 2127)), 7 (2013 Okla. Sess. Laws c. 313, §§ 113, 115, 116, 117, 118, 122, and 123 (HB 2301)), and 13 (2012 Okla. Sess. Laws c. 311, §§ 132, 134, 135, 136, and 139 (SB 1975)). The sections providing expenditure authorizations are found in causes of action 3 (2014 Okla. Sess. Laws c. 420, §§ 3, 25, 26, 27, 59, 72, 117, 123, and 130 (SB 2127)), 8 (2013 Okla. Sess. Laws c. 313, §§ 3, 26, 27, 58, 65, and 120 (HB 2301)), and 14 (2012 Okla. Sess. Laws c. 311, §§ 3, 33, 34, 46, 74, 82, 128, and 140 (SB 1975). Examples of these authorizations are as follows: Transfer Authorization. SECTION 118. For the fiscal year ending June 30, 2015, the District Attorneys Council is authorized to transfer an amount not to exceed Nine Hundred Seventy-five Thousand Dollars ($975,000.00), on an as-needed basis, from the Crime Victims Compensation Revolving Fund created by Section 142.17 of Title 21 of the Oklahoma Statutes to the Sexual Assault Examination Fund, created by Section 142.20 of Title 21 of the Oklahoma Statutes. 2014 Okla. Sess. Laws c. 420, § 118 (SB 2127). Expenditure Authorization. SECTION 3. The State Board of Education is hereby authorized to expend during the fiscal year ending June 30, 2015, from the Common Education Technology Revolving Fund of the State Treasury, the sum of Forty-seven Million Three Hundred Seventy-two Thousand Two Hundred Ninety-nine Dollars ($47,372,299.00) or so much thereof as may be necessary for the financial support of public schools. 2014 Okla. Sess. Laws c. 420, § 3 (SB 2127). Reynolds contends none of these sections contain the word "appropriate" and therefore these sections are substantive law and their placement in a general appropriation bill violates Okla. Const. art. 5, §§ 55 and 56. His argument is based on Okla. Const. art. 5, § 56 which requires a general appropriation bill to contain nothing but appropriations and additionally, Okla. Const. art. 5, § 55 which provides no money shall ever be paid out of the treasury except in pursuance of an appropriation by law. ¶15 The Appellees assert this Court has already determined no special words are necessary for a provision to operate as an appropriation. Fent v. State ex rel. Office of State Finance, 2008 OK 2, 184 P.3d 467. In Fent, we held the subject appropriation bill was drafted using terms "transferring" and "allocating" but unmistakably appropriated nearly $135,000,000. Fent, 2008 OK 2 at ¶17. The Appellees also quote a definition of an appropriation made by this Court in Smith ex rel. State v. State Bd. Of Equalization, 1981 OK 57, ¶5, 630 P.2d 1264. In Smith, we determined an "[a]ppropriation, as contrasted with accruing, is the designation or authorization of the expenditure of public moneys and stipulation of the amount, manner and purpose for a distinct use or for the payment of a particular demand." Smith 1981 OK 57 at ¶5. The challenged sections appear to fall within our definition of appropriation. They all authorize the expenditure of public monies in a specific amount for a specific purpose. This is done by either moving money from one fund to a receiving fund wherein that money is authorized to be used for the purposes allowed by law for the receiving fund or by giving express authorization for an entity to expend money within a fund for the purposes allowed by law. The Oklahoma Constitution provides the amount of the appropriation must be specific, which it is in all these sections; "it shall not be sufficient for such law to refer to any other law to fix such sum." Okla. Const. art. 5, § 55. This section of the Oklahoma Constitution, however, only requires the appropriation bill to specify the "object" to which it is applied. In Fent we held that the special appropriation bill there was consistent with the provisions of Okla. Const. art. 5, § 55, even though reference to other statutes is necessary to determine "the objects or purposes of some of the appropriations." Fent, 2008 OK 2 at ¶18. The objects or purposes to which the funds in the present case are to be applied are ascertainable either within the appropriation bill itself or other statutes. We therefore do not find the inclusion of these transfer and expenditure sections in the general appropriation bills violate Okla. Const. art. 5, §§ 55 or 56. They all constitute appropriations under our definition in Smith. II. Use Of Effective Dates Other Than July 1, The Commencement Of The Fiscal Year, Does Not Violate Okla. Const. Art. 10, § 23. ¶16 Reynolds' next issue raised on appeal concern his causes of action 4, 9 and 15 of his amended petition. These causes of action challenge the following sections of the three general appropriation bills: cause of action 4 (2014 Okla. Sess. Laws c. 420, §§ 171 and 173 (SB 2127)), 9 (2013 Okla. Sess. Laws c. 313, §§ 137 and 144 (HB 2301)), and 15 (2012 Okla. Sess. Laws c. 311, §§ 157 and 159 (SB 1975)). Each of these general appropriation bills contain two effective date sections.11 All but one section of each bill takes effect on July 1, the beginning of the fiscal year; and one section in each bill takes effect on July 15. The sections that take effect on July 15 all transfer money from the Cash-flow Reserve Fund to the Special Cash Fund. For example, SB 1975, provides: SECTION 157. TRANSFER The Director of State Finance shall transfer the sum of One Hundred Twenty Million Dollars ($120,000,000.00) from the Cash-flow Reserve Fund of the Office of State Finance to the Special Cash Fund of the State Treasury. SECTION 159. Section 157 shall become effective July 15, 2012. 2012 Okla. Sess. Laws c. 311, §§ 157 and 159 (SB 1975). Reynolds asserts the fiscal year begins on July 1 and not having these monies available and part of the "State's Balanced Budget" until July 15 violates Okla. Const. art. 10, § 23. ¶17 First, Reynolds asserts Okla. Const. art. 5, § 58 requires a July 1 effective date. He selectively quotes the following from this section "[n]o act shall take effect until ninety days after the adjournment of the session at which it was passed, except . . . a general appropriation bill, . . ." The full text of this section is as follows: No act shall take effect until ninety days after the adjournment of the session at which it was passed, except enactments for carrying into effect provisions relating to the initiative and referendum, or a general appropriation bill, unless, in case of emergency, to be expressed in the act, the Legislature, by a vote of two-thirds of all members elected to each House, so directs. An emergency measure shall include only such measures as are immediately necessary for the preservation of the public peace, health, or safety, and shall not include the granting of franchises or license to a corporation or individual, to extend longer than one year, nor provision for the purchase or sale of real estate, nor the renting or encumbrance of real property for a longer term than one year. Emergency measures may be vetoed by the Governor, but such measures so vetoed may be passed by a three-fourths vote of each House, to be duly entered on the journal. Okla. Const. art. 5, § 58. We interpret this section to mean that no bill shall take effect prior to ninety days after the adjournment of the session unless it contains an emergency clause passed by a two-thirds vote of all members of the Legislature. This section specifically excludes the emergency clause requirement for enactments for carrying into effect provisions relating to the initiative and referendum and general appropriation bills. Therefore, general appropriation bills may become effective prior to the ninety-day period without the need for a two-thirds vote of the Legislature on an emergency clause. This section does not require any sections of a general appropriation bill to have a specific effective date. ¶18 Next Reynolds asserts if not all the money is available on July 1, the commencement of the fiscal year, then Okla. Const. art. 10, § 23 (9)'s "one-twelve (12) rule" will be violated. He quotes the following portion of paragraph (9): 9. . . . Revenues deposited in the State Treasury to the credit of the General Revenue Fund or of any special fund (which derives its revenue in whole or in part from state taxes or fees) shall, . . . be allocated monthly to each department, institution, board, commission or special appropriation on a percentage basis, in that ratio that the total appropriation for such department, institution, board, commission or special appropriation from each fund for that fiscal year bears to the total of all appropriations from each fund for that fiscal year, and no warrant shall be issued in excess of said allocation. Okla. Const. art. 10, § 23 (9). Reynolds bases this so-called "one-twelve (12) rule" on the section's reference to monthly allocations. ¶19 Appellees argue the cited provisions of the Oklahoma Constitution do not require all money for the next fiscal year to be on hand the first day of a fiscal year (July 1). In contrast, the monthly allocation provision in Okla. Const. art. 10, § 23 (9), they assert, exists because all of the money for an appropriation does not need to be and for practical purposes cannot be available on July 1, the first day of the fiscal year. The balanced budget amendment found in Okla. Const. art. 10, § 23 creates a process by which the Board of Equalization certifies a forecast of expected revenues for the next fiscal year. The amounts certified restrict what is available for the Legislature to appropriate. Appropriations made in excess of the certification shall be null and void. Okla. Const. art. 10, § 23 (2). Appellees assert actual collected revenues can, however, be below the forecast and this will cause a reduction in spending. The monthly allocation provision allows each month to reflect any revenue shortfalls occurring up to that point. These provisions do not require all revenue and other funds be available at the beginning of the fiscal year. Appellees contend Reynolds' claims to the contrary lack any merit. We agree. Based on Reynolds' allegations and constitutional authority we find no requirement for a July 1, the commencement of the fiscal year, effective date. III. The Appropriation Of Funds Not Otherwise Appropriated In A Prior Fiscal Year And The Reappropriation Of Such Funds Within Two And One-Half Years Does Not Violate Okla. Const. art. 5, § 55 or art. 10, § 23. ¶20 Reynolds' last assertion in his issues to be raised on appeal states: "[p]rior or multi fiscal year appropriations in a current fiscal year Bill violation [sic] of Okla. Const., Art. 10, Sec. 23 et al." Unlike his other issues raised, he does not identify any specific causes of action in his amended petition concerning this issue. However, searching through his amended petition we find two causes of action that appear to fit the issue raised. These are causes of action 10 and 11. We will address cause of action 11 first. ¶21 In cause of action 11, Reynolds challenges the appropriations made in §§138-141 of HB 2301; 2013 Okla. Sess. Laws c. 313. These appropriations which were all made in 2013 come from "monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2012."12 Reynolds asserts "[t]his is a prior fiscal year and thus unconstitutional and unlawful." ¶22 Reynolds alleges these four sections are unlawful because they are trying to take effect on June 30, 2012, which would occur prior to the State Board of Equalization's certification.13 He asserts Okla. Const. art. 10, § 23 provides that legislative appropriations exceeding the Board's certification are null and void. Therefore, he argues, an appropriation made prior to the certification is unconstitutional. He bases his claim on the fact these four sections do not have an effective date. He quotes the following from Okla. Const. art. 5, § 58: "[n]o act shall take effect until ninety days after the adjournment of the session at which it was passed, except . . ., or a general appropriation bill, . . . ." It is unclear exactly how he interprets this section or how it is applicable here. ¶23 As explained earlier in this opinion, Okla. Const. art. 5, § 58 exempts general appropriation bills from needing an emergency clause in order to take effect prior to ninety days after the adjournment of the session. Here there was no effective date for these four sections. Since there is no need for an emergency clause to be on a general appropriation bill, sections without an effective date will become operative on their passage.14 HB 2301 was approved by the Governor on May 20, 2013, and these four sections became effective on that date. This took place well after the State Board of Equalization's certification (December 2012). Therefore, we find no merit in this challenge. ¶24 Next he asserts these four sections are unconstitutional because they attempt to appropriate a prior year's certification. His argument seems to be based on language in Okla. Const. art. 10, § 23 which establishes procedures to ensure there is a balanced annual budget. He also quotes Okla. Const. art. 10, § 1 which provides the fiscal year shall commence on July 1 and from Okla. Const. art. 10, § 2 which provides "[t]he Legislature shall provide by law for an annual tax sufficient, with other resources, to defray the estimate[d] ordinary expenses of the State for each fiscal year." He then concludes "[t]hus, these four SECTIONS are unconstitutional and invalid as an attempted appropriation for a prior year's certification for the fiscal year ending on June 30, 2012." How these quoted provisions of the Oklahoma Constitution support his conclusion is also unclear. ¶25 In contrast to Reynolds' argument, Okla. Const. art. 10, § 23 (2) specifically allows for the appropriation of money not otherwise appropriated. This section states in pertinent part: [P]rovided, however, that the Legislature may at any regular session or special session, called for that purpose, enact laws to provide for additional revenues or a reduction in revenues, other than ad valorem taxes, or transferring the existing revenues or unappropriated cash on hand from one fund to another, or making provisions for appropriating funds not previously appropriated directly by the Legislature. Okla. Const. art. 10, § 23 (2) (emphasis added). The emphasized language in the above quote was added to Okla. Const. art. 10, § 23 (2) in 1985 by State Question 587. This constitutional amendment was drafted by the Legislature in HJR 1005 (1985 Okla. Sess. Laws p. 1672) and was adopted at the election held on April 30, 1985. We have previously held the Legislature is presumed to act within constitutional limitations and hence a legislative construction of the Oklahoma Constitution is highly persuasive especially in instances where the construction is afforded by the framing Legislature who must have been conversant with its intent. State ex rel. Hawkins v. Oklahoma Tax Commission, 1969 OK 118, ¶21, 462 P.2d 536; State ex rel. Kerr v. Grand River Dam. Auth., 1945 OK 9, ¶20, 154 P.2d 946. In 1985, the very year HRJ 1005 was enacted and approved by the people, the Legislature appropriated money that was not otherwise appropriated in a prior fiscal year. One example is as follows: SECTION 219. There is hereby appropriated to the Department of Labor from any monies not otherwise appropriated from the Special Occupational Health and Safety Fund of the State Treasury for the fiscal year ending June 30, 1984, the following amount or so much thereof as may be necessary to perform the duties imposed upon the Department of Labor by law: Personal Services $166,720.00 Other Operating Expenses $ 0.00 Total $166,720.00 1985 Okla. Sess. Laws c. 181, § 219 (SB 62) (emphasis added). There are examples of this occurring in every year since State Question 587's adoption through the year 2014; the year the latest challenged bill was enacted.15 It is clear the framing Legislature as well as every Legislature since its passage has interpreted the language "or making provisions for appropriating funds not previously appropriated directly by the Legislature" to include appropriations of money that were not otherwise appropriated in a prior fiscal year. The provisions of the Oklahoma Constitution quoted by Reynolds do not prohibit these legislative appropriations. We therefore do not find these types of challenged appropriations to be clearly, palpably and plainly inconsistent with the Oklahoma Constitution. See Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶11, 679 P.2d 1296. ¶26 Reynolds also asserts in cause of action 10 of his amended petition that the Legislature unconstitutionally made a multi-year appropriation in a current fiscal year. He claims that § 142 of HB 2301 (2013) attempts to make an unconstitutional "three (3) year retroactive appropriation." Section 142 provides: SECTION 142. REAPPROPRIATION AND REDESIGNATION The amount of Four Hundred Twenty-nine Thousand One Hundred Fifty-two Dollars ($429,152.00) of the original appropriation of One Million Two Hundred Thousand Dollars ($1,200,000.00), appropriated to the Oklahoma House of Representatives by Section 148, Chapter 303, O.S.L. 2011, from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury, for the fiscal year ending June 30, 2010, for the purchase of Oklahoma Statutes and Session Laws pursuant to the provisions of Sections 13 and 14 of Title 75 of the Oklahoma Statutes, is hereby reappropriated and redesignated for the purchase of Oklahoma Statute Supplements and Session Laws pursuant to the provisions of Sections 13 and 14 of Title 75 of the Oklahoma Statutes. If, on the date this act is approved, any of the amount originally appropriated, as adjusted by expenditures, encumbrances and transfers, results in an unencumbered balance less than the reappropriated and redesignated amount, that reappropriated and redesignated amount is reduced to the unencumbered amount. 2013 Okla. Sess. Laws c. 313, § 142 (HB 2301). Reynolds mistakenly believes this section violates the two and one-half year payment restriction found in Okla. Const. art. 5, § 55. This section provides: No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum. Okla. Const. art. 5, § 55 (emphasis added). Part of this section prohibits money being paid from the State Treasury more than two and one-half years after the passage of the act that appropriates the money. The original appropriation here occurred on July 1, 2011, which is the effective date of 2011 Okla. Sess. Laws c. 303, § 148 (HB 2170). This section appropriated $1,200,000 as follows: SECTION 148. There is hereby appropriated to the Oklahoma House of Representatives from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2010, the sum of One Million Two Hundred Thousand Dollars ($1,200,000.00) or so much thereof as may be necessary for the purchase of Oklahoma Statutes and Session Laws pursuant to the provisions of Sections 13 and 14 of Title 75 of the Oklahoma Statutes. 2011 Okla. Sess. Laws c. 303, § 148 (HB 2170) (emphasis added). Like the examples in our previous discussion, this section appropriates money not otherwise appropriated in a prior fiscal year. The reappropriation of over $400,000 of the original $1,200,000 appropriated in § 148, occurred in 2013 Okla. Sess. Laws c. 313, § 142 (HB 2301). HB 2301 (2013) was silent as to an effective date for this reappropriation section (§ 142). As explained earlier in this opinion, it would therefore become effective upon the signature of the Governor or as otherwise provided for in the Oklahoma Constitution if the Governor did not sign the bill. The Governor, however, signed HB 2301 on May 20, 2013, and accordingly § 142 took effect on that date; not November 1, 2013, which, without any authority or rationale, Reynolds asserts was its effective date. Therefore, § 142 provided a reappropriation that was well within the two and one-half year window provided by Okla. Const. art. 5, § 55 (July 1, 2011 - May 20, 2013). ¶27 All we have here is a constitutional appropriation of funds that were reappropriated prior to their lapsing. We therefore find no merit in Reynolds' assertion that this reappropriation violated the Oklahoma Constitution. CONCLUSION ¶28 Having found no merit as to any of Reynolds' assertions of unconstitutionality we must therefore affirm the district court's granting of Appellees' motion to dismiss. AFFIRMED ALL JUSTICES CONCUR FOOTNOTES 1 The district court dismissed Reynolds' petition on July 10, 2015, but granted him leave to file an amended petition, which is the subject of this appeal. Case No. CJ-2015-2685, District Court of Oklahoma County, Oklahoma. See 12 O.S. 2011, § 2012 (G); Kelly v. Abbott, 1989 OK 124, 781 P.2d 1188. 2 Okla. Const. art. 10, § 1. 3 In his issues to be raised on appeal in his petition in error, Reynolds does not raise as error any ruling concerning the alleged malpractice committed by state attorneys and therefore such issues are not a subject of this appeal and will not be addressed. 4 The first motion to dismiss which concerned Reynolds' petition was filed on June 1, 2015. 5 2014 OK AG 7. 6 Robert N. Dani, as a resident beneficiary taxpayer claimant of the State Of Oklahoma Uniform Unclaimed Property Act Trust and for the benefit of all the other 938,021 (more or less) resident and non-resident beneficiary claimants of the Trust, Plaintiff/Appellant, vs. (1) Ken Miller, in his official capacity as Treasurer of the State of Oklahoma and Trustee of the State's Uniform Unclaimed Property Act Trust; and (2) State of Oklahoma; and (3) John Doe and/or Mary Doe, Attorneys for the State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the Uniform Unclaimed Property Act Trust was lawful and constitutional in its use of private trust funds for the State of Oklahoma profits, Defendants/Appellees; Case No. CJ-2015-3445, District Court of Oklahoma County, Oklahoma. 7 In Wiseman v. Boren, 1976 OK 2, supp. opinion ¶2, 545 P.2d 753, we determined, "[w]hether all or any part of the surplus funds should be appropriated is within the discretion of the Legislature and not this Court, as the Constitution fixes upon the Legislature the responsibility of making appropriations." (Citations omitted). 8 Cause of action 12 in Reynold's amended petition states that the Oklahoma Constitution invalidates "SEVEN (7) 'TRANSFER' SECTIONS IN THE AMOUNT OF …TO A 'SPECIAL CASH FUND.'" He then lists 8 sections which include section 147. However, section 147 does not indicate any money is being transferred into the Special Cash Fund and may have been included in error. 9 68 O.S. 2011, § 253 (Special Cash Fund). 10 Reynolds argument regarding Okla. Const. art. 10, § 19 in his amended petition (pp. 5-6), consists of the following statement: On June 30, 1942 in the case of a tax revenue being devoted (transferred) to another purpose by a legislative statute this court held the transfer void in State v. Oklahoma Tax Commission, 1942 OK 266, 127 P.2d 1052, Court Syllabus 4 that: "The amendment to section 23, art. 10, of the State Constitution, adopted March 11, 1941, does not abrogate or affect the requirement of section 19, art. 10, of the State Constitution that 'no tax levied and collected for one purpose shall ever be devoted to another purpose.'" (Emphasis supplied) The provision of Okla. Const., Art. 10, Sec. 19, in part, states § 19. Specification of purpose of tax-Devotion to another purpose "Every act enacted by the Legislature, . . . levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose." (Emphasis supplied) 11 It should be noted that over the last twenty-one years there are several other general appropriation bills that contained multiple effective dates. HB 1716 (1995 Okla. Sess. Laws c. 39); SB 160 (1997 Okla. Sess. Laws c. 60); SB 161 (1999 Okla. Sess. Laws c. 75); and HB 2260 (2000 Okla. Sess. Laws c. 121) are all general appropriation bills that contain multiple effective date sections. Most contain an effective date section of August 1. One contains an effective date section of June 1 (SB 160). 12 The four challenged sections of HB 2301 are as follows: SECTION 138. There is hereby appropriated to the State Board of Education from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2012, the sum of Eight Million Four Hundred Forty- seven Thousand Six Hundred Seventy-three Dollars ($8,447,673.00) to be transferred to the Ad Valorem Reimbursement Fund created pursuant to Section 193 of Title 62 of the Oklahoma Statutes for the purpose of reimbursing counties for school districts that claim a loss of revenue due to a tax exemption granted pursuant to the provisions of Section 6B of Article X of the Oklahoma Constitution. SECTION 139. There is hereby appropriated to the State Board of Education from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2012, the sum of Five Million Six Hundred Two Thousand Three Hundred Fifty Dollars ($5,602,350.00) or so much thereof as may be necessary to provide funding for the Certified Employee Health Benefit Allowance. SECTION 140. There is hereby appropriated to the State Board of Education from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2012, the sum of Two Million Eight Hundred Ninety- seven Thousand Six Hundred Fifty Dollars ($2,897,650.00) or so much thereof as may be necessary to provide funding for the Support Personnel Health Benefit Allowance. SECTION 141. There is hereby appropriated to the Oklahoma Department of Emergency Management from any monies not otherwise appropriated from the General Revenue Fund of the State Treasury for the fiscal year ending June 30, 2012, the sum of One Million Two Hundred Thousand Dollars ($1,200,000.00) or so much thereof as may be necessary for maintenance, repair and upgrades to the Oklahoma Mesonet. 13 The State Board of Equalization certification is generally made in December of each year. Okla. Const. art. 10, § 23, in pertinent part provides: 1. Not more than forty-five (45) days or less than thirty-five (35) days prior to the convening of each regular session of the Legislature, the State Board of Equalization shall certify the total amount of revenue which accrued during the last preceding fiscal year to the General Revenue Fund and to each Special Revenue Fund appropriated directly by the Legislature, and shall further certify amounts available for appropriation which shall be based on a determination, in accordance with the procedure hereinafter provided, of the revenues to be received by the state under the laws in effect at the time such determination is made, for the next ensuing fiscal year, showing separately the revenues to accrue to the credit of each such fund of the state appropriated directly by the Legislature. The legislative session convenes on the first Monday of February. Okla. Const. art. 5, § 26. 14 See Berryhill v. City of Sapulpa, 1923 OK 1109, 222 P. 555 (syllabus by the Court): "[t]he ordinary rule is that legislative enactments become operative on their passage, unless there is some express provision of law to the contrary." Ordinarily, a bill without an emergency clause can only become effective no sooner than ninety days after the adjournment of the session pursuant to Okla. Const. art. 5, § 58. However, because a general appropriation bill is not required to have an emergency clause, this ninety-day rule is not applicable to general appropriation bills. If a general appropriation bill does not provide an effective date for a section or sections of the bill, such section or sections are effective upon the bill's passage; meaning, generally when signed by the Governor. See Okla. Const. art. 6, § 11. 15 The following is a sampling of instances occurring from 1985 through 2014 where the Legislature has appropriated money not otherwise appropriated in a prior fiscal year: 1985 Okla. Sess. Laws c. 181, § 219 (SB 62), 1986 Okla. Sess. Laws c. 247, § 3 (HB 1625), 1987 Okla. Sess. Laws c. 203, § 3 (HB 1099), 1988 Okla. Sess. Laws c. 247, § 4 (HB 1552), 1989 Okla. Sess. Laws c. 369, § 2 (HB 1637), 1990 Okla. Sess. Laws c. 187, § 1 (HB 2320), 1991 Okla. Sess. Laws c. 328, § 5 (HB 1248), 1992 Okla. Sess. Laws c. 327, § 17 (HB 1977), 1993 Okla. Sess. Laws c. 117, § 4 (SB 383), 1994 Okla. Sess. Laws c. 187, § 4 (SB 896), 1995 Okla. Sess. Laws c. 39, § 97 (HB 1716), 1996 Okla. Sess. Laws c. 9, § 73 (SB 837), 1997 Okla. Sess. Laws c. 60, § 87 (SB 160), 1998 Okla. Sess. Laws c. 105, § 98 (HB 3050), 1999 Okla. Sess. Laws c. 75, § 15 (SB 161), 2000 Okla. Sess. Laws c. 121, § 18 (HB 2260), 2001 Okla. Sess. Laws c. 6, § 26 (HB 1564), 2002 Okla. Sess. Laws c. 240, § 2 (HB 2439), 2003 Okla. Sess. Laws c. 267, § 3 (HB 1233), 2004 Okla. Sess. Laws c. 12, § 79 (HB 2007), 2005 Okla. Sess. Laws c. 315, § 6 (SB 83), 2006 Okla. Sess. Laws c. 82, § 104 (SB 80XX), 2007 Okla. Sess. Laws c. 317, § 52 (SB 334), 2008 Okla. Sess. Laws c. 92, § 49 (HB 2276), 2009 Okla. Sess. Laws c. 421, § 43 (SB 216), 2010 Okla. Sess. Laws c. 427, § 74 (SB 1561), 2011 Okla. Sess. Laws c. 303, § 51 (HB 2170), 2012 Okla. Sess. Laws c. 311, § 64 (SB 1975), 2013 Okla. Sess. Laws c. 313, § 57 (HB 2301), and 2014 Okla. Sess. Laws c. 420, § 78 (SB 2127).

