RE: AMENDMENT TO 12 O.S. 3228
ATTORNEY GENERAL ROBERT HENRY HAS RECEIVED YOUR REQUEST FOR AN OPINION ADDRESSING THE CONSTITUTIONALITY OF THE 1986 LEGISLATIVE AMENDMENT TO 12 O.S. 3228 (1981). BECAUSE IT APPEARS THAT THE ANSWER TO YOUR QUESTION IS GOVERNED BY WELL-ESTABLISHED PRINCIPLES OF LAW AND THAT A FORMAL OPINION OF THE ATTORNEY GENERAL IS THEREFORE NOT WARRANTED, I HAVE BEEN ASKED TO RESPOND TO YOUR REQUEST INFORMALLY.
WHILE IT IS TRUE THAT AS OF JANUARY 1, 1990, ONLY CERTIFIED OR LICENSED SHORTHAND REPORTERS ARE AUTHORIZED UNDER 12 O.S. 3228 TO TAKE BINDING DEPOSITIONS, AS I UNDERSTAND THE SITUATION, IT WAS NOT THROUGH A GLARING OMISSION THAT NO GRANDFATHER CLAUSE WAS INCLUDED IN THE AMENDMENT. RATHER, A 3 1/2 YEAR DELAY IN IMPLEMENTATION WAS UTILIZED, PRESUMABLY TO ALLOW INDIVIDUALS; HO WERE NOT CERTIFIED OR LICENSED AMPLE TIME TO OBTAIN CERTIFICATION OR LICENSURE.
NEITHER THE UNITED STATES CONSTITUTION NOR THE OKLAHOMA CONSTITUTION GUARANTEES AN UNRESTRICTED PRIVILEGE TO ENGAGE IN A BUSINESS OR OCCUPATION. UNDER ITS POLICE POWER, A STATE AY REGULATE OR IMPOSE LICENSE REQUIREMENTS ON ANY OCCUPATION OR BUSINESS WHICH MAY IMPACT THE PUBLIC WELFARE. THE CONSTITUTION OF THE UNITED STATES:
"DEMANDS ONLY THAT THE LAW SHALL NOT BE UNREASONABLE, ARBITRARY OR CAPRICIOUS, AND THAT THE MEANS SELECTED SHALL HAVE A REAL AND SUBSTANTIAL RELATION TO THE OBJECT SOUGHT TO BE ATTAINED."
NEBBIA V. NEW YORK, 291 U.S. 502, 545 S.CT. 505, 78 L.ED. 940 (1933).
GIVEN THE IMPORTANT GOVERNMENTAL INTEREST IN INSURING ACCURACY IN THE RECORDING OF DEPOSITIONS AND THE MORE THAN REASONABLE OPPORTUNITY PROVIDED FOR COMPLIANCE WITH THE PROVISIONS OF 3238, IT IS EXTREMELY IMPROBABLE THAT A CONSTITUTIONAL CHALLENGE TO THIS AMENDMENT WOULD LIE.
I REMIND YOU THAT THESE ARE THE COMMENTS OF THE UNDERSIGNED AND DO NOT CONSTITUTE A FORMAL OPINION OF THE ATTORNEY GENERAL. NEVERTHELESS I HOPE I HAVE SATISFACTORILY ADDRESSED YOUR CONCERNS.
(REBECCA RHODES)