8af0d392-a563-49f6-ad86-682c2eaad613

Moore v. Warr Acres Nursing Center, LLC

oklahoma

Oklahoma Supreme Court

MOORE v. WARR ACRES NURSING CENTER, LLC.2016 OK 28Case Number: 113098Decided: 03/08/2016As Corrected: March 9, 2016 As Corrected: June 27, 2016THE SUPREME COURT OF THE STATE OF OKLAHOMA DONALD DEWAYNE MOORE, Plaintiff/Appellant,v.WARR ACRES NURSING CENTER, LLC., Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Barbara G. Swinton, Trial Judge ¶0 The Warr Acres Nursing Center terminated the employment of the plaintiff, Donald Dewayne Moore, after he called in sick with influenza. The employee filed a complaint in the District Court of Oklahoma County, alleging that he had been fired in violation of public policy. The trial court granted summary judgment to the employer and we retained the appeal. We hold that terminating a licensed practical nurse for missing work in a nursing center while infected with influenza would violate public policy, but disputed facts exist as to the reason for termination which preclude summary judgment. TRIAL COURT REVERSED. Marilyn D. Thomson, Oklahoma City, Oklahoma, for Appellant.Daniel J. Hoehner, Oklahoma City, Oklahoma, for Appellee. KAUGER, J.,: ¶1 We retained this cause to address the dispositive issue of whether terminating a licensed practical nurse for missing work in a nursing center based on vomiting on the job and a doctor's note admitting that he should not work for three days due to an infection with influenza would violate public policy.1 We hold that it would. The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw. To hold otherwise would exacerbate communicable disease and expose the most vulnerable people. However, the reason for termination of this employee may have had nothing to do with whether he missed work with the flu. ¶2 At-will employment is not in jeopardy or threatened under these facts. Under the alleged facts, this at-will employee could have been legally terminated by the employer. The employee's disciplinary record at the nursing center shows he was written up at least five times for disregarding and failing to follow supervisor's instructions, spreading rumors, failing to complete tasks, and rebellious behavior. One employee stated that he was belligerent when he found out he was not on the work schedule. The employee's employment history appears to show a pattern of constantly moving from one job to another. This job appears to have been his seventh in seven years. These facts may reflect that the termination was neither pretextual, post hoc rationalization, nor a violation of public policy. Nevertheless, that issue is for the jury to decide. FACTS ¶3 The plaintiff/appellant, Donald Dewayne Moore (Moore/employee) worked for the defendant/appellee Warr Acres Nursing Center (employer/Nursing Center) as a licensed practical nurse. Moore began employment around January 17, 2008. Moore, became acutely ill with the influenza while working on November 25, 2008. The Nursing Center's assistant director of nursing overheard Moore vomiting at the Nursing Center. She stated that he did not look good and that he must have a virus or the flu and she told him to go home. After continuing to experience symptoms on the way home, he went directly to his physician at the Department of Veterans Affairs for treatment. His physician treated him and issued a written notice taking him off work for three days due to his illness.2 ¶4 According to Moore, he followed the Nursing Center's handbook procedures3 and called the on-call scheduler and reported his illness and his doctor's directive, even though he was not scheduled, he also offered to work the upcoming weekend providing that he had recovered. Otherwise, Moore informed the scheduler that he would report to work Monday, and that he would bring his doctor's note. On November 26, 2008, the Nursing Center's director of nursing called Moore and he repeated the information he had previously given the scheduler. ¶5 When the employee arrived at the Nursing Center on Sunday, November 30, 2008, to deliver his doctor's note, he discovered that he had been crossed off of the work schedule for the week of December 1, 2008 and he was subsequently discharged on December 3, 3008. On April 15, 2010, the employee filed a lawsuit against the nursing center alleging that he was discharged for not being at work while suffering from influenza. He insisted that his discharge was unlawful and wrongful as against public policy and against the Workers Compensation Act (the Act).4 ¶6 On May 6, 2010, the employer filed a motion to dismiss the employee's lawsuit. The employer sought dismissal for failure to state a claim under the Act for which relief could be granted and failure to articulate a clear public policy which the employer violated. After a hearing on June 18, 2010, the trial court granted the employer's motion to dismiss for failure to state a claim upon which relief can be granted and the order of dismissal was filed on July 13, 2010. ¶7 The employee appealed, and the Court of Civil Appeals, in an unpublished opinion filed on December 8, 2010, reversed and remanded with instructions. It upheld the trial judge's dismissal of the workers compensation claim. However, it stated that a number of statutes, Acts, and regulations of this State that may well articulate a public policy of prohibiting a health care worker from interacting with nursing home patients while having a communicable disease such as influenza. Nevertheless, the court noted that the employee had neglected to provide the specific legal authorities which would support such a public policy. ¶8 The Court of Civil Appeals remanded the matter to the trial court, holding that the employee should have been given the opportunity to amend his petition and be afforded the opportunity to show with particularity the public policies upon which he relied and which he contended were violated by his termination. We denied certiorari in that appeal on February 14, 2011. The employee filed his first amended petition on March 13, 2011. ¶9 Pursuant to the Court of Civil Appeals instructions, the employee referenced Silver v. CPC-Sherwood Manor, Inc. 2004 OK 1, 84 P.3d, 728, 63 O.S. 2011 §§1-1900.1 et seq (the Nursing Care Act; 63 O.S. 2011 §§ 1-819 et seq. (The Residential Care Act); Infection Control Regulations from the Department of Health, 310:675-7-17.1 as well as federal regulations 42 CFR Ch. V., Pt. 483, §483 (Infection Control) and §483.65, §483.75, and Oklahoma Regulations, 9 OK Reg 3163, 10 OK Reg 1639, 24 OK Reg. 2030, 25 OK Reg. 2382. ¶10 The employer, on March 23, 2011, again attempted to have the lawsuit dismissed and on April 18, 2011, the employee submitted 17 supplemental exhibits in opposition to the employer's motion to dismiss. These exhibits included copies of specific statutes, state and federal regulations and guidelines as well as caselaw, all of which will be discussed herein.5 The exhibits were not merely broad references to whole acts, but rather were specific sections with the applicable provisions underlined, so that the trial court could easily identify them. The trial court again dismissed the case for failure to state a claim upon which relief could be granted on May 12, 2011. The employee again appealed. ¶11 The Court of Civil Appeals, in another unpublished opinion filed April 10, 2012, again reversed and remanded for further proceedings. It held that unquestionably, the employee shouldered the initial burden of proof by providing a well-pled cause of action sufficient to withstand a motion to dismiss. However, once he submitted evidentiary material to the trial court, the analysis should have proceeded as one for summary judgment, placing the burden on the employer to prove no material facts were in dispute and only a pure question of law remained. We denied certiorari on May 29, 2012. ¶12 By December 5, 2013, after various pleadings and discovery requests were filed, the employee filed a motion to set the case for a jury trial. Discovery and depositions continued until the employer filed a motion for summary judgment on April 10, 2014, arguing that there is no clear violation of a compelling public policy. For purposes of the summary judgment motion, the employer admitted all of the facts that the employee alleged and accepted them as true, but still insisted no cause of action existed. The trial court held a hearing on the motion for summary judgment on May 2, and June 13, 2014. At the June 13, 2014, hearing, the trial court said: All right. Given that we've had the discovery of the key witness that had the authority to develop policy for the defendant, and because the defendant, Warr Acres Nursing Center, no longer is a ongoing facility I'll find that there is no public policy to prevent the termination of Mr. Moore, or a violation of public policy upon the termination of Mr. Moore and sustain the summary judgment. The journal entry reflecting the June 13, 2014, ruling was filed July 3, 2014. The employee appealed on August 1, 2014, and we retained the cause on October 2, 2014, addressing the public policy exception to at-will employment. (It should be noted that the fact that Warr Acres Nursing Center, L.L.C., is no longer in operation does not preclude the employee from seeking a remedy, although it may affect what Moore would be able to recover.6) I. BECAUSE THE RECORD REFLECTS DISPUTED FACTS EXIST AS TOTHE REASONS FOR TERMINATION WHICH WERE NEITHERPRETEXTUAL, POST HOC RATIONALIZATIONS, NOR VIOLATIONSOF PUBLIC POLICY SUMMARY JUDGMENT WAS INAPPROPRIATE. ¶13 Pursuant to Rule 13, 12 O.S.2011, Ch. 2 App., Rules for the District Courts, a motion for summary judgment may be filed if the pleadings, depositions, interrogatories, affidavits, and other exhibits reflect that there is no substantial controversy pertaining to any material fact.7 A party opposing the motion may file a written statement showing that a genuine controversy exists. Affidavits and other evidentiary materials which are admissible at trial may be attached in support of these facts. Even when basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts.8 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.9 All conclusions drawn from the evidentiary material submitted to the trial court are viewed in the light most favorable to the party opposing the motion.10 ¶14 The alleged facts show that this at-will employee could certainly have been legally terminated by the employer. Given the employee's disciplinary record at the nursing center, failure to follow supervisor's instructions, spreading rumors, failure to complete tasks, and rebellious behavior, the termination likely was neither pretextual, post hoc rationalization, nor a violation of public policy. Oklahoma follows the at-will employment doctrine which allows an employer to discharge an employee for good cause, for no cause without being guilty of legal wrong.11 However, summary judgment was granted based on finding there was no violation of public policy not on the employee's employment history or for no cause. Instead, for the purpose of summary judgment, the employer insisted that no cause of action existed. There are material questions of fact for the jury to decide. II. OKLAHOMA PUBLIC POLICY CLEARLY ARTICULATES THAT A NURSE CANNOT BE FIRED SOLELY FOR MISSING WORK DUE TOAN INFLUENZA INFECTION. ¶15 For summary judgment purposes, the employer admits and accepts the employee's version of the facts. The Nursing Center argues, that as a matter of law, the employee has no claim against it because the employee was an at-will employee. The employee insists that he was fired solely for not working with the flu and that this is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d 24 and its progeny. ¶16 Burk involved a federal certified question concerning an alleged "implied obligation of good faith and fair dealing" in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was prevented from performing her job duties and was, consequently, constructively discharged. She further asserted that her employer's agent told her he would not recommend her for a promotion because of her sex. ¶17 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term "public policy" was vague, the exception had to be tightly circumscribed.12 ¶18 In Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, the Court also clarified the parameters of the Burk tort remedy, noting that: 1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law; 2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort; 3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal; 4) a discharge for purposes of the Burk tort may be either actual or constructive. ¶19 We again addressed the elements of a Burk tort in Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶27-28, 186 P.3d 928. It involved a plaintiff who alleged wrongful termination for making a complaint to the Department of Labor (DOL) concerning mold at the courthouse. The plaintiff's action was based on the fact that she alleged she was fired for reporting her employer's violation of the law. We reiterated the elements of a Burk tort in such circumstances, stating: The elements of a claim for wrongful discharge of an at-will employee articulated in Burk and its progeny can be summarized. A viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal. ¶20 In Vasek, we equated "adequacy" of remedies with "sufficiency," in other words: Were the remedies available to the plaintiff sufficient to protect Oklahoma's public policy goals? In this cause, the precise question of law is not the employee's sufficiency of remedies, but rather whether Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated. The answer is overwhelmingly and clearly yes. ¶21 In Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health. We noted that the public health codes "in a clear and compelling fashion," articulate a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health. ¶22 The nursing home's alleged failure to follow this policy stated a cause of action under Burk sufficient to survive a motion to dismiss for failure to state a claim. Yet, we expressed no opinion as to the sufficiency or quality of the plaintiff's evidence, yet to be presented, concerning the nursing home's reason for dismissing the cook. The dissenters in Silver, did not join the majority opinion because there was no doctor's diagnosis of a communicable disease. There is such a note in the present case. ¶23 Similar public health codes in a clear and compelling fashion, also articulate a well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza. The Okla. Const. art. 5 §39 directs the legislature to create the Board of Health13 and art. 5 vests the Legislature the power to establish agencies such as the Oklahoma Health Department and to designate agency functions.14 The Legislature delegates rule making authority to facilitate administration of legislative policy and such delegation is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation.15 Administrative agencies create rules which are binding similar to a statute and are only created within legislatively-granted authority and approval. Such rules are necessary in order to make a statutory scheme fully operative.16 ¶24 In Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518 we recognized that: 1) pursuant to the Administrative Procedures Act, 75 O.S. 2011 §§250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy; and 2) Administrative rules are valid expressions of lawmaking powers having the force and effect of law. ¶25 The Oklahoma Department of Health Regulations §310:675-7-17-1, which were statutorily mandated17 to implement the Nursing Home Care Act,18 to cover infection control and require nursing home facilities to have an infection control policy to provide a safe and sanitary environment. This policy is required to include provisions excluding personnel and visitors with communicable infections19 as well as to ensure the health of its residents.20 A nurse's license may be withdrawn for failing to follow minimum quality of care standards.21 ¶26 In addition to the Oklahoma statutory directives, Federal law regulates the states, including Oklahoma, when it comes to infectious disease control. For example, the regulation governing medicare & medicaid services requires facilities to control infectious diseases by prohibiting employees with communicable disease to come in direct contact with residents.22 Federal quality of care standards also require development of policy and procedures to ensure that residents in a nursing home are protected from influenza and pneumonia.23 Nursing facilities must comply with all Federal, State, and local laws regarding regulations and professional standards of care.24 ¶27 Clearly, it cannot be said the there are not constitutional, statutory or caselaw public policy manifestations which would prohibit a registered nurse from working with the flu. The present cause is just like Silver, supra. In Silver, a nursing home cook was fired for missing work because he suffered with a virus, even though statutes prohibited nursing home food to be prepared under conditions whereby it may have been unwholesome or injurious to health.25 Here, a nurse was fired for missing work because he suffered with a virus even though health codes prohibited nurses from working while infected with influenza. ¶28 Title 63 O.S. 2011 §1-1102 and §1-10926 prohibit the handling of food which may have been rendered diseased, unwholesome, or injurious to health. The Oklahoma Department of Health Regulations §310: 675-17-1 require the exclusion of personnel and visitors with communicable infections in nursing homes.27 The Nursing Center provided the employee's job description in its motion for summary judgment. It required him to check foods brought into the facility, make sure they were appropriate according to order and allowances, report dietary changes, and assist in infection control to ensure that tasks in which there is a potential exposure were properly identified.28 The statutes, coupled with his job description, put this employee in a better position than Silver. The only difference between this cause and Silver is that in this cause, the employee suffered from a communicable disease diagnosed by a doctor. The reason for the dissenting opinion in Silver was because the employee was not diagnosed by a doctor as having a communicable disease. Stare decisis and consistent jurisprudence compel this conclusion. Otherwise, we must overrule Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, ¶29 There were over 100 people who died in Oklahoma from the flu last year. Obviously precautions must be taken to prevent the transfer of such a communicable and potentially deadly disease. A recap of Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, which sets the parameters of the Burk tort remedy is compelling. It requires that: 1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law; [The employee furnished a plethora of legal authorities delineating public policy goals.] 2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort; [There is no federal or state remedy. The public policy exception was recognized in Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728.] 3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal; [The employee has established that he is an at-will employee. If, it were to be found by the trier of facts that his absence due to influenza was the reason for his termination, it would violate Oklahoma public policy.] 4) a discharge for purposes of the Burk tort may be either actual or constructive. [It was undisputed that he was discharged.] ¶30 Accordingly, based on the constitution, the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the Nursing Center's rules, regulations and handbook, a public policy exception exists which would prohibit a nurse from being fired solely for not working while infected with influenza. This is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d and its progeny. This holding, however does not end the inquiry of this cause because disputed facts are alleged which show that the firing had nothing to do with not working with the flu. CONCLUSION ¶30 Summary judgment was inappropriate. Oklahoma as well as federal law clearly shows that a nurse in a nursing center cannot be fired for not working with the flu. However, the disputed facts show that this employee's firing may have had very little to do with his three-day absence from work with the flu. TRIAL COURT REVERSED. REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, GURICH, JJ., concur. WINCHESTER, (by separate writing) and TAYLOR, JJ., dissent. FOOTNOTES 1 In his Third Amended Petition in Error, the appellant attaches an exhibit listing 50 issues to be raised on appeal. Included in that exhibit are many arguments and authorities Appellant had not previously presented to the trial court in his motion to vacate the grant of summary judgment and the Appellee has moved to strike most of the exhibit, arguing it violates the rules of accelerated procedure for summary judgement. We agree. Okla. Sup. Ct. Rule 1.36, 12 O.S. 2011 App. 1. 2 The note is signed from Dr. Quang Van Pham, a Staff Physician at the Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma, dated November 25, 2008 and it provides: To Whom It May Concern: Mr. Moore may return to work in three days.Please contact me for further assistance. 3 The Warr Acres Nursing Center Handbook provides: Absenteeism All employees are expected to report to work as scheduled on time. It is the responsibility of the employee to notify her/his supervisor when illness or other circumstances prevent them from reporting to work. Please note that you must call your SUPERVISOR not a peer. Except in a life-threatening emergency, all employees must personally call their supervisor two (2) hours before his/her inability to report to work. No Call No Show is a CRITICAL violation and may result in termination per policy. Upon your return to work, you will be asked for the reason of absence which will be documented and put into your personnel record. The facility reserves the right to request proof of the reason for absenteeism, ie. a written physician's statement, death notice, etc. [It appears the employee underlined the most relevant portions in order for the trial court to easily identify them.] 4 Title 85 O.S. Supp. 2011 §§ 1 et. seq The current version is known as the Administrative Workers Compensation Act, 85A O.S. Supp. 2013 §§1 et seq. 5 The exhibit list includes: Oklahoma Department of Health Regulation §310: 675-7-17-1 governing infection control in nursing homes; 42 Code of Federal Regulation §483.65, governing facilities which provide medicare & medicaid services; 42 CFR §483.25(n), quality of care, 59 O.S. §567.8 (Nursing Practice Act) 42 CFR §483.75, compliance with local laws and standards; Silver v. CPC-Sherwood Manor, Inc, 2004 OK 1, 84 P.3d 728, Moore v. Warr Acres Nursing Center, LLC, No. 108,595, prior appeal; Warr Acres Nursing Center's Employee Handbook, a Physician's written statement taking the employee off work for three days; 42 CFR §§70.1(a)-(d) providing the definition of communicable diseases; 45 CFR §482.42 conditions of participation in Medicare/Medicaid; Band v. Baptist Village Retirement Communities of Oklahoma, Inc., 2009 WL 5216927 (N.D. Okla. 12-30-2009); U.S. Government Operations Manual for all states to regulate compliance with long term care facilities. 6 The Nursing Center is a L.L.C. which is apparently no longer in business. Title 18 O.S. 2011 §2037(B) provides that: B. A limited liability company continues in existence after dissolution, regardless of whether articles of dissolution are filed, but may carry on only activities necessary to wind up its business or affairs and liquidate its assets under Sections 2039 and 2040 of this title. Title 18 O.S. 2011 §2039(A)(2) provides: 2. The persons winding up the business or affairs of the limited liability company may, in the name of, and for and on behalf of, the limited liability company: a. prosecute and defend suits, b. settle and close the business of the limited liability company, c. dispose of and transfer the property of the limited liability company, d. discharge the liabilities of the limited liability company, and e. distribute to the members any remaining assets of the limited liability company. 7 Rules for District Courts of Oklahoma, Rule 13 12 O.S. 2011, Ch. 2, App., provides in pertinent part: a. A party may move for either summary judgment or summary disposition of any issue on the merits on the ground that the evidentiary material filed with the motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact. The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and a statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted. Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to the motion. Unless otherwise ordered by the court, a copy of the material relied on shall be attached to or filed with the statement. . . . c. The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The admissibility of other evidentiary material filed by either party shall be governed by the rules of evidence. If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition. A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material. Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the context of the summary procedure shall be treated as rulings in limine. . . . e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party. . . . 8 Brown v. Oklahoma State Bank & Trust Company of Vinita, 1993 OK 117, ¶7, 860 P.2d 230. 9 Brown v. Oklahoma State Bank & Trust Company of Vinita, see note 8, supra. 10 Brown v. Oklahoma State Bank & Trust Company of Vinita, see note 8, supra. 11 City of Jenks v. Stone, 2014 OK 11, ¶13, 321 P.3d 179. 12 Three years after Burk, we promulgated Tate v. Browning Ferris, Inc, 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered -- yes. The history and evolution of the Burk tort is detailed in our opinion in Kruchowski v. Weyerhaeuser Company, 2008 OK 105, 202 P.3d 144. 13 The Okla. Const. art. 5 §39 provides: Boards of Health, Dentistry and Pharmacy - Pure Food Commission - Present practitioners. The Legislature shall create a Board of Health, Board of Dentistry, Board of Pharmacy, and Pure Food Commission, and prescribe the duties of each. All physicians, dentists and pharmacists now legally registered and practicing in Oklahoma and Indian Territory shall be eligible to registration in the State of Oklahoma without examination or cost. 14 Title 75 O.S. Supp. 2013 §250.2(A) provides: A. Article V of the Oklahoma Constitution vests in the Legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article VI of the Oklahoma Constitution charges the Executive Branch of Government with the responsibility to implement all measures enacted by the Legislature. 15 Title 75 O.S. Supp. 2013 §250.2(B) provides: B. In creating agencies and designating their functions and purposes, the Legislature may delegate rulemaking authority to executive branch agencies to facilitate administration of legislative policy. In so doing, however, the Legislature reserves to itself: 1. The right to retract any delegation of rulemaking authority unless otherwise precluded by the Oklahoma Constitution; 2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rulemaking authority; 3. The right and responsibility to designate the method for rule promulgation, review and modification; 4. The right to approve or disapprove any adopted rule by joint resolution; and 5. The right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines such rule to be an imminent harm to the health, safety or welfare of the public or the state or if the Legislature determines that a rule is not consistent with legislative intent. 16 See, Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518 [Pursuant to the Administrative Procedures Act, 75 O.S. 2001 §§250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law.]; See Chevron, U.S.A, Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.ED.2d 694 for discussion of the controlling weight given to an administrative agency and administrative agency's power and necessity to formulate policy and fill any gaps left implicitly or explicitly by Congress; Been v. O.K Industries, Inc., 495 F.3d 1217, 1226 [Regulations promulgated by an agency exercising its congressionally granted rule-making authority are entitled to Chevron deference and have the ful force of law.]. 17 In addition to specifically implementing the Nursing Home Care Act, required the State Board of Health to promulgate rules and establish procedures for nursing facilities. For example, 63 O.S. 2011 §1-1942 provides: The Department shall have the power to adopt rules and regulations in furtherance of the purpose of this act. Title 63 O.S. 2011 §1-1900.2 provides: A. It is the intent of the Legislature to foster the development of resident autonomy, individualization and culture change in nursing facilities licensed by the State Department of Health. B. The Commissioner of Health is authorized to waive any provision of the Nursing Home Care Act and any rules promulgated pursuant thereto, provided: 1. The waiver will not cause the State of Oklahoma to fail to comply with any applicable requirements established by the Centers for Medicare and Medicaid Services; 2. The waiver is granted to allow a nursing facility to satisfy the spirit of a statutory or administrative requirement by alternative means; 3. The waiver will not adversely affect the health, safety or welfare of any resident of a nursing facility; and 4. The waiver is in support of a deinstitutionalization model that restores individuals to a self-contained residence in the community that is designed like a private home and houses no more than twelve individuals. C. The State Board of Health shall promulgate rules and establish procedures necessary to implement the waiver process established by this section. Title 63 O.S. 2011 §1-836 provides in pertinent part: A. The State Board of Health shall promulgate rules to enforce the provisions of the Residential Care Act. Such rules shall regulate: 1. Location and construction of the home, including plumbing, heating, lighting, ventilation, and other physical conditions which shall ensure the health, safety, and comfort of residents and protection from fire hazards; 2. Number of all personnel, including management and supervisory personnel, having responsibility for any part of the care given to residents. The Department shall establish staffing ratios for homes which shall specify the number of staff hours of care per resident that are needed for care for various types of homes or areas within homes. Minimum personnel ratio requirements for all homes shall be based only on average daily census; 3. All sanitary conditions within the home and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, which shall ensure the health and comfort of residents; . . . 18 Oklahoma Department of Health Regulation §310: 675-1-1 Purpose, provides: The purpose of this Chapter is to implement the 'Nursing Home Care Act' (63 O.S. 1991 §§ 1-1901 et seq.) And to establish the minimum criteria for the issuance or renewal of a nursing or specialized facility license. Title 63 O.S. 2011 §1-1900.1 was added in 2001 and it provides: A. This act shall be known and may be cited as the "Long-Term Care Reform and Accountability Act of 2001". B. The purpose of the Long-Term Care Reform and Accountability Act of 2001 shall be to design, develop and implement policies and procedures that improve the quality of care provided in this state's long-care delivery system for the elderly and disabled. The purpose of the Long-Term Care Reform and Accountability Act of 2001 shall be accomplished through a series of initiatives. The short title of the act is found in §1-1901 and it provides: This act shall be known and may be cited as the "Nursing Home Care Act". 19 Oklahoma Department of Health Regulations §310: 675-17-1 provides in pertinent part: (a) The facility shall have an infection control policy and procedures to provide a safe and sanitary environment. The policy shall address the prevention and transmission of disease and infection. The facility, and its personnel, shall practice the universal precautions identified by the Centers for Disease Control. All personnel shall demonstrate their knowledge of universal precautions through performance of duties. (b) The facility shall maintain a sanitary environment and prevent the development and transmission of infection in the following areas.. . . (7) Sources of air-borne infections.(8) Health status of all employees and residents. . . . (c) Infection control policies to prevent the transmission of infection shall include the following:(1) Excluding personnel and visitors with communicable infections. . . . Federal guidelines define communicable disease. Title 42 Code of Federal Regulations, §70.1(a-d), vol. 4, provides: As used in this part, terms shall have the following meaning:(a) Communicable diseases means illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment.(b) Communicable period means the period or periods during which the etiologic agent may be transferred directly or indirectly from the body of the infected person or animal to the body of another.(c) Conveyance means any land or air carrier, or any vessel as defined in paragraph (h) of this section.(d) Incubation period means the period between the implanting of disease organisms in a susceptible person and the appearance of clinical manifestation of the disease. 20 Title 63 O.S. 2011 §1-1925 provides in pertinent part: The State Department of Health shall prescribe minimum standards for facilities. These standards shall regulate: 1. Location and construction of the facility, including plumbing, heating, lighting, ventilation, and other physical conditions which shall ensure the health, safety and comfort of residents and protection from fire hazards; 2. Number and qualifications of all personnel, including management and nursing personnel, having responsibility for any part of the care given to residents; specifically, the Department shall establish staffing ratios for facilities which shall specify the number of staff hours per resident of care that are needed for professional nursing care for various types of facilities or areas within facilities; 3. All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, which shall ensure the health and comfort of residents;. . . Title 63 O.S. 2011 §1-821 provides in pertinent part: A. The State Board of Health shall promulgate rules to enforce the provisions of the Residential Care Act which shall include, but not be limited to, provisions for temperature settings, lighting, ventilation, and other physical conditions that affect the health, safety and welfare of the residents in a home. Residential care homes that provide care for three or fewer residents shall be subject to the provisions of the Residential Care Act; provided, however, if such rules unduly restrict operation of the home, the Board shall be authorized and shall promulgate additional rules for residential care homes based upon the number of residents in a home. . . . 21 Title 59 O.S. 2011 §567.8 provides in pertinent part: B. The Board shall impose a disciplinary action against the person pursuant to the provisions of subsection A of this section upon proof of one or more of the following items. The person: . . . 3. Fails to adequately care for patients or to conform to the minimum standards of acceptable nursing or Advanced Unlicensed Assistant practice that, in the opinion of the Board, unnecessarily exposes a patient or other person to risk of harm; . . . Title 63 O.S. 2011 §1-825 provides: Any person who violates any of the provisions of the Residential Care Act, the rules promulgated pursuant thereto by the State Board of Health, or any order or determination of the State Department of Health pursuant to the provisions of the Residential Care Act, or who fails to perform any duty imposed upon such person by the provisions of the Residential Care Act, shall be subject to any of the following penalties and liabilities as authorized by the provisions of the Residential Care Act: 1. License revocation, suspension, or nonrenewal; 2. Transfer of residents; 3. Temporary manager; 4. Injunctive proceedings; 5. Civil fines; and 6. Criminal penalties as provided in Section 1-832 of this title. 22 Title 42 Code of Federal Regulations, §483, vol. 4, Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.65 provides: Infection control.The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.(a) Infection control program. The facility must establish an infection control program under which it--(1) Investigates, controls, and prevents infections in the facility;(2) Decides what procedures, such as isolation, should be applied to an individual resident; and(3) Maintains a record of incidents and corrective actions related to infections.(b) Preventing spread of infection.(1) When the infection control program determines that a resident needs isolation to prevent the spread of infection, the facility must isolate the resident.(2) The facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.(3) The facility must require staff to wash their hands after each direct resident contact for which handwashing is indicated by accepted professional practice.(c) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection. Title 45 Code of Federal Regulations §482.42 provides: §482.42 Condition of participation: Infection control.The hospital must provide a sanitary environment to avoid sources and transmission of infections and communicable diseases. There must be an active program for the prevention, control, and investigation of infections and communicable diseases. (a) Standard: Organization and policies. A person or persons must be designated as infection control officer or officers to develop and implement policies governing control of infections and communicable diseases. The infection control officer or officers must develop a system for identifying, reporting, investigating, and controlling infections and communicable diseases of patients and personnel. (b) Standard: Responsibilities of chief executive officer, medical staff, and director of nursing services. The chief executive officer, the medical staff, and the director of nursing services must-- (1) Ensure that the hospital-wide quality assessment and performance improvement (QAPI) program and training programs address problems identified by the infection control officer or officers; and (2) Be responsible for the implementation of successful corrective action plans in affected problem areas. 23 Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.25 provides in pertinent part: . . .(n) Influenza and pneumococcal immunizations--(1) Influenza. The facility must develop policies and procedures that ensure that--(i) Before offering the influenza immunization, each resident or the resident's legal representative receives education regarding the benefits and potential side effects of the immunization;(ii) Each resident is offered an influenza immunization October 1 through March 31 annually, unless the immunization is medically contraindicated or the resident has already been immunized during this time period;(iii) The resident or the resident's legal representative has the opportunity to refuse immunization; and(iv) The resident's medical record includes documentation that indicates, at a minimum, the following:(A) That the resident or resident's legal representative was provided education regarding the benefits and potential side effects of influenza immunization; and(B) That the resident either received the influenza immunization or did not receive the influenza immunization due to medical contraindications or refusal. . . . 24 Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.75 provides in pertinent part: A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.(a) Licensure. A facility must be licensed under applicable State and local law.(b) Compliance with Federal, State, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility. . . . 25 Title 63 O.S. 2011 §1-1102(a), (c) provides in pertinent part: The following acts and the causing thereof within the State of Oklahoma are hereby prohibited: (a) the manufacture, sale, or delivery, holding or offering for sale of any food that is adulterated or misbranded. . . . (c) the receipt in commerce of any food that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise. Title 63 O.S. 2011 §1-1109(a)(4) provides: A food shall be deemed to be adulterated: (a) . .(4) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome, or injurious to health; . . . 26 Title 63 O.S. 2001 §§1-1102 and 1-1109, see note 25, supra. 27 Oklahoma Department of Health Regulations §310: 675-17-1, see note 19, supra. See also, 63 O.S. 2011 §1-836, see note 17, supra; 42 Code of Federal Regulations, §70.1(a-d), vol. 4, see note 9, supra; 63 O.S. 2011 §1-1925 see note 10, supra; 63 O.S. 2011 §1-821 see note 10, supra; 42 C1ode of Federal Regulations, §483.65, see note 22, supra; 45 Code of Federal Regulations §482.42, see note 22, supra; 42 Code of Federal Regulations §483.25, see note 23, supra. 28 Moore's job description was provided by the Nursing Center and it is found in the record at tab 33 attached as exhibit #2 to the Nursing Center's motion for summary judgment and brief. A charge nurse's duties state: Duties Responsibilities. . . *Report all discrepancies noted concerning physicians orders, diet change, charting errors, etc, to the Director. . . Nursing:. . . *Check foods brought into facility and make sure they are appropriate/according to order and allowances. Reports any problems to the DON and Dietary Supervisor. . .*Assist in infection control to ensure that tasks in which there is a potential exposure to blood/bodily fluids are properly identified. . . . Winchester, J., with whom Taylor, J., joins, dissenting: ¶1 I respectfully dissent. ¶2 This employer did not require the employee to work his schedule nor remain at work and do other duties not associated with direct patient care. While I understand the summary judgment aspect, the majority nevertheless acknowledged that the termination of this employee was likely the result of actual misconduct. The majority opinion clearly impacts and restricts employment-at-will. I do not take issue with a health department rule that protects patient exposure. But, the employer should be given the flexibility to evaluate his employee's absence from work and also the flexibility to determine whether alternative duties are appropriate and consistent with the employment contract. The practical impact of this Court's holding is to expand the public policy exception to employment-at-will, which will now be governed by administrative rules and regulations. After this case becomes law, an employer must consult those rules and regulations before exercising the decision to terminate an employee. ¶3 The rule of stare decisis does not support the majority opinion. My reading of the opinion is that public policy is now also found in "Oklahoma and Federal regulations."1 The majority opinion cites the at-will employment rule as established by stare decisis. In ¶ 18 of that opinion the Court quotes: "1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law. . . ." The majority opinion in ¶ 20 poses the "precise question of law" as "whether Oklahoma's constitutional, statutory, or decisional law or . . . a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated." The opinion then answers "overwhelmingly and clearly yes." ¶4 The majority opinion cites Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, and pronounces a result not found in the Silver opinion: "In Silver . . . we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health." Majority Opinion, ¶ 21. Emphasis added. ¶5 The majority opinion continues in the same paragraph that the public health codes "'in a clear and compelling fashion' articulate a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under the conditions whereby it may have been rendered diseased, unwholesome, or injurious to health." That holding is not found in Silver. ¶6 An examination of that opinion reflects that the Silver majority attempted to continue to restrict "public policy" to statutes, as opposed to administrative regulations. The Silver Court does not cite Administrative Code provisions as setting public policy. In fact, it specifically disclaims such a position: "This Court need not mire itself in the controversy which confronted the Court of Civil Appeals concerning whether certain agency rules promulgated by the Oklahoma Department of Health provide a permissible source of public policy in this matter." Silver, 2004 OK 1, ¶ 6, 84 P.3d at 730. ¶7 The statutes cited in Silver were from title 63, and are now codified at 63 O.S.2011, §§ 1-1102, and 1-1109. The Silver Court held: " Sections 1-1102(a), (c) and 1-1109(a)(4) articulate, in a clear and compelling fashion, a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health." Silver, 2004 OK 1, ¶ 7, 84 P.3d at 730. ¶8 The new, and previously rejected rule, comes in ¶ 23 of the majority opinion of the case now before this Court: "Similar public health codes in a clear and compelling fashion, also articulate a well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza." The Court attempts its support of this new rule by linking article 5, § 39 of Oklahoma's Constitution, which vests legislative power to establish agencies, to the subsequent establishment of agencies. Then when administrative agencies promulgate rules, the majority opinion concludes that because administrative agencies create rules that are binding "similar to" statutes, and because those rules are authorized and approved by the Oklahoma Legislature, then these are somehow equivalent to statutory law. That reasoning is faulty. ¶9 Public policy cannot be delegated to an administrative agency. Section 1 of article IV of the Oklahoma Constitution provides: "The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." ¶10 Section 1 of article V of the Oklahoma Constitution requires that "The Legislative authority of the State shall be vested in a Legislature consisting of a Senate and House of Representatives. . . ." From these constitutional provisions comes the prohibition against the delegation of legislative power. ¶11 The Court in Democratic Party v. Estep, 1982 OK 106, ¶ 16, n. 23, 652 P.2d 271, 277 n. 23 (1982) observed that this prohibition against the delegation of legislative power "rests on the premise that the legislature must not abdicate its responsibility to resolve fundamental policy making by [1] delegating that function to others or [2] by failing to provide adequate directions for the implementation of its declared policy." Declaring that a violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health is a violation of public policy and therefore fits within the exception to at-will employment articulated in Burk v. K-Mart Corp., 1989 OK 22, ¶ 17, 770 P.2d 24, 28, is not supported by our case law. ¶12 "The terminable-at-will employment doctrine allows an employer to discharge an employee for good cause, no cause, or even for a morally wrong cause without being liable for a legal wrong." Reynolds v. Advance Alarms, Inc., 2009 OK 97, ¶ 5, 232 P.3d 907, 909. "The Burk tort does not even protect an employee from the employer's poor business judgment, or corporate foolishness. Shero v. Grand Savings Bank, 2007 OK 24, ¶ 12, 161 P.3d 298, 302. In Darrow v. Integris Health, Inc. 2008 OK 1, ¶ 13, 176 P.3d 1204, 1211, that Court held that even a federal statute by itself cannot serve as an articulation of Oklahoma public policy absent a specific Oklahoma court decision, statute or constitutional provision. ¶13 If administrative rules are added to the list of sources for finding a violation of a clear mandate of public policy, I do not see how a Burk tort can be described as a "tightly circumscribed framework." Shero, 2007 OK 24, ¶ 12, 161 P.3d at 303. Including administrative rules within the public policy exception greatly expands the Burk tort, placing a greater burden on employers who must search through those rules to determine whether termination of an employee will be against public policy. This new at-will employment rule forces employers to require that they terminate employees only if an articulable and provable good cause can be shown. The majority's holding continues to erode the right of employers to manage their businesses on a day-to-day basis. ¶14 I would affirm the summary judgment of the trial court. FOOTNOTES 1 Majority Opinion, ¶ 1 proclaims: "The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw." Emphasis added.

d6f22c8f-728d-4cfa-a2bb-e45ece9e5ea9

Scocos v. Scocos

oklahoma

Oklahoma Supreme Court

SCOCOS v. SCOCOS2016 OK 36Case Number: 112723Decided: 03/29/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KAYLA J. SCOCOS, Plaintiff/Appellant, v. ANDREW M. SCOCOS, Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY, OKLAHOMA, THE HONORABLE DOUGLAS A. KIRKLEY, DISTRICT JUDGE. ¶0 Appellant/Mother, Kayla J. Scocos, brought post-decree motion in trial court to relocate with the parties' child from Oklahoma to Louisiana. Appellee/Father, Andrew M. Scocos, filed objection and sought immediate physical custody of the child. Trial court determined the move was not made in good faith and shifted primary physical custody to Father. Mother appealed the ruling and we retained the matter. REVERSED AND REMANDED. Kayla J. Scocos (now Giles), Waco, TX, Pro se. Matthew P. Gomez, Kimberly A. Jantz, Tulsa, OK, for Defendant/Appellee. Winchester, J. ¶1 The issue in this case is whether the trial court erred in finding Appellant/Mother's request to relocate from Oklahoma with the parties' child was not made in good faith. The trial court opined that the sole reason for the relocation to Louisiana was due to a love interest and found the request was made in bad faith. We previously retained the case and find error warranting reversal of the trial court's ruling. BACKGROUND ¶2 Kayla J. Giles,1 Mother/Appellant, and Andrew M. Scocos, Father/Appellee, were married on July 4, 2011, in Tulsa, Oklahoma. The couple had one child together, A.E. (the Child), who was born May 3, 2011. Mother filed for divorce on June 6, 2012 on the grounds of incompatibility. The trial court entered a Decree of Divorce and Dissolution of Marriage (Agreed Decree) as well as a Joint Child Custody Plan on April 3, 2013, wherein Mother was designated as the Child's primary, physical custodian. Shortly thereafter, Mother filed a notice of intent to relocate with the Child from Tulsa, Oklahoma to Alexandria, Louisiana.2 Father filed an objection to the relocation and also sought primary physical custody of the Child. ¶3 Following a multi-day hearing, the trial court denied Mother's request to relocate, finding that the move was not in good faith as required by 43 O.S.2011, § 112.3(K) because a "major motivating factor" for the requested move was Mother's "romantic interest."3 The trial court maintained the parties' joint custody status, but ordered the Child's residence to be placed with Father, allowing Mother only two days of visitation per month despite the fact that she had previously been the Child's primary caretaker. The court denied Mother's motions to award her sole custody, to modify the trial court's new custody order, and to reconsider. Additionally, the court awarded attorney's fees to Father in the amount of $4,500. ¶4 Mother alleges four counts of error: (1) the trial court erred in determining "good faith"; (2) the court erred in applying the "best interests" test; (3) the trial judge erred in failing to recuse himself because he was biased against Appellant; and (4) the court erred in awarding Respondent attorney's fees. We retained the matter for review. Standard of Review ¶5 The best interest of the child is a paramount consideration when the trial court determines custody issues and, on appeal, this Court "will not disturb the trial court's judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence." Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. An abuse of discretion occurs when the trial court's decision is "clearly against the evidence or is contrary to a governing principle of law." Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550, 554. We give deference to the trial court in reviewing custody decisions because it "is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor." Hoedebeck v. Hoedebeck, 1997 OK CIV APP 69, ¶ 10, 948 P.2d 1240, 1243. Discussion ¶6 Title 43 O.S.2011, § 112.2A affirms the right of a custodial parent to relocate, "subject to the power of the district court to restrain a removal which would prejudice the right or welfare of the child." Kaiser v. Kaiser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282 (Title 43 O.S.2011, § 112.2A gives the custodial parent a "presumptive right" to relocate.). After following certain procedural steps to provide notice and an opportunity for the nonrelocating parent to object, the relocating parent "has the burden of proof that the proposed relocation is made in good faith." 43 O.S.2011, § 112.3.4 Oklahoma law defines good faith as "an honest intention to abstain from taking any unconscientious advantage of another.." 25 O.S.2011, § 9. If the relocating parent meets the good faith requirement, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child." 43 O.S.2011, § 112.3(K); Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶12, 160 P.3d 951. The issue herein is whether Mother satisfied her burden to prove that the proposed relocation was made in good faith as required by § 112.3(K). ¶7 Following two days of hearings, the trial court denied Mother's relocation request, finding the reason for relocation was not made in good faith. In the court's October 16, 2013 Minute Order, the court found "the evidence presented is conflicting as to whether Petitioner is relocating for employment and family or to be closer to her significant other" and deemed that the move was not in good faith because "a major motivating factor of the Mother's requested relocation is her romantic interest." Although Mother admits she was in a relationship with a man she had known since childhood and who also lived in Louisiana, Mother denied that this relationship was the reason for her move. Mother further testified that the man worked out of the state the majority of the time and that he would not be living with her. ¶8 The court's finding that Mother's "only reason for relocation is for a love interest" is in direct conflict with Mother's undisputed testimony that the primary reasons for her move were acceptance of new employment with the Department of Veteran Affairs in Louisiana starting May 6, 2013, and that the large majority of her family was located in Louisiana. Mother testified she had over thirty family members living within close proximity to her new home in Louisiana and no grown family living in Oklahoma that could provide support to her in raising her children.5 She also testified that she had been unemployed for several months in Oklahoma and would have had to move to a different location to pursue a job in her field of work. Mother stated that her new, federal employment, coupled with the disability benefits she received, would allow her to provide a financially stable environment for her daughter, including a new home and a private preschool near where Mother worked. ¶9 Father argues Mother purposely withheld her intentions to move to Louisiana during the negotiations of the Joint Custody Plan and that her actions should be considered as bad faith under a request for relocation analysis pursuant to 43 O.S.2011, § 112.3(K). Mother admits she did not officially notify Father of her plan to relocate until she had received, and accepted, the Louisiana job offer.6 However, Mother testified she made clear that Father was aware of her desire to return to Louisiana. In fact, Father testified that he was aware of Mother's desire to return to Louisiana to live near her family since long before the Child was even born. ¶10 Regardless of whether Mother knew during negotiations of the joint custody plan that a move might be imminent, Mother contends this has no bearing on whether her reasons for relocation constitute good faith. We agree. The record is devoid of evidence that Mother's proposed relocation was designed to purposely deprive Father of visitation which could give rise to bad faith under 25 O.S.2011, § 9. Further, we can find no authority for the proposition that negotiation of a party's agreed divorce decree should have any relevance to a later relocation hearing. ¶11 Courts routinely find that employment opportunities, financial considerations and proximity to loved ones are all legitimate reasons to support relocation. See Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, 160 P.3d 951 (relocation to be with new spouse found to be in good faith); Kaiser v. Kaiser, 2001 OK 30, 23 P.3d 278 (Court approved relocation for employment-related reasons). Moreover, relocation requested on the basis of pursuit of a love interest should not automatically be deemed bad faith, as found by the trial court's statements herein. To the contrary, this Court has previously approved good faith requests for relationship-based relocation. See, e.g., Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶12, 160 P.3d 951. ¶12 We find that Mother has met her burden of proving that the move to Louisiana was proposed in good faith. A review of the transcripts shows Mother provided ample, legitimate reasons for her desire to move back to Louisiana, none of which reflect in the record any intent to harm Father's relationship with the Child or which would otherwise give rise to bad faith. ¶13 Mother's satisfaction of her good faith requirement shifted the burden to Father to prove that the relocation would not be in the best interests of the Child. 43 O.S.2011 § 112.3(K); Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶12, 160 P.3d 951 (once relocating parent satisfies good faith burden of proof, the burden shifts to the nonrelocating parent to show that the proposed move is not in the best interests of the child). Although the trial court's order generally stated that it applied the criteria for a "child best interest analysis," any such analysis is flawed considering the court found Mother's relocation reasons to be in bad faith.7 The necessary shifting to Father of the burden of proof regarding the Child's best interests clearly did not take place nor are any of the requisite factors discussed. ¶14 After reviewing the record, we find Father failed to sustain his burden of proof to show that relocation would be against the best interests of the Child. Paragraph J of 43 O.S.2011, § 112.3 provides the following factors for the court to consider regarding a proposed relocation: 1.a. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life, b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child, c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties, d. the child's preference, taking into consideration the age and maturity of the child, e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person, f. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity, g. the reasons of each person for seeking or opposing the relocation, and h. any other factor affecting the best interest of the child. 43 O.S.2011, § 112.3(J). ¶15 Father provided no evidence that Mother was unfit or that the move would not be in the best interest of the Child. Nothing in the transcripts weighs in favor of a change of primary, physical custody in this case. The evidence reflects that even prior to the parties' divorce, Mother was always the Child's primary caregiver, making all the necessary decisions for the Child's well-being. Testimony from both parties reflect Mother to be a fit parent who has the Child's best interests at heart and that the relocation would be more financially stable for Mother and the Child. ¶16 Father's primary concern appeared to be the visitation schedule. However, the cases uniformly hold that visitation rights alone are an insufficient basis on which to deny relocation and thereby change custody of a child. A custodial parent's relocation should not be disallowed solely to "maintain the existing visitation patterns." Kaiser v. Kaiser, 2001 OK 30, ¶ 29, 23 P.3d 278, 286 (citation omitted). As the Court found in Kaiser, the "fact that father's visitation would be altered by the mother's relocation is understandably difficult and upsetting for him, but maintaining his existing visitation schedule did not justify the trial court's order restricting mother's ability to leave Oklahoma to pursue her career opportunity and attempt to find a better life for herself" and their child. Kaiser v. Kaiser, 2001 OK 30, ¶ 29, 23 P.3d 278, 286. ¶17 Here, Mother was willing to work with Father to provide additional visitation above and beyond that called for in the joint custody plan. The case is remanded with instructions to allow Mother's proposed relocation, and to make appropriate orders regarding visitation and any other adjustments necessitated by our ruling herein. There being no compelling reason to award attorney's fees to either party at this time, the trial court's award of fees to Father is also reversed. REVERSED AND REMANDED. ALL JUSTICES CONCUR. FOOTNOTES 1 The title of the action states Appellant's name as Kayla J. Scocos, but since the divorce she goes by her maiden name of Kayla J. Giles. 2 Due to the immediate start date of her new employment, Mother did take the Child with her to Louisiana for a period of roughly 10 days which caused Father to miss some of his scheduled visitation with the Child. 3 At the time of Mother's request to relocate, Mother was pregnant with the child of a man she had known since childhood and who also lived in Louisiana. 4 In pertinent part, 43 O.S.2011, § 112.3 provides: A. As used in this section: *** 3. "Person entitled to custody of or visitation with a child" means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement; 4. "Principal residence of a child" means: a. the location designated by a court to be the primary residence of the child, b. in the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside, or *** 5. "Relocation" means a change in the principal residence of a child over seventy-five (75) miles from the child's principal residence for a period of sixty (60) days or more, but does not include a temporary absence from the principal residence. B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by this section. 2. Except as otherwise provided by this section, an adult entitled to visitation with a child shall notify every other person entitled to custody of or visitation with the child of an intended change in the primary residence address of the adult as required by this section. C. 1. Except as provided by this section, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult must be given: a. by mail to the last-known address of the person to be notified, and b. no later than: (1) the sixtieth day before the date of the intended move or proposed relocation, or (2) the tenth day after the date that the person knows the information required to be furnished pursuant to this subsection, if the person did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child. *** G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice. *** K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child. 5 In addition to the Child at the heart of this matter and an infant child with the man from Louisiana, Mother has a son from a previous marriage with whom she shared joint custody of at the time of the hearings herein. That child was also the subject of a separate request to relocate trial, the outcome of which is unknown. 6 Mother also admits that she took the Child with her to Louisiana in order to start her new job but that she hoped to work out visitation with Father to provide him with sufficient visitation. The record reflects that at the time of the hearing, the parties had agreed to a two week on, two week off visitation schedule. 7 The trial court stated: "Although the Court did not find the reason for relocation to be made in good faith, the relocation criteria was applied for a child best interest analysis." No further discussion was made in the order regarding best interests or the factors applied as required by43 O.S.2011, § 112.3(J).

9333bee7-ce20-4ff9-a75c-12756cca7231

IN RE INITIATIVE PETITION NO. 403 STATE QUESTION NO. 779

oklahoma

Oklahoma Supreme Court

IN RE INITIATIVE PETITION NO. 403, STATE QUESTION NO. 7792016 OK 59Case Number: 114982Decided: 06/01/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE: INITIATIVE PETITION NO. 403, STATE QUESTION NO. 779. STATE OF OKLAHOMA, TO: CHRIS BENGE, SECRETARY OF STATE, STATE OF OKLAHOMA GREETINGS: ORDER ¶1 An initiative petition has been circulated in the State of Oklahoma, seeking the approval by the electorate of State Question No. 779, a proposed amendment to the Oklahoma Constitution, by adding Article 13-C, which would create the "Oklahoma Education Improvement Fund," to be funded with an additional one-cent sales and use tax; for purposes related to the improvement of public education. ¶2 In accordance with 34 O.S. Supp. 2015 § 8, the Court recognizes the certification of the Secretary of State that the petition contains 301,512 signatures. The Court further recognizes that the number of signatures necessary to place the measure before the electorate is 123,725, being 15% of the votes cast for the state office receiving the highest number of votes in the November, 2014 general election. The signatures on the petition appear numerically sufficient. ¶3 The Secretary of State is directed forthwith to cause to be published in at least one newspaper of general circulation in the State of Oklahoma, a public notice of the filing of Initiative Petition No. 403, State Question No. 779, and of the apparent numerical sufficiency of the signatures. The Secretary of State shall also publish the text of the ballot title as rewritten by the Attorney General pursuant to 34 O.S.Supp.2015 § 9(D). The notice shall advise that any citizen of the State of Oklahoma may file a written objection to the signature count, or the rewritten ballot title, in the office of the Clerk of the Supreme Court of the State of Oklahoma, with a copy directed to the proponents of the petition and the Attorney General. Any such objection must be filed with the Clerk of the Supreme Court not later than ten (10) days from the date of publication. A copy of the objection must also be filed with the Secretary of State. ¶4 Proceedings in the Supreme Court to resolve any objection shall be in accordance with 34 O.S.Supp.2015 §§ 8-11, and such other procedures as may be ordered by the Court. ¶5 The Secretary of State is directed to obtain verified proof of publication of the notice herein directed, and to file the same with the Clerk of this Court as a return to this order. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 31ST DAY OF MAY, 2016. /S/CHIEF JUSTICE ¶6 Reif, C.J., Combs, V.C.J., Kauger, Winchester, Edmondson, Taylor (by separate writing with whom Kauger and Winchester, JJ., join), Gurich, JJ., concur. Based upon the statutorily-limited scope of this review of signatures, I concur. I continue to urge the concerns expressed in my dissent in In re Initiative Petition No. 403, 2016 OK 1. ¶7 Watt and Colbert, JJ., not participating.

801096d4-e340-431f-8525-a51ad3e2900d

In the matter of M.K.T.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF M.K.T.2016 OK 4Case Number: 113110Decided: 01/20/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF M.K.T., C.D.T., and S.A.W., Deprived Children: STATE OF OKLAHOMA, Petitioner/Appellant,v.TRACEY NICOLE PIGG (Natural Mother), CLAYTON WILLBOURN (Natural Father), Respondents/Appellants,andPATTY DUCKWORTH (Foster Mother), Appellant,andS.A.W., Appellant,andCHEROKEE NATION, Intervenor/Appellee. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. III ¶0 The Honorable Wilma Palmer, Special Judge, for the District Court of Tulsa County, ordered the transfer of a minor child S.A.W., from a foster home to a home compliant with the Indian Child Welfare Act. The State, natural father, natural mother, child, and foster mother appealed. The Court of Civil Appeals reversed the order of the district court and the Cherokee Nation sought certiorari. We previously granted certiorari. We hold that appellants failed to satisfy their burden that natural father was not a member of his tribe. The Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. We hold that when a tribe fails to provide timely temporary foster care with an ICWA-compliant home and an ICWA-noncompliant family seeks a permanent placement, the trial court should consider harm to the child resulting from a tribe's untimely motion to move the child to an ICWA-compliant home. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence, and that appellants met this burden. We reverse that portion of the trial court's order directing an ICWA-compliant placement. We hold that the appellants' additional arguments for challenging application of the ICWA are insufficient and affirm the trial court in part, and remand for additional proceedings. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR FURTHER PROCEEDINGS Becki A. Murphy, Murphy Francy PLLC, Tulsa, Oklahoma, for Appellant, Foster Mother.Larisa Grecu-Radu, Assistant District Attorney, Tulsa County Juvenile Bureau, Tulsa, Oklahoma, for Appellant, State of Oklahoma.Kacie R. Cresswell, Owasso, Oklahoma, for Minor Child, S. A. W.Delorus Crawford, Tulsa, Oklahoma, for Natural Mother.Brian Wilkerson, Tulsa, Oklahoma, for Natural Father. Robert Garcia, Assistant Attorney General of Cherokee Nation, Tahlequah, Oklahoma, for Intervenor/Appellee. Chrissi Ross Nimmo, Tahlequah, Oklahoma, for Intervenor/Appellee. EDMONDSON, J. ¶1 The district court ordered the transfer of a minor child, S.A.W., to a foster-adoption home that was in compliance with the Indian Child Welfare Act and the Oklahoma Indian Child Welfare Act, and in the bests interests of the child. Foster mother, natural mother, father, child, and the State appealed. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence; and the evidence presented by appellants was sufficient to satisfy their burden, regardless whether we apply abuse-of-discretion or clear-and-convincing standards. We hold the circumstances of this case do not warrant reversal of the judge's order based upon 10A O.S. § 1-4-812. We hold appellants failed to satisfy their burden challenging natural father's status as not a member of his tribe. The Cherokee Nation met its burden showing the child was subject to the Indian Child Welfare Act. We hold the evidence was sufficient to show an ICWA-noncompliant temporary placement as in the best interests of the child. We affirm the district court's order in part and reverse in part. ¶2 In May 2013, the State placed two-year-old S.A.W. and her two older siblings in emergency protective custody in different homes and filed a petition to adjudicate the children as deprived due to neglect, lack of supervision and exposure to substance abuse. The natural mother is a non-Indian. S.A.W. was placed with foster mother and the placement was not compliant with the Indian Child Welfare Act, (ICWA), (25 U.S.C. §§ 1901-1963). The parties dispute whether the child's father is a member of the tribe and if the child's placement is governed by the ICWA. ¶3 For nine months after the placement of S.A.W., the Oklahoma Department of Human Services (DHS) contacted extended family of both natural mother and natural father to find an ICWA-compliant placement for S.A.W. The family members contacted were either unsuitable or not interested in a placement. DHS sought help from the Cherokee Nation in finding an ICWA-compliant placement for the child. ¶4 In February 2014, DHS recommended that a placement for the child should ultimately lead to a permanent placement because of a plan to seek termination of the parental rights of S.A.W.'s parents. The Cherokee Nation had not had a family available for foster care, but did have an ICWA-compliant family that was interested in adoption of a child. The parental rights of the parents had not been terminated.1 Visitations started with this ICWA-compliant family in April 2014. Visitations ceased with this prospective family, and on the one-year anniversary of the child being taken into custody the Cherokee Nation filed a motion to transfer the child to an ICWA-compliant placement. The trial court held a hearing and on July 21, 2014, the trial court determined that appellants had failed to demonstrate a good cause to deviate from the ICWA placement preferences and also found that it was in the best interests of S.A.W. to move to an ICWA-compliant home. ¶5 The State of Oklahoma, natural mother, natural father, foster mother, and S.A.W. appealed. The Court of Civil Appeals reversed the trial court's decision. The Cherokee Nation sought certiorari from this Court to review the opinion of the Court of Civil Appeals. We vacate the opinion of the Court of Civil Appeals and affirm the order of the District Court in part and reverse in part. ¶6 On appeal, appellants argue the trial court (1) violated the rights of natural mother and natural father to participate in the care, custody, and maintenance of their child; (2) erroneously failed to find good cause to deviate from the ICWA's placement preferences, ordering removal of the child from the foster mother's home; (3) failed to address whether the child was an Indian child for the purposes of the ICWA; (4) failed to address whether the father was no longer a member of the tribe; (5) failed to give statutorily-required "great weight" to the foster mother's quest for custody; and (6) failed to place custody in accordance with the child's best interests. ¶7 The Cherokee Nation responds (1) both parents were represented by counsel and participated in the trial court hearing where they expressed their opinions on the matter, and the trial court considered what they said; (2) no evidence showing good cause to deviate from the ICWA was presented to the trial judge; (3) the trial court did address whether the child was an Indian child for the purposes of the ICWA; and (4) the trial judge properly followed the ICWA and ordered placement according to the bests interests of the child. I. Hearing in the District Court. ¶8 A hearing was held on the Cherokee Nation's motion to move the child to an ICWA-compliant placement. A summary of the testimony is as follows. A. Natural Father ¶9 Natural father testified by telephone with his counsel present. He agreed that he had been "incarcerated during the whole pendency of this case." He was aware of his child's placement with the foster mother, and she had brought the child to visit him twice at the facility where he was incarcerated. The foster mother sent him photos of the child and kept him informed of her activities. He gave an opinion that moving his child "would be harmful for her emotional well-being." He stated his preference that the child remain with the foster mother. ¶10 Natural father also testified he had "filed a tribal relinquishment form" which he had signed. He stated he had filed the form in April or May of 2014 because "I was informed that it would, uh - - it would - - well, it would help keep . . . [the child] where she's at." (Name omitted and explanation added). He said " . . . it was in hopes that, uh, it would take the matter out of - - out of the Tribe's hands." He said the foster mother visited him during his incarceration and brought him the papers to sign and a notary to notarize them. He said he did what he thought was best for the child. He said if his parental rights and those of the natural mother were terminated, then he would prefer the child to be adopted by the foster mother. ¶11 Natural father said he was willing to "disenroll" if it would help keep the child where she's at. He also said he was "definitely not" pressured in any way to sign the tribal relinquishment, and he had signed it of his own free will. He said the Cherokee Nation had brought him papers to enroll the child in the tribe when he had been incarcerated in the county jail. He said the Cherokee Nation had not informed him of the particular facts concerning its proposed placement the child ¶12 When questioned whether he knew that DHS and the Cherokee Nation "had a dual certified home that is ICWA compliant" for the child, he responded that he was unaware of anything about this home. He said he did not know whether the child was "seeing any kind of a counselor or a therapist." ¶13 Counsel for the Cherokee Nation said "a child who is the subject of a custody proceeding cannot be unenrolled during the pendency of that proceeding." He also said that once a person unenrolls, "it's a minimum of five years before you can reenroll." Natural father said he was unaware of these rules. B. DHS Child Welfare Specialist ¶14 A child welfare specialist employed by DHS testified concerning the child's placement with the foster mother since May 2013. He said the placement was not ICWA-compliant. He said the child had developed strong attachment to the foster mother, and the child was thriving in her placement. He said the child was receiving therapy. ¶15 He said he had maintained communication with a tribal worker from August 2013 to February 7, 2014. He said relatives of the child were either not available or disqualified from accepting the child's placement. He said the child was safe and had a healthy attachment with the foster mother. He said the best interests of the child would be served by the child remaining with the foster mother. ¶16 He testified that the child could have handled a transition that placed her with the foster home recommended by the Cherokee Nation if the placement had occurred within two months of DHS taking custody of the child. He said the "level of attachment" at two months is different than the level of attachment after one year and two months with the foster mother. ¶17 He testified that in "maybe January" a concurrent plan for adoption of the child began to be explored. He was asked at what point would the family recommended by the Cherokee Nation have been considered by DHS as a "fost-adopt home" for the child. He responded: "if they had come forward first month, then they would have - - the first month of . . . [the child] coming into DHS custody, then they would have been considered. If it was the second month - - it's difficult to say at what point would they have been considered." He agreed that the home recommended by the Cherokee Nation had been certified by DHS since 2012 and certified by the Cherokee Nation as well. ¶18 He testified of his concern regarding certain behaviors of the child. He was asked "why do none of these behaviors show up in any report that is in this case file?" He responded that he addressed those behaviors with the foster mother. He then said with regard to the child's behavior "I don't think it was important enough to put in the case file. . . . I highlighted some behaviors, and other behaviors I addressed with foster mom." He testified that the child had exhibited aggressive behavior at a daycare, and these reports concerning the daycare he received from the foster mother. On cross-examination he explained that while not everything concerning the child's behavior was in the court file, he had documented his concerns in his separate personal file. He said that some of his concerns he expressed to the District Attorney's office, and some of the information would be in "the DA report." ¶19 He said he transported the child to a DHS office where the child visited with the family recommended by the Cherokee Nation, and "just before the visit ended the child started crying because she wanted her foster mother." ¶20 In the Spring of 2014, he recommended to the foster mother a specific therapist for the child and the foster mother. The therapist started working with the child and foster mother in April 2014. He did not notify "the other attorneys" that the child was seeing a therapist. He did not notify the Cherokee Nation that the child was seeing a therapist. When asked why he did not inform the Cherokee Nation of the therapy sessions, he replied: "it wasn't requested, and I felt that it was in her best interest." When asked if it would have been difficult for the Cherokee Nation to know about the therapist, he replied: "unless I give them reports, it will be difficult for them to know what's going on." He then said that the therapy sessions were something the Cherokee Nation would have known through its visits. ¶21 On cross-examination he stated that the family selected by the Cherokee Nation would not have been considered for foster placement because they had expressed a preference for an only-adoption placement. He said that at that time no parental rights had been terminated relating to the parents of the child, and the family recommended by the Cherokee Nation were interested in adopting the child. He also stated that the ICWA-compliant family was not considered because they were certified "out of Osage County." C. Therapist ¶22 A social worker employed by Saint Francis Hospital, and as a therapist for other organizations, testified. In this latter capacity she met regularly with the child and the foster mother starting in the Spring 2014. The therapist stated that the child had aggressive behavior in kicking her peers and teachers. She received this information from the foster mother but did not follow up with the daycare to find out anything more about the behavior. She also stated that the child had separation anxiety when apart from the foster mother. This too was based upon statements made by the foster mother reporting behavior of the child to the therapist. The therapist said she had not discussed these matters with the child because the child is "not really able to verbalize, very well, her feelings." She testified she had not observed anything that would make her distrust information she received from the foster mother. She also testified that she had personally observed inappropriate behavior of the child when the child was separated from the child's foster mother, and she gave an opinion concerning the child's behavioral expressions of anxiety when the foster mother was away on a business trip. ¶23 The therapist said she reported that the child displays irritability, sadness, and anxiety after visits with her biological family. She said this information came from the foster mother. She said the foster mother provides a structure and routine which is important for the child. The therapist was asked, assuming everything reported about the child was true, "do any of those [behaviors] appear to be extreme in nature?" She responded with the one-word answer: "No." However, on cross-examination she said the child's behaviors, as reported by the foster mother, were typical for children who had been traumatized; they were extreme when compared to a normal three-year-old. ¶24 The therapist was asked if it would be likely for the child "to be able to transition to another foster home successfully if it was done in a careful, nurturing way." She responded that it would be likely that the child would "experience another trauma" because "you will traumatize them [children] every time you move them." The therapist stated that she had observed the child interact with the foster mother and foster mother's roommates, but had not observed the child interact with the people in the home proposed by the Cherokee Nation. When asked if she had any reason to believe that the family recommended by the Cherokee Nation wouldn't be able to attend to the child's physical or emotional needs, she responded with "I don't have any reason to believe they would, either." She said the child was "well cared for" by the foster mother, and the child was healthy and happy in the care of the foster mother. D. Natural Mother ¶25 The natural mother testified. She expressed her preference for the child to remain with the foster mother. She said the foster mother takes good care of the child and a bond had grown between the child and the foster mother. She said if parental rights were ever terminated she would want the child to be with the foster mother. On cross-examination she testified concerning her knowledge of her daughter's daily activities and visits with her child. E. Cherokee Nation Social Worker ¶26 He testified that the Cherokee Nation was trying to make the child's placement ICWA-compliant.2 The Cherokee Nation made a recommendation on or about February 7, 2014, that the child be moved. He was asked why the Cherokee nation wanted the child to be moved to an ICWA-compliant home. He responded with several statements explaining why the ICWA was created. ¶27 He was asked to identify a photocopy of a "Western Cherokee Nation" identification card with a photograph thereon and a name corresponding to the foster mother. He stated the Western Cherokee Nation is not a federally recognized tribe and not recognized by the Cherokee Nation.3 He was questioned on how well he knew the foster mother and the type of home she provided the child. He said he knew the foster mother was previously employed by the Cherokee Nation. ¶28 He said he had, on behalf of the Cherokee Nation, previously recommended a deviation from the ICWA guidelines with regard to placement. He said the parents have been adjudicated as depriving their children, and they were not able to make the daily decisions. ¶29 He said the Cherokee Nation had access to an information database since approximately April 26, 2014, wherein it is revealed that the child was receiving therapy. He said the database also documented around April 2014 certain troubling behaviors of the child. He said the tribe typically has an intention that DHS will inform the tribe if something traumatic occurs or an issue arises concerning a child who is a member of the tribe. He said the last time he saw the child was during a visitation with the ICWA-compliant family in April 2014. F. Foster Mother ¶30 The foster mother's home is not an ICWA-compliant home certified by the Cherokee Nation or DHS. Counsel for the State and the foster mother argued that the foster mother had a "Western Cherokee culture" and that culture was an Indian culture, although the "Western Cherokee Nation" is not a federally recognized tribe. Counsel for the foster mother and the State agreed that the "Western Cherokee Nation" is not a federally recognized tribe. ¶31 Foster mother stated she was dating a Cherokee whom she has known for seven years. Her roommate has passed the necessary background checks and completed the foster parent training. She was employed by the Cherokee Nation from 2006 until March 2014. On April 16, 2014, DHS notified her that they intended for the child to be moved to an ICWA-compliant home, but the notice was withdrawn the following day. ¶32 She testified about the number of people in her life and that of the child, and the status of these people as members of various tribes. For example, she explained that the child's two alternate caregivers are Cherokee and Choctaw/Chickasaw. She explained she had many friends and acquaintances who are tribal citizens. She testified that she attends many community events and volunteers "through the Cherokee Nation." She had a lot of ties to the tribe and she knew what resources were available "to keep her [the child] connected to that culture." She testified concerning the nature of her former employment with the Cherokee Nation, and how that employment gave her knowledge of the cultural resources available for the child. She said she could teach the child about the child's Cherokee culture. ¶33 She testified on her efforts in helping the child meet with her biological mother and siblings. She said she did not pressure or promise the natural father any benefit for him to relinquish his membership status with the Cherokee Nation. She said she was the person who requested a therapist for the child because "there might be some trauma she has" and "I understood there was an - a potential to move her, if that happened I wanted somebody to be a constant for her that she could talk to and - counsel her through a transition." ¶34 On cross-examination she explained that she was concerned with aggressive conduct that included kicking, talking back, and some spitting. She said the conduct appeared before the visits with the ICWA-compliant family but "there are some additional ones since then." G. Indian Child Welfare Expert ¶35 The witness is employed by the Cherokee Nation Indian Child Welfare, and the parties stipulated as to her qualifications as an expert in Indian Child Welfare. She supervises several Cherokee child welfare workers. She was the supervisor of the Cherokee child welfare worker who had been assigned to the child's case at the beginning until that worker went on family leave in February 2014; thereafter she supervised a replacement worker. ¶36 She explained that she had a phone conversation with the DHS Child Welfare Specialist in March of 2014 to notify him of the Cherokee Nation approved home and to ask him if anything had been put in place to start visitation, "or just what the plan was for it." She said she followed up the conversation about a week to ten days later with an email dated March 18, 2014. She testified that she inquired of the ICWA-compliant family and they informed her that the DHS worker had made contact, but had not set up any visits. She testified that visitation with this family did not occur until after several emails from her to the DHS worker requesting visitation to start. She said the first visit was approximately April 16, 2014.4 She testified on the positive behavior of the child during the second visit with the ICWA-compliant family. She said she transported the child to place where the visitation occurred, talked with the child during the occasion, and observed the visitation. ¶37 She testified that it was in the best interests of the child to be placed in an ICWA-compliant tribal home: "she needs to know where she came from, and not just superficially, but the cultural aspects that come from people who have been raised in - - in their culture." She testified that she had worked cases where a child was transitioned into a new home "after spending significant periods of time in a different foster home." She said that she had success with those transitions "where the current foster home and the new foster home are willing to work together and to do a transition plan . . . it's not successful for a child to just yank them out of one home and put them in another." She responded affirmatively to counsel's question that she was asking the district court "to find that good cause does not exist to deviate from the placement preferences and to begin the transition process for . . . [the child] into the . . . [ICWA-compliant family's] home." She said this transition was in the best interests of the child. ¶38 On cross-examination she said she had checked with the registration department of the Cherokee Nation and at that time relinquishment of tribal status by the natural father had not been recognized by the Cherokee Nation. She was asked concerning the registration department "Did they ever actually receive the requests [for change in membership status]?" She responded, "not that I know of." She was asked if she would be surprised to learn that a request for change in membership had been sent to her as an email attachment from a DHS employee. She indicated a copy of the father's form could have been in an email attachment she received. She testified that tribal membership is handled by the tribe's registrar's office, and she is not employed in that office. ¶39 She testified her recommendation to move the child would not be altered if the foster mother sought to be placed on the membership roll of the Cherokee Nation. She said the child needed to be transitioned for a permanent placement, the process of being placed on the tribal roll does not happen quickly, and waiting for years was not in the best interests of the child. She stated that her failures in moving children occur "when a child is immediately removed from a home and immediately placed in another one." II. The Indian Child Welfare Act and Appellate Review ¶40 On May 6, 2013, the State of Oklahoma assumed custody of S.A.W. and one year later on May 6, 2014, the Cherokee Nation filed a motion to move the child to an ICWA-compliant placement with a family seeking to adopt. No parental rights had been terminated at this time. On the day of the hearing, a joint objection was filed by the biological parents, foster mother, and State of Oklahoma, with a request for the trial court to find good cause to deny a change in the child's placement. The trial judge granted the motion by the Cherokee Nation and ordered that the move "be structured over time," the visits with the ICWA-compliant family to continue, and "I'm asking the Department of Human Services to work with the Cherokee Nation, as well as the foster parent, in developing a transition plan for this minor child." The trial judge noted the objection to the judge's ruling by the foster mother, the child's attorney, and the State. ¶41 We explained in Matter of Baby Boy L, the federal Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) was enacted in response to concerns regarding the consequences to Indian children, Indian families, and Indian tribes of state child welfare practices which had separated Indian children from their families and tribes.5 The Act provides "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which reflect the unique values of Indian culture."6 ¶42 The Oklahoma Indian Child Welfare Act (OICWA), 10 O. S. 2011 §§ 40-40.9, was created to clarify state policies and procedures regarding the implementation of the federal Indian Child Welfare Act.7 The Oklahoma Act states that the placement preferences specified in § 1915 of the federal Act, "shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements."8 We have recently stated "Neither the purpose of the Federal Act nor the Oklahoma Act can be achieved without notice to the tribe or consideration of the placement preferences."9 ¶43 The preferences in the ICWA for adoptive, preadoptive, and foster care, placements are set forth in 25 U.S.C.A. § 1915: (a) Adoptive placements; preferencesIn any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families. (b) Foster care or preadoptive placements; criteria; preferencesAny child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with--(i) a member of the Indian child's extended family;(ii) a foster home licensed, approved, or specified by the Indian child's tribe;(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs. (c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of preferencesIn the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences. (d) Social and cultural standards applicableThe standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties. (e) Record of placement; availabilityA record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the Secretary or the Indian child's tribe. Section 1915 states that these statutory preferences are to be followed "in the absence of good cause to the contrary."10 ¶44 Section 1903 of the ICWA defines three forms of child placement in child custody proceedings governed by the Act, foster care placement [25 U.S.C.A. § 1903(1)(i)],11 preadoptive placement [ 25 U.S.C.A. § 1903(1)(iii)],12 and adoptive placement [25 U.S.C.A. § 1903(1)(iv)].13 The preferences in § 1915 place these three types of placement into two categories of placement preferences, (1) adoptive [§ 1915 (a)], and (2) foster care and preadoptive [§ 1915(b)]. It is this latter category of preferences for foster care and preadoptive placements that is at issue in this case because of its procedural posture. However, both the foster mother and the ICWA-compliant family acting through the tribe desired to adopt the child. The Oklahoma Indian Child Welfare Act requires a court to use the § 1915 placement preferences,14 ¶45 In 1979, the Bureau of Indian Affairs (BIA) published in the Federal Register its interpretation of the ICWA for application of the Act in state courts, Guidelines for State Courts; Indian Child Custody Proceedings" (Guidelines).15 Use of the Guidelines is not mandatory, but they are instructive or advisory in nature; we have used them when construing language in the ICWA,16 and they are the starting point for a best-interests-of-the-child analysis. The Guidelines were updated in 2015.17 Although they are in the nature of interpretive rules18 and are instructive and have the potential to be applied retroactively,19 because the updated Guidelines were created after the trial court hearing and no party has pointed to authority for their use in this proceeding, we apply the Guidelines in effect on the date of the hearing in the trial court when the decision for placement was made.20 ¶46 When applying the "good cause" exception to the placement preferences in 25 U.S.C. § 1915, the Guidelines provide: (a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations: (i) The request of the biological parents or the child when the child is of sufficient age.(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. 44 Fed.Reg. 67,594. Part F., Dispositions, at F. 3 (a) (i-iii), Good Cause To Modify Preferences. The Guidelines also provide the burden of establishing the existence of good cause not to follow the order of preferences ... shall be on the party urging that the preferences not be followed.21 ¶47 In the controversy before us, the trial court directed placement according to the ICWA and the burden of showing the existence of good cause not to follow the order of preferences was on the State, foster mother, and biological parents.22 The parties unite in arguing that we should apply an abuse-of-discretion standard for appellate review of the trial court's order.23 While this Court has used an abuse-of-discretion review for an order for visitation and placement of a child who has been adjudicated as deprived,24 we conclude that an order directing an ICWA-noncompliant placement must be supported by clear and convincing evidence.25 ¶48 We recently addressed the proof necessary to support a trial court's finding of "good cause" to deny a transfer from state court to tribal court a proceeding adjudicating foster care placement and termination of parental rights involving an Indian child.26 We noted the ICWA requirement for transferring a proceeding involving an Indian child from a state court to a tribal court as expressed in 25 U.S.C.A. § 1911(b): "The court 'shall transfer' foster care placement and termination of parental rights proceedings absent objections and a showing of good cause to the contrary."27 We explained that in parental termination cases, "clear and convincing evidence" is the standard by which the termination-seeking claimant must prove the potential for harm to the child caused by a parent's abuse or neglect.28 We characterized this proof as more substantial than that afforded by the clear weight of the evidence or abuse of discretion standards.29 We explained: . . . we see a similarity in the potential for harm to the relationship between an Indian child and the child's tribe if the standard of proof required for "good cause" not to transfer is inadequate. It could allow a state court to sever the relationship between child and tribe and to determine the future course of Indian children's lives without consideration of the "unique values of Indian culture" being reflected in their ultimate placement. . . The "clear and convincing" standard is the appropriate standard to use here. In re M.S., 2010 OK 46, ¶ 19, 237 P.3d at 167, citations omitted. A similar issue is before us today; whether the burden of showing good cause to deviate from the ICWA-specified child placement preferences must be shown by clear and convincing evidence, or by some other standard. Appellants argue they satisfied their evidentiary burden. ¶49 An Idaho court has noted that the introductory language to the BIA Guidelines regarding the ICWA states that use of the phrase "good cause" was designed to provide state courts with flexibility in determining the disposition of a placement proceeding, and applied an abuse-of-discretion standard.30 A California court has concluded that a clear-and-convincing standard should apply because the Guidelines state that custody proceedings involving Indian children "shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to [the ICWA placement] preferences," and that any ambiguities in the ICWA statutes "shall be resolved in favor of a result that is most consistent with these preferences."31 ¶50 One function of a standard of proof in the realm of factfinding is to instruct the factfinder concerning the degree of confidence our society thinks the factfinder should have in the correctness of factual conclusions for a particular type of adjudication.32 Preponderance of the evidence is a standard commonly used in private disputes where the parties equally share the risk of error.33 We see a potential for harm to the relationship between an Indian child and the child's tribe if the standard of proof required for "good cause" exceptions for an ICWA-compliant foster placement is inadequate. An inadequate standard could allow a state court to sever the relationship between child and tribe and determine the future course of Indian children's lives without consideration of the unique values of Indian culture being reflected in their placement of the children. Using the clear-and-convincing standard for a decision to make an ICWA-noncompliant placement serves the dual purpose of giving a state court flexibility while also allocating the risk of error in accordance with the language in the Act that was designed for protecting a child-tribe relationship. ¶51 The parties litigated the placement of the child with the expectation that the decision would be reviewed using an abuse-of-discretion standard. Although we hold that the proper standard is clear and convincing evidence, we need not remand for a redetermination using this standard because evidence presented by appellants was sufficient to satisfy a clear an convincing burden for continued foster placement with the foster mother. III. Appellants' Evidentiary Burden and Arguments Concerning "Best Interests" ¶52 Appellants' combined appellate brief argues that the trial court violated "the parents' fundamental right to participate in child rearing, in giving them no voice regarding the placement of their child." Their argument does not challenge the constitutionality of the ICWA, but the importance the ICWA gives to the child-tribe relationship: "The position of the tribe was given greater importance and value, by the Court, than the rights of the parents even though testimony was clear as 'good cause.'" The Cherokee Nation wants the child to remain within its cultural community, as defined by the placement preferences in the ICWA, despite the desire of the parents that the child be placed outside that statutorily-defined community. ¶53 In its 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield, the High Court underscored the central importance of the relationship between an Indian child and his or her tribe, independent of any parental relationship. The Court explained that Congress wanted application of the ICWA to protect tribal survival "Even in cases where the parents consented to adoption" outside of the child's tribe, and Congress had concerns about tribal survival "beyond the wishes of individual's parents."34 We quoted from this passage in our 2004 opinion, In the Matter of Baby Boy L.,35 and noted a legislative amendment to 10 O.S. § 40.136 when we explained that Indian tribes and nations have a valid governmental interest in Indian children and a continued cultural relationship between the child and that child's tribe.37 ¶54 They cite Cherokee Nation v. Nomura,38 and contend that a birth-parent's preference for placement may be sufficient to show good cause for an ICWA-noncompliant placement. Cherokee Nation v. Nomura, supra, cited an opinion from a Kansas court as an example of a court using parental preference for adoption placement with a non-Indian family may be sufficient to invoke the "good cause" exception.39 The Kansas court noted the language in the Guidelines specifying three areas a court should consider when determining good cause to make an ICWA-noncompliant placement: (i) The request of the biological parents or the child when the child is of sufficient age; (ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness; and (iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.40 ¶55 Section 1915(c) clearly states that a parent's preference for child placement should be "considered."41 The Guidelines recognize parental preference for child placement. One consequence made clear by the ICWA interests recognized in Mississippi Band of Choctaw Indians v. Holyfield, supra, and In the Matter of Baby Boy L., supra, is that parent's choice or desire for placement of his or her child may be considered, but such selection does not have the legal effect of necessarily superseding the interests of the tribe when a court places a child for foster care. Parental preference is one factor the trial court considers, but that preference does not control the decision made by the trial court. ¶56 The biological parents, DHS welfare specialist, therapist, and foster mother testified, (1) the child was healthy, happy, in a stable environment, and leaving the child with the foster mother was in the best interests of the child; and (2) the child had emotional needs exhibited by aggressive behavior at a daycare, separation anxiety when apart from the foster mother, and placement with the tribe-recommended family should not be granted by the court and was not in the best interests of the child. ¶57 The Guidelines are the starting point for a best-interests-of-the-child analysis. The ICWA's Congressional declaration of policy states that public policy protects the "best interests of Indian children" and the ICWA was created to promote this policy.42 Our Legislature has stated that the bests interests of the child should be considered whenever it is necessary for a child to be placed outside the home pursuant to the Oklahoma Children's Code,43 and these interests include but are not limited to the development of the moral, emotional, spiritual, mental, social, educational, and physical well-being of the child.44 The best interests of a child are paramount in a proceeding pursuant to the Oklahoma Children's Code.45 While the ICWA should not be construed to produce a result contrary to the bests interests of the child under a State law analysis, neither should a State law analysis produce an "'Anglo' standard" for bests interests of the child that conflicts with the ICWA.46 The ICWA placement preferences are designed to achieve the bests interests of the child and they are consistent with State law.47 An ICWA-compliant placement preference is presumed to be in a child's best interests, and appellants' evidence on best interests of the child and deviation from the Guidelines is more properly considered as an attempt to show the second factor of the Guidelines: The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness, as grounds to support an ICWA-noncompliant placement. ¶58 The DHS child welfare specialist stated that he would not consider any family recommended by the Cherokee Nation for placement of a Cherokee child unless that family came forward to accept placement of that child during the first month the child was in DHS custody. His testimony on this point was in the form of an irrebutable presumption that any child at the age of S.A.W. had an emotional need that should prevent a change in custody more than one month after the first initial placement. His views would turn every initial temporary placement as the presumptive proper long-term placement. His testimony appears to be based upon an improper assumption that a child's emotional need for permanence48 in placement could only be met through placement during the initial one month DHS custody. The Children's Code attempts to promote stability for foster children and limit repeated placements, but the specialist's one-month rule is inconsistent with provisions in that Code.49 On the other hand and as we explain herein, we view the tribe's conduct as not in the child's best interests when (1) the tribe failed to timely provide a temporary foster care ICWA-compliant placement, and (2) sought to move the child to an ICWA-family wanting to adopt a child but S.A.W.'s parents had not had their parental rights terminated. ¶59 The assumption of the DHS child welfare specialist is an example of one part of the often debated larger issue whether a child's need for permanence is, or under what conditions it may become, "an extraordinary emotional need" in the ICWA child placements, and whether this issue is determined based upon prevailing cultural and social standards of the child's Indian community as required by the ICWA.50 The Guidelines require a particularized showing of the extraordinary emotional and physical needs of the particular child when considering the types of placement, and they do not create or authorize the method suggested by the DHS Child Welfare Specialist. His testimony on this point is not a particularized assessment on the needs of this child. ¶60 The testimony of the DHS welfare specialist, therapist, and foster mother addressed whether the child had emotional needs exhibited by aggressive behavior at a daycare and separation anxiety when apart from the foster mother. The Guidelines state that extraordinary physical or emotional needs may be used to justify an ICWA-noncompliant placement, and the therapist said the child's behaviors were not extreme for a child in her circumstances, but extreme when compared to a normal three-year-old. The therapist testified that she had no idea whether the proposed ICWA-compliant placement would be unable to satisfy the emotional and physical needs of the child, apart from the issues relating to the separation of the child from the foster mother. ¶61 Generally, a burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.51 The Cherokee Nation filed a request for an ICWA-compliant placement. Any facts necessary as predicate for such a placement had to be of record in the trial court proceeding, such as S.A.W. being an "Indian child" and the proceeding being a "child custody proceeding" pursuant to the ICWA.52 ¶62 Appellants' appellate brief states that the trial judge told them the State had the burden of proof to show why the child should not be moved to an ICWA-compliant home. The trial judge is correct. Appellants had the burden to show that the proposed ICWA-compliant placement was not in the best interests of the child, i.e., evidence showing that the placement would not satisfy a serious emotional or physical need of the child.53 Appellants were the ones making this claim. They were the parties arguing that a serious emotional need exists for the child, and further, that they have the proposed solution for this identified need with the proper placement and plan for the child. ¶63 Appellants were also required to introduce evidence that the proposed ICWA-compliant placement would not fulfill this need of the child which their expert witnesses said made placement with the foster mother to be the placement in the child's best interests. Their testimony concerning best interests of the child was produced in the context of objecting to a request for placement with an ICWA-compliant family. The ICWA and Guidelines are clear that if a Indian child's emotional and physical needs may be equally satisfied by an ICWA-compliant placement and an ICWA-noncompliant placement, then the ICWA-compliant placement is preferred. The single argument made by the appellants is that preference in placement should be with the foster mother because of the time the foster mother had custody, the bonds between child and foster mother, and foster mother's desire for permanent placement. There was no testimony at that time relating to the ICWA-compliant family's ability to provide for the emotional and physical needs of the child. ¶64 Because of factors showing the extraordinary nature of this controversy involving a child of tender years, we have taken judicial notice of the docket of the trial court showing events while this appeal has been pending.54 The docket shows that as of December 2105 the natural father's parental rights have not been terminated, and there is currently no ICWA-compliant family for placement of the child. ¶65 In addition to the ICWA, Congress has created other statutory schemes concerning child welfare policy and practice, such as the Adoption Assistance and Child Welfare Act of 1980 (AACWA)55 and the Adoption and Safe Families Act (ASFA) of 1997,56 and its amendments. Two fundamental principles are paramount pursuant to the ASFA, (1) the child's health and safety,57 and (2) that foster care should be temporary with a permanency hearing no later than twelve months after the child enters foster care.58 The Oklahoma Children's Code refers to different types of hearings in § 1-1-105, e.g., an "adjudicatory hearing" (§ 1-4-601), "dispositional hearing" (§ 1-4-706), "emergency custody hearing" (§ 1-4-203), "permanency hearing" (§ 1-4-811), and "review hearing" (§1-4-807).59 While a permanency hearing may be held concurrently with a dispositional hearing or a review hearing,60 at a permanency hearing the court "shall" determine the appropriate permanency goal for the child and order completion of all steps necessary to finalize the plan. For a § 1-4-811 permanency plan the trial court "shall" (1) plan for reunification with the child's parent(s), or (2) order placement for adoption after termination of parental rights, or (3) placement with the person who will be the permanent guardian, or (4) placement in custody of the DHS under a planned alternative permanent placement; and the trial court must make certain written findings.61 The motion requesting an ICWA-compliant placement, the transcript of the hearing, and the trial judge's order clearly show that the hearing was not conducted for the purposes and findings of a § 1-4-811 permanency hearing. ¶66 A permanency hearing is to be held "six (6) months after placing the child in out-of-home placements and every six (6) months thereafter." 10A O.S.Supp. 2015 (A)(1)(a).62 The federal policy in the ASFA is for a court to have a plan for permanency of placement twelve months after a child has entered foster care, although the permanency plan may include parental reunification,63 and the Act recognizes that termination of parental rights is a decision often made after this time period.64 Congress has recognized that parent-child bonds are created in foster care relationships and that speed in permanency placement is a federally-mandated goal. In the present case, where the Cherokee Nation provided no family for temporary ICWA-compliant foster care until its formal application filed one year after the State assumed custody of the child and then states in a District Court filing that during the pendency of the appeal it has no current family for an ICWA-compliant placement at a time 2 and 1/2 years after the State assumed custody of the child; the actions of the tribe are inconsistent with the federal policy that Congress created with the ASFA that was designed to diminish the risk of children developing emotional attachments and subsequent behavioral problems caused in part by adults failing to provide timely parental care. The propriety of applying a specific ASFA statute to the tribe is not before us in this proceeding,65 but we must note that a tribe's efforts for a court-ordered ICWA-compliant placement should be based upon a placement that is available and appropriate for providing timely parental care. An Indian child is entitled to permanency in placement even when the placement is not based upon ASFA requirements but by the ICWA-authorized tribal cultural considerations.66 ¶67 The Cherokee Nation argued that (1) the child had no serious emotional or physical need, (2) no such need had appeared in certain reports on the child prior to the date of the hearing, and (3) the family they proposed could fulfill the needs of the child. Appellants filed their objection on the day of the hearing and their expert witnesses testified as to what they perceived to be the serious emotional needs of the child. Because appellants are the parties raising the claim of a serious emotional need that cannot be met by an ICWA-compliant placement, they must support that claim with some evidence showing the particular need of the child which they have identified. Their burden is not an instance to plead and prove a negative, but the affirmative burden to show (1) a serious emotional or physical need of the child, (2) a course of action for remedying that need via the placement with the foster mother, e.g., placement with counseling, rehabilitative services, etc.,67 and (3) some fact or facts showing that the ICWA-compliant placement is inconsistent with the child's needed plan or treatment. Appellants satisfied this burden in the trial court. ¶68 Appellants argued in the trial court that the foster mother had preference in placement based solely upon time of custody by foster mother and the emotional attachment of the child and the foster mother. This argument fairly comprises a claim that the proposed ICWA-compliant family may not satisfy the child's emotional needs. ¶69 Appellants rely on testimony from the child's therapist. When asked whether removal of the child from the foster home, "regardless of how it's done," would cause the child to experience "yet another trauma" the therapist responded "It's likely." Some of the therapist's testimony concerned emotional attachment of children in general, and some testimony was concerning the child in this case. She stated that children who experience multiple traumas have a much greater problem and difficulty in emotional attachment. She then stated that she characterized the child as having multiple traumas. Her testimony may be read as stating that this child will "exponentially" "have difficulty attaching" to a new family. ¶70 The Cherokee Nation Indian Child Welfare specialist testified on the positive behavior of the child during the second visit with the ICWA-compliant family. She said she transported the child to place where the visitation occurred, talked with the child during the occasion, and observed the visitation. She testified that a child could be transferred successfully if the foster home cooperated. She did not provide an opinion on the level of attachment between the child and the foster mother. The evidence before the trial judge was conflicting on the child's reaction to the proposed family. ¶71 It has been noted that courts have struggled with accommodating the statutory goals of the ICWA while simultaneously protecting children's interests in remaining in a stable and secure placement.68 This struggle has often occurred in the context of a non-Indian custodian arguing that emotional attachment between the custodian and the child outweighs the interest the child's tribe has in an ICWA-compliant placement. An opinion from Montana has held that emotional attachment between a non-Indian custodian and an Indian child should not necessarily outweigh the interest of the tribe;69 and an opinion from Minnesota has held that a child's need for permanence in placement may come from attachment to the child's tribe.70 An opinion from Alaska examined the testimony of the expert witnesses, and noted that one of the children met the criteria for emotionally disturbed children, and the trial court evidence showed that placement change "would cause them [the children] special harm."71 The Alaska court noted specially that its result was consistent with the Minnesota opinion, noting that in the latter case "the finding of good cause was rejected because the children's special needs were not established by expert testimony from persons knowledgeable about Native culture."72 ¶72 In the case before us today, there was no evidence in the trial court that the child was emotionally disturbed as in the Alaska opinion. But there was a showing that the child's attachment to her foster mother was of such a nature that it precluded the possibility of a normal and timely emotional attachment to the proposed ICWA-compliant family who is apparently no longer being considered for placement. The evidence before the trial judge is that the ICWA-compliant family was interested in custody provided that adoption would ultimately follow, although the child's availability for adoption was not a certainty at the time of the hearing. The evidence was sufficient to show that the trial judge was required to deny the Cherokee Nation's motion for an ICWA-compliant placement based upon the emotional attachment of the child to her foster mother. We accordingly reverse the order of the District Court directing an ICWA-compliant placement. ¶73 Because the matter is remanded for further proceedings, including appropriate application of the ICWA, and appellants argue that the ICWA does not apply, we address the remaining challenges made to the trial court's order by the appellants. IV. Application of an Adoption Statute ¶74 Appellants make several other arguments and we address them. Appellants rely on 10A O.S. 2011 § 1-4-812 B. & C., a statute on the eligibility of a foster parent to adopt a child in the care of the foster parent. A. During any permanency hearing, if it is determined by the court that a child should be placed for adoption, the foster parent of the child shall be considered eligible to adopt the child, if the foster parent meets established eligibility requirements pursuant to this section.B. If the child has resided with a foster parent for at least one (1) year, the court shall give great weight to the foster parent in the adoption consideration for the child unless there is an existing loving emotional bond with a relative of the child by blood or marriage who is willing, able, and eligible to adopt the child.C. In making such determination, the court shall consider whether the child has become integrated into the foster family to the extent that the child's familial identity is with the foster family, and whether the foster family is able and willing permanently to treat the child as a member of the family. The court shall consider, without limitation: 1. The love, affection, and other emotional ties existing between the child and the relatives of the child, and the child's ties with the foster family;2. The capacity and disposition of the child's relatives as compared with that of the foster family to give the child love, affection, and guidance and to continue the education of the child;3. The length of time a child has lived in a stable, satisfactory foster home and the desirability of the child's continuing to live in that environment;4. The physical and mental health of the relatives of the child as compared with that of the foster family;5. The experiences of the child in the home, school, and community, both when with the parents from whom the child was removed and when with the foster family;6. The age and preference of the child;7. The long-term best interests of the child; and8. Any other factor considered by the court to be relevant to a particular placement of the child. 10A O.S.2011 § 1-4-812. The Cherokee Nation does not address whether a foster parent's § 1-4-812 opportunity for adoption should be considered in a hearing for the purpose of an ICWA-compliant placement. Assuming, but not deciding, that a foster parent could assert his or her § 1-4-812 opportunity to adopt as consideration for placement in an ICWA-compliant placement hearing, we hold that the circumstances of this case do not warrant reversal of the judge's order based upon § 1-4-812. ¶75 Appellants indicate that the § 1-4-812 B. "great weight to the foster parent in the adoption consideration" after a one-year placement trumps the ICWA placement preferences. Section 1-4-812 recognizes the possibility of emotional bonds created during a foster placement.73 However, it is also important to understand emotional and attachment bonds created during foster placement from the perspective of the child's tribe. The ICWA expressly requires this consideration.74 The Cherokee Nation child welfare specialist testified she had worked cases where a child was transitioned into a new home after spending significant periods of time in a different foster home, and she had success with those transitions. There was evidence presented by the tribe on how it viewed emotional attachments of children generally, and the how this specific child acted in the presence of the proposed family. There was evidence on the emotional bonds between the child and the foster mother presented by appellants. Section 1-4-812 does not create a bar to an ICWA-placement after a one-year foster care non-ICWA placement. Application of the § 1-4-812 "great weight to the foster parent in the adoption consideration" is not given priority over the adoption and placement preferences expressly stated in the federal statute, 25 U.S.C.A. § 1915, and the preference in the state statute does not, by itself, require reversal of the trial court's order. V. Child's Status as an Indian Child ¶76 Appellants make several arguments based upon the biological father's status with the Cherokee Nation. They state he signed a document stating he relinquished his membership in the Cherokee Nation. They state this fact shows his child is no longer a member of the tribe and an ICWA placement hearing was improper. They argue the trial court was without authority to make an ICWA placement.75 ¶77 Appellants state the fact of the biological father's execution of a document relinquishing his membership in the tribe. Appellants rely upon United States, ex rel. Standing Bear v. Crook, 5 Dill. 453, 25 Fed. Cases 695 (C.C.D. Neb. 1879) (No. 14,891). One federal court referenced Felix S. Cohen's well-known book on Indian law, and noted that Standing Bear is a famous case "in which an Indian secured a writ of habeas corpus directed against a general of the United States Army, to prevent his removal to Indian Territory, the court found that the petitioner, Standing Bear, had severed his relationship with his tribe and was, therefore, not subject to the provisions of any treaties or legislation concerned with the removal of the tribe to Indian Territory."76 Quoting from Cohen, the court noted that: "Tribal membership is a bilateral relation, depending for its existence not only upon the action of the tribe but also upon the action of the individual concerned. A member of any Indian tribe is at liberty to terminate the tribal relationship whenever he or she so chooses, although such termination will not be lightly inferred."77 ¶78 We have no doubt, as a general principle, a member of an Indian tribe may repudiate his or her membership. Indeed, Congress in the past has used a tribal member's repudiation of tribal relations as a basis for terminating future tribal benefits for that person.78 Appellants raise a general principle concerning a member's right to disassociate from the member's tribe, and the fact that the biological father executed a document stating such intention. But they fail to address the issue whether this act by the father was recognized, as a matter of Cherokee Nation law or tribal custom, as a change in the father's tribal status or the child's status as a member or potential member of the tribe. Further, they do not address, beyond the assertion of the naked right to resign, whether any failure by the tribe to recognize the father's repudiation of membership by the Cherokee Nation was improper, as we now explain. ¶79 In two separate 1978 opinions, United States v. Wheeler 79 and Santa Clara Pueblo v. Martinez,80 the United States Supreme Court clearly said that a tribe possesses the power to determine tribal membership, unless that power has been limited by treaty or federal statute. The Court's opinions relied upon its previous opinions stretching back in time to 1897 and included a 1906 opinion involving the Cherokee Nation.81 In Santa Clara Pueblo v. Martinez, the U. S. Supreme Court noted Indian tribes are "'distinct, independent political communities, retaining their original natural rights' in matters of local self-government," and part of this self-government was the power "to make their own substantive law in internal matters," including membership in the tribe.82 Appellants cite no federal statute or treaty limiting the power of the Cherokee Nation to determine who is a member of their tribe. ¶80 For illustrative purposes and concerning membership in an association, we have explained "an individual may resign from an association as he or she sees fit, subject to financial obligations owing the association, where there are no rules or bylaws restricting the right to resign."83 We explained (1) Where an association has bylaws and rules they constitute a contract between the members, and membership is regulated by the terms of the contract; (2) The rules of an association governing resignation may be enforced against the member; (3) The rules of an association may not unconstitutionally preclude a resignation; and (4) The rules governing a resignation of a person from an association may not be enforced in an arbitrary or capricious manner.84 ¶81 An Indian tribe may, similar to an association governed by Oklahoma law,85 restrict a member's right to resign from his or her tribal association by requiring the member to do more than simply submit a document to some tribal official stating his or her intention to relinquish membership.86 We stress this point because appellants argue at length the father's execution of the document and providing it to his tribe should be legally sufficient for changing his membership status and recognized by Oklahoma state courts. But their argument and evidence do not address whether the tribe requires more for a change in membership than what we have in this case. Because, as a matter of law, tribal membership and procedures relating thereto are determined by the tribe, the record on appeal is insufficient to show whether the father's resignation from membership in the tribe was effective or whether the child's status was altered by the father's actions. ¶82 Appellants cite an Idaho case, Matter of Baby Boy Doe,87 but it does not assist their argument. While a state court may not require a tribe to make a determination that a child is a member or eligible for membership in a tribe, the court recognized the application of the BIA Guidelines by a state court when determining whether the ICWA applies. B.1. Determination That a Child is an Indian(a) When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe....(b)(i) The determination by a tribe that a child ... is or is not eligible for membership in that tribe ... is conclusive. Matter of Baby Boy Doe, 849 P.2d at 930, citing 44 Fed.Reg. 67,584 (1979). United States v. Wheeler, supra, Santa Clara Pueblo v. Martinez, supra, and these Guidelines make the determination of the tribe "conclusive" on the issue whether the child is an Indian child for application of the ICWA. ¶83 Because we hold that appellants did not show the requirements for relinquishment of membership in the Cherokee Nation and if father met them, we need not reach the issue whether a State court has jurisdiction to adjudicate a claim that a tribe wrongfully declined to process a request for relinquishment of membership and whether an ICWA-status is altered by the tribe's conduct.88 A. What the Record Does Not Show ¶84 The record on appeal is insufficient for an argument raised on appeal by the tribe in their answer brief, as well as an argument raised by appellants in their reply brief. We first address the tribe's argument. ¶85 During the hearing, counsel for the Cherokee Nation said "a child who is the subject of a custody proceeding cannot be unenrolled during the pendency of that proceeding." Counsel did not provide a citation to any federal or Cherokee Nation law in support of this statement. Argument of counsel is not evidence.89 Counsel also refers the Court to a website containing the Cherokee Nation Citizenship Act, LA-16-02, effective May 13, 2002, which apparently, for example, provides for filing with the Registrar the tribe-approved document for relinquishment of membership/citizenship, representation by a sponsor or agent, a hearing with testimony taken concerning the request, and a possibility of a best-interests-of-the-child determination. ¶86 In 1926, this Court stated that state courts will take judicial notice of the statute laws of the Five Civilized Tribes.90 We are asked in an appellate answer brief to take judicial notice of a document on the Cherokee Nation's website.91 While an appellee may argue on appeal that in spite of errors the correctness of the trial court's decision requires affirming the order,92 and an appellate court will affirm a correct judgment on any applicable theory,93 "we are unable to address issues clearly outside the record" that are raised by appellee for the first time on appeal.94 ¶87 In Panama Processes v. Cities Service Co.,95 we explained the process for taking notice of foreign law. The trial court may take judicial notice of a foreign country's laws if it can be properly informed of its terms. The applicability and tenor of foreign law is a matter for the court. If the trial court cannot be properly informed of the foreign country's law from reference to its sources, the state of that law is subject to the ordinary proof process as in the case of any other fact. The court may consult or use any source of pertinent information, whether it be offered by the parties or discovered through its own research, in determining the applicability of foreign law. The usual method of proving foreign law is by affidavit testimony of qualified legal experts. The person pleading the law of a foreign country has the burden of going forward with proof of it at the risk of nonpersuasion. Panama Processes, 796 P.2d at 294, notes omitted. While there is testimony concerning the Father's actions and what he understood concerning his efforts relinquishing membership, there is no testimony whether an agent acting for the biological father or the tribe either did, or did not, comply with LA-16-02. There is nothing in the record to suggest that LA-16-02 was before the trial court for its application or that the tribe complied with Panama Processes. Litigation of a tribal membership issue involving a mixed question of law and fact, here the application on LA-16-02, should not be raised for the first time on appeal in an answer brief,96 but should be litigated in the district court and not this Court. ¶88 An appellate reply brief was filed by counsel for one of the appellants and the entire brief focuses on one argument: Counsel . . . has in her possession, a copy of the Tribal Relinquishments of the minor child . . . and the natural father, both prepared and executed by the natural father on April 19, 2014. In addition, counsel . . . has, in her possession, the correspondence (dated June 26, 2014) that accompanied the Tribal Relinquishments, and proof of service that the Tribal Relinquishments were received and signed for by the Cherokee Nation Registration Department on July 1, 2014. A reply brief on appeal is not the proper method for making facts appear for the first time in the judicial record: "This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, nor may a deficient record be supplemented by material physically attached to a party's appellate brief."97 This principle is not new or an obscure appellate trap for the unwary,98 and it is found in the Rules of this Court.99 The Court does not take judicial notice of private documents kept in the files of a lawyer's office. ¶89 None of appellants' arguments, including the reply brief, address whether the procedure used by the biological father to relinquish membership were considered by the Cherokee Nation to be effective pursuant to the law of the Cherokee Nation. They made no attempt in the trial court to show Cherokee Nation law in accordance with the procedure we explained in Panama Processes. Appellants cannot successfully argue on this record that the Cherokee Nation failed to follow their law for processing a member's relinquishment of membership or that the tribe improperly kept the father a member for the purpose of this litigation. B. What the Record Shows ¶90 The record shows that at one point during the trial court proceeding all parties agreed that the biological father was a member of the Cherokee Nation and the ICWA applied to custody proceedings for his child. Appellants state in their appellate brief the child was enrolled by the tribe "during the deprived proceeding." In June, 2013, a month after the child was taken into custody, the Cherokee Nation intervened in the trial court proceeding and asserted that the child was an "Indian child" "within the meaning of 25 U.S.C. § 1903(4) and the Oklahoma Indian Child Welfare Act." During the trial court proceeding, appellants sought to assist the father with completing a form or forms for the purpose of relinquishing his tribal membership. During the trial court hearing, the Cherokee Nation's Indian Child Welfare expert testified she had checked with the registration department (registrar) of the Cherokee Nation and the biological father was still a member of the Cherokee Nation. ¶91 A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.100 We have explained that the burden of proof as to any particular fact rests upon the party asserting such fact, and when a party must plead and prove a fact will depend upon whether the fact is part of a cause of action or part of a defense.101 ¶92 The Cherokee Nation intervened and pled the child was an Indian child subject to the IWCA and a representative of the tribe testified at the hearing the child's father was an enrolled member of the tribe. It was uncontested that the child was an Indian child for purposes of the ICWA, except as to the effect of the father's attempts to relinquish his tribal membership. The facts concerning his efforts to resign were put forward by appellants to resist application of the ICWA. Appellants sought a determination that father was not a tribal member in opposition to the Cherokee Nation's assertion. Appellants had the burden to produce evidence on the tribal requirements for relinquishment of membership and whether father had satisfied these requirements.102 We hold that the Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. Appellants did not meet their burden to show that the father relinquished his tribal membership, or that such relinquishment could alter the Indian status of the child. ¶93 The trial court's order made express findings identifying the natural father of the child and stating he "is a member of the Cherokee Nation." The court made a finding that the child was an "Indian child" as defined by the Indian Child Welfare Act, 25 U.S.C. § 1903(4) and the Oklahoma Indian Child Welfare Act, 10 O.S. § 40.2(2). The trial court determined the Cherokee Nation was the child's tribe, and the proceeding involved a child custody proceeding for the purpose of the Indian Child Welfare Act. The court noted placement preferences and that placement could be otherwise when there existed good cause to the contrary. The court's order states that evidence of "good cause to the contrary" was a burden of a party seeking a placement contrary to the ICWA preferences, and that good cause should be based upon the non-binding factors in the BIA Guidelines. ¶94 The trial court made a finding that the child's current placement was in a "non ICWA compliant home" and that an ICWA-compliant home was available. The court stated: "The court does not find good cause to deviate from foster care, preadoptive or adoptive placement preferences found in ICWA." We reverse that portion of the trial court's order. The court also stated: "The court further finds that it is in the best interest of the minor child to continue her membership in her 'Indian tribe' and move to an ICWA compliant placement pursuant to a transition plan." We reverse that portion of the trial court's order. ¶95 Appellants claim that "natural father completed Tribal Relinquishments that were sent to the Cherokee Nation relinquishing the child's membership and the natural father's membership, and the court never ruled on the issue as to whether the child was an Indian Child under ICWA." The trial court expressly ruled that the child was an Indian child subject to the ICWA. VI. Conclusion ¶96 We hold that the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence. We need not remand for a redetermination using this standard because the evidence presented by appellants was sufficient to satisfy their burden for placement contrary to the ICWA, regardless whether we apply abuse-of-discretion or clear-and-convincing standards. ¶97 We hold that the circumstances of this case do not warrant reversal of the judge's order based upon 10A O.S. § 1-4-812. Appellants did not show the requirements for relinquishment of membership in the Cherokee Nation and if father met them, and we need not adjudicate the legal effect of the father's efforts. We hold that the Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. We hold the evidence was sufficient to show a continued temporary ICWA-noncompliant placement as in the best interests of the child. ¶98 The opinion of the Court of Civil Appeals is vacated. The order of the District Court directing placement of the Indian child in an ICWA-compliant home is reversed, and in all other respects affirmed. The cause is remanded for further proceedings consistent with the Court's opinion. ¶99 CONCUR: REIF, C. J., COMBS, V. C. J., KAUGER, WATT, EDMONDSON, COLBERT, and GURICH, JJ. ¶100 CONCUR IN RESULT: WINCHESTER and TAYLOR, JJ. FOOTNOTES 1 The mother's parental rights were terminated during the present appeal of the trial court's order adjudicating the Cherokee Nation's motion for placement pursuant to the ICWA. 2 The parties stipulated to the witness' qualifications as an expert witness in Cherokee tribal customs and child-rearing practices. 3 During the testimony of the foster mother, the Cherokee Nation objected to the photocopy of a Western Cherokee Nation identification card being admitted into evidence. The objection was based upon relevance and various counsel argued whether an identification card will "demonstrate anything at all about Cherokee culture." The court noted that the foster mother could testify concerning her Cherokee culture, the objection was sustained, and the exhibit was admitted as Court's exhibit No. 1 for the purpose of an appeal. 4 During the hearing, counsel for the foster mother made a reference to the visits with the Cherokee Nation family as having occurred "Not since February." In response to questions from the judge, counsel for the Cherokee Nation and the Cherokee Nation Social Worker stated that the visits were "cut off" "based upon" the "withdrawal of their notice of removal." According to foster mother's testimony this occurred in April 2014. 5 In the Matter of Baby Boy L, 2004 OK 93, ¶ 11, 103 P.3d 1099, 1103, quoting 25 U.S.C.A. § 1901. 6 In the Matter of Baby Boy L, at ¶ 11, 103 P.3d at 1103, quoting 25 U.S.C.A. § 1902. 7 10 O.S.2011 § 40.1, states in part: "The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608." 8 10 O.S. 2011 § 40.6: "The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements. In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or by any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. This requirement shall include cases where a consenting parent evidences a desire for anonymity in the consent document executed pursuant to Section 60.5 of this title. If a request for anonymity is included in a parental consent document, the court shall give weight to such desire in applying the preferences only after notice is given to the child's tribe and the tribe is afforded twenty (20) days to intervene and request a hearing on available tribal placement resources which may protect parental confidentiality, provided that notice of such hearing shall be given to the consenting parent." (Section 60.5 was renumbered as 10 O.S. § 7503-2.1, by Laws 1997, c. 366 §§ 9, 58, eff. Nov. 1, 1997). 9 Cherokee Nation v. Nomura, 2007 OK 40, ¶ 25, 160 P.3d 967, 976 (emphasis added). 10 25 U.S.C. A. § 1915 (a) & (b) , in part, with emphasis added : "(a) Adoptive placements . . . In any adoptive placement . . .a preference shall be given, in the absence of good cause to the contrary, to a placement with . . . (b) Foster care . . . a preference shall be given, in the absence of good cause to the contrary, to a placement with...." Section 1915 has been in effect since 1978. Pub.L. 95-608, Title I, § 105, Nov. 8, 1978, 92 Stat. 3073. 11 25 U.S.C.A. § 1903(1)(i): "(i) 'foster care placement' which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated...." 12 25 U.S.C.A. § 1903(1)(iii): "(iii) 'preadoptive placement' which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement...." 13 25 U.S.C.A. § 1903(1)(iv): "(iv) 'adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." 14 10 O.S.2011 § 40.6: The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements. In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or by any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. This requirement shall include cases where a consenting parent evidences a desire for anonymity in the consent document executed pursuant to Section 60.5 of this title.2 If a request for anonymity is included in a parental consent document, the court shall give weight to such desire in applying the preferences only after notice is given to the child's tribe and the tribe is afforded twenty (20) days to intervene and request a hearing on available tribal placement resources which may protect parental confidentiality, provided that notice of such hearing shall be given to the consenting parent. 15 Guidelines for State Courts; Indian Child Custody Proceedings" (Guidelines), 44 Fed. Reg. 67584 (November 28, 1979). 16 In re M.S., 2010 OK 46, n. 12, 237 P.3d 161 ("The Guidelines are not statutes and are not mandatory. They represent BIA interpretations of ICWA provisions."); In the Matter of N.L., 1988 OK 39, 754 P.2d 863, 867 ("The guidelines for state courts promulgated by the United States Bureau of Indian Affairs, while not binding on the court, assist in defining a qualified expert witness."). See, e.g., In Re Amendments to Oklahoma Uniform Jury Instructions for Juvenile Cases, 2011 OK 23 (Chapter Five, Indian Child Welfare Act, Introductory Note, Expert Witnesses: "... while the BIA guidelines for state courts are not binding, they are instructive in terms of who may possess the qualifications of an expert witness for ICWA cases."). 17 Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, February 25, 2015, 80 Fed. Reg. 10146-10159 (Notices), promulgated by Bureau of Indian Affairs, Department of the Interior. 18 Generally, administrative agencies create (1) "legislative rules" which are binding similar to a statute and created only within legislatively-granted authority, and (2) "interpretive rules" which are not binding on courts, may be deemed instructive and advisory, and are often expressed as guidelines and agency policy statements. John P.C. Duncan, The Course of Federal Pre-Emption of State Banking Law, 18 Ann. Rev. Banking L. 221, 265-66 (1999) (principle stated in explanation of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), United States v. Shimer, 367 U.S. 374, 81 S. Ct. 1554, 6 L. Ed. 2d 908 (1961), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944)). See also Health Ins. Ass'n of America, Inc. v. Shala, 306 U.S.App.D.C. 104, 23 F.3d 412, 422-423, 126 A.L.R. Fed. 793 (D.C.Cir. 1994) (explaining that the proper distinction is that a "legislative rule" is "necessary in order to make a statutory scheme fully operative"). 19 An interpretive rule may be applied retroactively as an expression of an existing statute. Alvarado Parkway Institute, Inc. v. Mendez, 789 F. Supp. 1190, 1195 (D.D.C.1992) ("An interpretive rule, in contrast, 'is an agency statement interpreting an existing statute or rule.' . . . Such rules clarify or explain, or remind parties of existing obligations. . . .Because existing obligations remain unchanged, the retroactive effect of an interpretive rule has been upheld when reasonable." (Citations omitted.) If the Guidelines were considered as "legislative" they would not be applied retroactively in the absence of legislative expression to that effect or when necessarily required. Dolese Bros. v. State ex rel. Oklahoma Tax Commission, 2003 OK 4, n. 14, 64 P.3d 1093, 1098 quoting Bowen v. Georgetown University Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988) ("... congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result [citations omitted]. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms."). 20 Alleged error must be raised in the trial court to preserve the issue as a ground urged as error on appeal. Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230, 1236; In re Sara O.,1993 OK 10, 847 P.2d 768, 770. No party has pointed to either (1) a public policy expressed in the new Guidelines that should be applied in this case, or (2) any exception to the general principle that our appellate review should be confined to reviewing alleged error based upon issues that were presented to the trial court. 21 44 Fed. Reg. 67,594, Part F., Dispositions, at F. 3 (b), Good Cause To Modify Preferences ("(b) The burden of establishing the existence of good cause not to follow the order of preferences ... shall be on the party urging that the preferences not be followed."). 22 Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (the burden of proof as to any particular fact rests upon the party asserting such fact, and when a party must plead and prove will depend upon whether the fact is part of a cause of action or part of a defense). 23 For example, the Cherokee Nation relies upon: (1) In re B.B.A., 2009 OK CIV APP 80, ¶ 5, 224 P.3d 1285 (released for publication by order of the Court of Civil Appeals), ("we hold the trial court's determination of good cause should be reviewed for an abuse of discretion."), citing In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1, 9 (Kan.2006); In re Adoption of Sara J., 123 P.3d 1017, 1021 (Alaska 2005); Matter of Baby Boy Doe, 127 Idaho 452, 461, 902 P.2d 477, 486 (Idaho 1995); and Matter of Adoption of M., 66 Wash. App. 475, 483, 832 P.2d 518, 522-23 (Wash.App.1992); and (2) In re D.L., 2013 OK CIV APP 30, ¶ 4, 298 P.3d 1203 (released for publication by order of the Court of Civil Appeals.), ("The question of whether there is good cause to deviate from the ICWA preferences is a factual determination to be made by the trial court. We therefore review the court's determination for abuse of discretion."), citing In re B.B.A., supra. A different division of the Court of Civil Appeals has used the clear-and-convincing standard. In re Adoption of Baby Girl B., 2003 OK CIV APP 24, ¶ 77, 67 P.3d 359 ("This Court holds that, in the specific context of Section 1915(b) placements, the party opposing the statutory preferences must establish good cause according to the 'clear and convincing' evidence standard."). 24 In re BTW, 2010 OK 69, ¶ 16, 241 P.3d 199, 206 ("Abuse of discretion is the standard of review for the conclusion we reach here . . . A trial court's findings concerning visitation and placement of a child previously adjudicated as deprived are matters of equitable cognizance."); In re BTW, 2008 OK 80, ¶ 20, 195 P.3d 896, 908 ("The instant cause concerns the trial court's findings regarding a change in placement and visitation. . . are left to the sound discretion of the trial court . . . [and] We uphold such decisions absent a determination that the trial court's decision is clearly against the weight of the evidence so as to constitute an abuse of discretion."). 25 The trial court order before us does not terminate parental rights, and we are not called upon to apply the beyond-a-reasonable-doubt standard expressly stated in 25 U.S.C. § 1912(f): "No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 26 In re M.S., 2010 OK 46, 237 P.3d 161. 27 In re M.S., 2010 OK 46, ¶ 13, 237 P.3d at 166. 28 In re M.S., 2010 OK 46, ¶ 17, 237 P.3d at 167. 29 In re M.S., 2010 OK 46, ¶ 17, 237 P.3d at 167. 30 Matter of Baby Boy Doe, 127 Idaho 452, 902 P.2d 477, 486 (1995) quoting 44 Fed.Reg. 67584 (1979) and citing S.Rep. No. 597, 95th Cong., 1st Sess. 17 (1977) ("The introductory language to the BIA guidelines regarding ICWA state that use of the term 'good cause' was designed to provide state courts with flexibility in determining the disposition of a placement proceeding . . .In view of the trial court's superior position to ascertain the facts, and the flexibility Congress intended trial courts to have regarding the 'good cause' determination, we believe this determination should be commended to the sound discretion of the trial court, and will not be upset on appeal absent an abuse of discretion."). 31 In re Alexandria P., (2014) 228 Cal. App. 4th 1322, 1352, 176 Cal. Rptr. 3d 468 (CA-2, Div. 5; rehg den; rev den), citing Guidelines, supra, 44 Fed.Reg. at p. 67586. 32 Santosky v. Kramer, 455 U.S. 745, 754-755, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), quoting Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). 33 Johnson v. Board of Governors of Registered Dentists of State of Okla., 1996 OK 41, 913 P.2d 1339, 1345. 34 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). 35 2004 OK 93, 103 P.3d 1099. 36 10 O.S.2011 § 40.1: The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608.2 It shall be the policy of the state to recognize that Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated. It shall be the policy of the state to cooperate fully with Indian tribes in Oklahoma in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced. 37 In the Matter of Baby Boy L., 2004 OK 93, ¶ 17, 103 P.3d 1099, citing 10 O.S.§ 40.1, as amended in 1994. 38 2007 OK 40, 160 P.3d 967. 39 Cherokee Nation v. Nomura, 2007 OK 40, n. 20, 160 P.3d 967, 977 citing In re Adoption of B.G.J., 33 Kan.App.2d 894, 111 P.3d 651, 657-58 (2005), judgment affirmed, In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1 (2006). 40 In re Adoption of B.G.J., 111 P.3d at 657. 41 25 U.S.C.A. § 1915 (c) states in part that "Where appropriate, the preference of the . . . parent shall be considered...." 42 25 U.S.C.A. § 1902: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. 43 10A O.S. 2011 §§ 1-1-101 through 1-9-122, and all statutes enacted and codified in "this title" are considered as part of the Oklahoma Children's Code. 10A O.S.2011 § 1-1-101(A) & (B). 44 10A O.S. 2011 § 1-1-102 (C)(1): C. Whenever it is necessary for a child to be placed outside the home pursuant to the Oklahoma Children's Code, it is the intent of the Legislature that: 1. Each child shall be assured the care, guidance, and supervision in a permanent home or foster home that will serve the best interests of the child including, but not limited to, the development of the moral, emotional, spiritual, mental, social, educational, and physical well-being of the child.... 45 10A O.S. 2011 § 1-1-102 (E): E. It is the intent of the Legislature that the paramount consideration in all proceedings within the Oklahoma Children's Code is the best interests of the child. See also Saul v. Alcorn, 2007 OK 90, ¶ 12, 176 P.3d 346, 351 ("Under the Oklahoma Children's Code, the paramount consideration in all proceedings concerning a child alleged or found to be deprived is the health, safety and best interests of the chid. The purposes of laws relating to deprived children are to secure the permanency, care, health, safety and welfare of the child and to preserve family ties whenever possible.") 46 See, e.g., In re K.S., 448 S.W.3d 521, 533 (Tex. App.-Tyler 2014, pet. denied) (Family Code of Texas does not serve as an obstacle to the realization of the ICWA's purpose, and the two may be read in harmony). But see, Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 169 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding [leave denied] ) (consideration of the best interests of the child in determining whether good cause exists for transferring jurisdiction is improper because "it allows Anglo cultural biases into the analysis"); In re W.D.H., 43 S.W.3d 30, 37 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (Family Code applies a best interests of the child "Anglo" standard and conflicts with the ICWA). 47 10 O.S.2011 § 40.6 states in part: "The placement references specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements as well as preadoptive, adoptive and foster care placements." We are not called upon to examine every provision in the ICWA and determine its agreement with Oklahoma law. But see, e.g., Matter of J.S., 2008 OK CIV APP 15, ¶ 11, 177 P.3d 590, 593 (released for publication by order of the Court of Civil Appeals) (noting that heightened standard of proof for the factual determination required by 25 U.S.C. § 1912(f) and the lesser state-law mandated standard of clear and convincing evidence is applicable to other state law requirements for parental termination); Valerie M. v. Arizona Dept. of Economic Sec., 219 Ariz. 331, ¶ 18, 198 P.3d 1203, 1207 (2009) (collecting cases from many states and concluding that the ICWA allows states to specify the standard of proof for state-law findings distinct from the findings required by the ICWA). 48 Our Legislature has recognized that permanency in placement is in the best interests of a child. 10A O.S. 2011 § 1-1-102 (B)(6). 49 See, e.g., 10A O.S.Supp. 2014 § 1-4-805 (when child has resided for three months with a foster parent or group home statute specifies procedure for removal of the child, and in paragraph "C" states limiting repeated movement and creating stability is a goal of the procedure therein). 50 A comparison of Matter of Custody of S.E.G., 521 N.W.2d 357 (Minn. 1994), and In re Adoption of Sara J., 123 P.3d 1017 (Alaska 2005), illustrates this point. In S.E.G., the court explained that "Implicit in the trial court's findings that the children's need for permanence was not being met . . . [at a] foster home . . . [and] only adoption could meet a need for permanence. We believe this holding was based on the improper assumption that the need for permanence could only be met through adoption and, therefore, we reverse this holding as a matter of law." Id. 521 N.W.2d at 364. In Sara J., the court commented that S.E.G. "held that evidence of a special need for permanence must be presented by qualified experts with knowledge of the Indian community, suggesting that 'permanency' is defined differently in Native American cultures.'" 123 P.3d at 1028-1029. Sara J. held that the children's special needs in that case "do not implicate the determination of suitability for a preferred placement and need not be analyzed using the prevailing social and cultural standards of the Indian community."123 P.3d at 1029. 51 Tucker v. Cochran Firm-Criminal Defense Birmingham, L.L.C., 2014 OK 112, ¶ 21, n. 27, 341 P.3d 673, 682, citing In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 39, 326 P.3d 496, 511 and Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073. 52 25 U.S.C.A. § 1903 (1) and (4): For the purposes of this chapter, except as may be specifically provided otherwise, the term--(1) "child custody proceeding" shall mean and include--(i) "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;(ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship;(iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and(iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. . . . (4) "Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; . . . . 53 Tucker v. Cochran Firm-Criminal Defense Birmingham, L.L.C., supra, at note 51; 44 Fed.Reg. 67,594. Part F., Dispositions, at F. 3 (a) (i-iii), Good Cause To Modify Preferences. 54 This Court has the discretion to take judicial notice of the dockets of District Courts. Dutton v. City of Midwest City, 2015 OK 51, ¶ 38, 353 P.3d 532, 550. Our discretionary expansion of the appellate record through the procedure of judicial notice is consistent with this Court's authority to require supplementation of an appellate record pursuant to Okla. Sup. Ct. R. 1.28(h), and the Court's common-law power to issue a discretionary writ of certiorari for transmittal of trial court records to an appellate court. Cf. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2014 OK 14, n. 11, 297 P.3d 378, 385 (A discretionary constitutional writ of certiorari may be used to bring up a record of an inferior court to a superior court for review of jurisdictional error.). 55 Adoption Assistance and Child Welfare Act of 1980, P.L. 96-272, 42 U.S.C. §§ 620 et seq. and §§ 670 et seq. 56 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115, is codified in noncontiguous sections of 42 U.S.C. 57 See, e.g., P.L. 105-89, § 101(a)(15)(A), amending 42 U.S.C. § 671(a)(15)(A), (regarding efforts to reunify the child and the family the Act states that ". . . in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern"). 58 See, e.g., 42 U.S.C. § 675(5)(C) (" . . . to assure each child in foster care under the supervision of the State of a permanency hearing to be held, in a family or juvenile court or another court [including a tribal court] of competent jurisdiction, . . . no later than 12 months after the date the child is considered to have entered foster care . . . . "); Ernestine Steward Gray, The Adoption and Safe Families Act of 1997 Confronting an American Tragedy, 46 La. B.J. 477, 478 (April 1999) (". . . because foster care is temporary, the ASFA mandates that permanency planning begin immediately and requires timely decision making for permanency in greatly compressed time frames. ASFA requires permanency hearings to be held within 12 months of removal."). 59 10A O.S.Supp.2012 § 1-1-105 (4), (21), (23), (48), & (56) (amended by 2015 Okla. Sess. Laws Ch. 173 § 1 (H.B. 1078), eff. Nov. 1, 2015, with no change to these five definitions, except that "48" is renumbered "47"): "When used in the Oklahoma Children's Code, unless the context otherwise requires: . . . 4. 'Adjudicatory hearing' means a hearing by the court as provided by Section 1-4-601 of this title; ... 21. 'Dispositional hearing' means a hearing by the court as provided by Section 1-4-706 of this title; ... 23. 'Emergency custody' means the custody of a child prior to adjudication of the child following issuance of an order of the district court pursuant to Section 1-4-201 of this title or following issuance of an order of the district court pursuant to an emergency custody hearing, as specified by Section 1-4-203 of this title;...48. 'Permanency hearing' means a hearing by the court pursuant to Section 1-4-811 of this title; ... 56. 'Review hearing' means a hearing by the court pursuant to Section 1-4-807 of this title;...." 60 10A O.S.Supp.2012 § 1-4-811 (B) (amended by 2015 Okla. Sess. Laws Ch. 173 § 5 (H.B. 1078), eff. Nov. 1, 2015, with no change to "B"): "B. A permanency hearing may be held concurrently with a dispositional or review hearing." 61 10A O.S.Supp.2012 § 1-4-811 (E) in part & (F) in part, as amended by 2015 Okla. Sess. Laws Ch. 173 § 5 (H.B. 1078), eff. Nov. 1, 2015): E. A transcript shall be made of each permanency hearing or the proceeding shall be memorialized by appropriate written findings of facts, and the court having considered all relevant information shall order one of the following permanency plans for the child:1. Reunification with the parent, parents, or legal guardian of the child where:a. reunification can be expected to occur within an established time frame that is consistent with the developmental needs of the child, andb. the health and safety of the child can be adequately safeguarded if returned home; 2. Placement for adoption after the rights of the parents have been terminated or after a petition has been filed to terminate parental rights;3. Placement with a person who will be the permanent guardian of the child and is able to adequately and appropriately safeguard the health, safety, and welfare of the child; or4. a. Placement in the legal custody of the Department under a planned alternative permanent living arrangement placement . . . .F. In addition to the findings required under subsection E of this section, the court shall also make written findings related to:1. Whether the Department has made reasonable efforts to finalize the permanency plan that is in effect for the child and a summary of the efforts the Department has made; or, in the case of an Indian child, whether the Department has made active efforts to provide remedial services and rehabilitative programs as required by 25 U.S.C., Section 1912(d); . . . . 62 A child is considered to have entered out-of-home placement on the earlier of: (a) the adjudication date, or (b) the date that is sixty (60) days after the date on which the child is removed from the home. 10A O.S.Supp.2012 § 1-4-811 (A)(2), as amended by 2015 Okla. Sess. Laws Ch. 173 § 5 (H.B. 1078), eff. Nov. 1, 2015. 63 10A O.S.Supp.2012 § 1-4-811 (E)(1), as amended by 2015 Okla. Sess. Laws Ch. 173 § 5 (H.B. 1078), eff. Nov. 1, 2015. 64 See, e.g., Randi Mendelbaum, Re-Examining and Re-Defining Permanency from a Youth's Perspective, 43 Cap. U. L. Rev. 259, 269-270 (2015) (citing the Adoption and Safe Families Act, § 103(a) & § 103 (c)(2)(B) [42 U.S.C. § 675 (2012)], and noting that the 12-month ASFA permanency hearing to determine if the plan should be changed to something other than parental reunification, and the requirement of pursuing the termination of parental rights for children in foster care for fifteen of the last twenty-two months, unless placement with a relative is being pursued or there are other compelling reasons.). 65 We note that the 2015 version of the Guidelines state that the "active efforts" requirements of the ICWA for reunification of a child with the child's parents and tribal community are separate and distinct requirements from the Adoption and Safe Families Act, and "ASFA's exceptions to reunification efforts do not apply to ICWA proceedings." Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, February 25, 2015, 80 Fed. Reg. at 10150-10151. 66 We note that some authors have discussed the different approaches to permanency found in the ICWA and the ASFA, with a recognition of tribal-care traditions achieving one type of permanency without termination of parental rights followed by an adoption. See, e.g., Barbara Ann Atwood, Wells Conference on Adoption Law: Achieving Permanency for American Indian and Alaska Native Children: Lessons from Tribal Traditions, 37 Cap. U.L.Rev. 239, 240-241 (2008) ("Two federal laws with contrasting approaches to permanency have particular relevance: the Indian Child Welfare Act of 1978 (ICWA) and the Adoption and Safe Families Act of 1975 (ASFA). While permanency, a centerpiece of ASFA, is not mentioned in ICWA, permanency as a goal for Indian children is consistent with the basic themes of ICWA."). 67 A serious emotional or physical need requiring treatment or services would be memorialized in an individual treatment and service plan and or one of the court's orders reviewing a plan for a child adjudicated deprived. See, e.g., 10A O.S.2011 § 1-4-704 (A)(B) ("A. The Department of Human Services or licensed child-placing agency shall prepare and maintain a written individualized service plan for any child that has been adjudicated to be a deprived child. B. The plan shall be furnished to the court . . . be made available to counsel for the parties and any applicable tribe.") (material omitted); 10A O.S.Supp 2014 § 1-4-807 (D)(1) (on a review of a case a court will determine "whether the individualized service plan, services, and placement meet the special needs and best interests of the child . . . ."). 68 Barbara Ann Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L. J. 587, 651-653 (2002). 69 In re C.H., 299 Mont. 62, 2000 MT64, 997 P.2d 776, 783-784. 70 Matter of Custody of S.E.G., A.L.W. and V.M.G., 521 N.W.2d 357, 363-364 (Minn.1994). 71 In re Adoption of Sara J., 123 P.3d 1017, 1029-1030 (Alaska 2005). 72 In re Adoption of Sara J., 123 P.3d at n. 64, 1029. 73 10A O.S.2011 § 1-4-812 (C)(1), states in part: "The court shall consider, without limitation: ...the child's ties with the foster family...." 74 25 U.S.C.A. § 1915 (d): Social and cultural standards applicable - The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties. 75 We note that 25 U.S.C.A. § 1903 (4) states that an "Indian child" means any unmarried person who is under age eighteen who is eligible for membership in an Indian tribe. Appellants' argument does not adequately explain how even if the child's father could void his membership in the tribe such action would necessarily destroy the child's eligibility for membership in the tribe. 76 Thompson v. County of Franklin, 180 F.R.D. 216, 225 (N.D.N.Y.1998), quoting Felix S. Cohen, Handbook of Federal Indian Law, 22 (1982 ed.). 77 Thompson v. County of Franklin, 180 F.R.D. at 225, quoting Cohen, Handbook of Federal Indian Law, at 22 (emphasis deleted). 78 In Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 78, 97 S. Ct. 911, 51 L. Ed. 2d 173 (1977) the Court explained that an 1866 treaty provided that Kansas Delawares who agreed to "dissolve their relations with their tribe" and become citizens of the United States might elect to remain in Kansas where they would receive eighty acres of land in Kansas in fee simple and a "just proportion" of the tribe's credits "then held in trust by the United States," but thereafter could not "further participate in their (tribal) councils, nor share in their property or annuities." 79 United States v. Wheeler, 435 U.S. 313, 322, n. 18, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978). 80 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978). 81 United States v. Wheeler, 435 U.S. 313, 322, n. 18, citing Red Bird v. United States ("Cherokee Intermarriage Cases,"), 203 U.S. 76, 27 S. Ct. 29, 51 L. Ed. 96 (1906); Roff v. Burney, 168 U.S. 218, 222-223, 18 S. Ct. 60, 62, 42 L. Ed. 442 (1897). Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, citing Roff v. Burney, 168 U.S. 218, 18 S. Ct. 60, 42 L. Ed. 442 (1897). 82 Santa Clara Pueblo v. Martinez, 436 U.S. at 55 quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L. Ed. 483 (1832), and citing several U. S. Supreme Court opinions including United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975); United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978); and Roff v. Burney, 168 U.S. 218, 18 S. Ct. 60, 42 L. Ed. 442 (1897). See also Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir. 1957) ("The courts have consistently recognized that in absence of express legislation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity."). 83 State ex rel. Oklahoma Bar Ass'n v. Gasaway, 1993 OK 133, 863 P.2d 1189, 1193, (emphasis added) citing National Labor Relations Board v. Granite State Joint Board, 409 U.S. 213, 216, 93 S. Ct. 385, 387, 34 L. Ed. 2d 422 (1972); Booster Lodge No. 405 v. National Labor Relations Board, 412 U.S. 84, 88, 93 S. Ct. 1961, 1964, 36 L. Ed. 2d 764 (1973); Borgraefe v. Supreme Lodge, K.L.H., 26 Mo.App. 218 (1887). 84 State ex rel. Oklahoma Bar Ass'n v. Gasaway, 863 P.2d at 1193-1194, citing, Guinn v. Church of Christ of Collinsville, 1989 OK 8, 775 P.2d 766, 776; Oklahoma Association of Insurance Agents v. Hudson, 1963 OK 199, 385 P.2d 453, 455-456; Braddom v. Three Point Coal Corporation, 288 Ky. 734, 157 S.W.2d 349, 352 (1941); Progressive Grocers' Ass'n. Inc. v. Golden, 76 U.S.App.D.C. 21, 128 F.2d 318, 319 (1942); Associated Hat Manufacturers v. Baird-Unteidt Co., 88 Conn. 332, 91 A. 373, 378 (1914); Haynes v. Annandale Golf Club, 4 Cal. 2d 28, 47 P.2d 470, 471 (1935). 85 Of course, "Indian tribes within 'Indian country' are a good deal more than 'private, voluntary organizations." United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975). 86 Tribal membership requirements are not governed, or regulated, or restricted by the laws of the State of Oklahoma, but by federal statutes and treaties. United States v. Wheeler, supra, and Santa Clara Pueblo v. Martinez, supra. 87 In the Matter of Baby Boy Doe, 123 Idaho 464, 849 P.2d 925, (1993) cert. denied, Swenson v. Oglala Sioux Tribe, 510 U.S. 860, 114 S. Ct. 173, 126 L. Ed. 2d 133 (1993). 88 But see, e.g., Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd Cir.1996). (Habeas corpus action did not lie against tribe, but against tribal officials allegedly acting in violation of the Indian Civil Rights Act of 1968 [ICRA], 25 U.S.C. §§ 1301-1303, when stripping membership from members found guilty of treason; and while membership was an internal matter for the tribe, the power of Congress over the matter of citizenship in Indian tribes is plenary, and Congress provided the remedy of an action in a United States District Court.); Valenzuela v. Silversmith, 699 F.3d 1199, 1202-1203, 1205-1207 (10th Cir.2012) (explaining Poodry, habeas corpus remedy, and requirement for exhaustion in tribal courts of a challenge to tribal authority). 89 Carbajal v. Precision Builders, Inc., 2014 OK 62, n. 20, 333 P.3d 258, 265, citing In re Guardianship of Stanfield, 2012 OK 8, n. 55, 276 P.3d 989, 1002 (unsworn statements by counsel do not constitute evidence); Willis v. Sequoyah House, Inc., 2008 OK 87, ¶¶ 12-13, 194 P.3d 1285, 1289-1290 (same). 90 Henson v. Johnson, 1926 OK 278, 246 P. 868, 870 ("the courts of the state would take judicial notice of the statute laws of the Five Civilized Tribes"), citing Scott v. Jacobs, 1911 OK 107, 126 P. 780; Guthrie v. Mitchell et vir, 1913 OK 261, 132 P. 138, 49 L. R. A. (N. S.) 724. 91 We need not determine in this proceeding whether, or to what extent, the trial court may rely upon an internet website for judicial notice of foreign law in effect at a particular time. 92 May-Li Barki, M.D., Inc. v. Liberty Bank & Trust, Co., 1999 OK 87, ¶ 9, 20 P.3d 135, 144 (supp. opinion on denial of rehearing) ("But no counterappeal is necessary to argue that, in spite of errors committed at nisi prius, the judgment is nonetheless impervious to reversal because it is correct in result.") citing Woolfolk v. Semrod, 1960 OK 98, 351 P.2d 742, 745; Price v. Reed, 1986 OK 43, 725 P.2d 1254, 1261. 93 In re Assessment of Personal Property Taxes, 2008 OK 94, n. 85, 234 P.3d 938, 960, cert. denied sub nom. Missouri Gas Energy v. Schmidt, 559 U.S. 970, 130 S. Ct. 1685, 176 L. Ed. 2d 179 (2010) ("An appellate court will affirm a correct judgment on any applicable theory."); Merritt v. Merritt, 2003 OK 68, ¶ 17, 73 P.3d 878, 883 (same); McDaniel v. McCauley, 1962 OK 72, 371 P.2d 486, 489 (same). 94 State v. Torres, 2004 OK 12, ¶ 7, 87 P.3d 572, 578. 95 1990 OK 66, 796 P.2d 276. 96 In re Guardianship of Stanfield, 2012 OK 8, ¶ 27, 276 P.3d 989 ("This Court does not make first-instance determinations of disputed issues of either law or fact in the exercise of its appellate jurisdiction."); Hedges v. Hedges, 2002 OK 92, ¶ 23, 66 P.3d 364, 373 ("But when reviewing an equity case, an appellate court cannot exercise first-instance cognizance by making original findings of fact."). 97 Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724, citing Frey v. Independence Fire and Cas. Co., Okl., 1985 OK 25, 698 P.2d 17, 20; Eckel v. Adair, 1984 OK 86, 698 P.2d 921, 925; In Re Hess' Estate, 1962 OK 74, 379 P.2d 851, 859; Owens v. Luckett, 1943 OK 264, 139 P.2d 806, 807. See also In re Guardianship of Stanfield, supra, and Hedges v. Hedges, supra, at note 96. The alleged facts submitted by the reply brief occurred prior to the trial court hearing, do not alter this Court's power to administer complete appellate relief; and they do not fit within an exception to the general rule. See, e.g., Nichols v. Nichols, 2009 OK 43, ¶ 23, 222 P.3d 1049, 1057 ("While appellate scrutiny is generally confined strictly to the record of proceedings conducted below, a well-recognized exception allows an appellate tribunal to consider those after-occurring facts, transpiring during the pendency of an appeal, which may adversely affect the reviewing court's capacity fully to administer effective relief."). 98 See opinions cited in note 97 supra, as well as Ray v. Ray, 2006 OK 30, ¶ 12, 136 P.3d 634, 637 ("The appellant bears the undivided responsibility for producing to a court of review a record that will adequately demonstrate error in the trial court's decree . . . The appealing party must include in the record for appeal all materials necessary for corrective relief."); State v. Torres, 2004 OK 12, n. 31, 87 P.3d 572, 581 ("An appellant bears total responsibility for including in the appellate record all materials necessary for corrective relief.") citing Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶ 7, 777 P.2d 932, 936; Hamid v. Sew Original, 1982 OK 46, ¶ 7, 645 P.2d 496, 497. 99 12 O.S.Supp.2014 Ch. 15, App. 1, Okla. Sup. Ct. Rule 1.33(d): (d) Definition of Record on Appeal. The record on appeal shall consist only of those portions of the "entire trial court record" properly designated by a party to the appeal or ordered by the appellate court. The "entire trial court record" shall consist of all papers and exhibits filed in the trial court, the reporter's notes and transcripts of proceedings, and the entries on the appearance docket in the office of the trial court clerk. A copy of the appearance docket shall be included in the record on appeal. Only papers filed and exhibits presented to the trial court together with transcripts necessary to the appeal may be included in the record on appeal. Although the Supreme Court Rules were amended in 2013 and the 2014 codification is cited, the language in Rule 1.33 is not of recent origin. See, e.g., 12 O.S. 2001 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.33(d) (same language). 100 In Re Initiative Petn. No. 397, State Question No. 767, 2014 OK 23, ¶ 39, n. 51, 326 P.3d 496, 512. 101 Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073. 102 Colton v. Huntleigh USA Corp., at ¶ 10, 121 P.3d at 1073; In Re Initiative Petn. No. 397, State Question No. 767, at n. 51, 326 P.3d at 512.