Park View Hospital Trust Authority v. State Ex Rel. Oklahoma Department of Labor

OPALA, Justice.,

with whom SIMMS, Justice, joins, concurring in judgment.

Today the court (a) reverses the trial court’s summary declaration that Park View Hospital Trust Authority [Authority] is a public body subject to the Oklahoma Minimum Wages on Public Works Act [Act]1, (b) remands the cause and directs the trial court to dismiss Authority’s action, and (c) vacates the Court of Appeals’ opinion. The court’s pronouncement rests on its decision in City of Oklahoma City v. State,2, which condemns as unconstitutional the Act’s prevailing-wage provisions (effective October 10, 1995) and settles the prospective reach of the opinion.3 While I join in the court’s judgment, I must recede from its pronouncement.

I would hold that the central issue tendered below for declaratory judgment— whether Authority is a public body within the meaning of the Act — was mooted by City’s sentence of nullity and, at once, ceased to be the subject of a lively controversy. I would hence direct that the action be dismissed because no effective relief can be granted Authority on this issue and no other issues remain to be litigated.

I.

THE TEACHINGS OF CITY AND ITS PROGENY

City4 teaches that the sentence of nullity pronounced in that case shall govern all constitutional challenges to prevailing-wage contract clauses, interposed by public construction builders, whose claims, counterclaims or cross-claims were pending in the litigation pipeline on October 10, 1995. In Prime Electric Co., Inc. v. Oklahoma State Dept. of Labor,5 the central issue was whether City applied retrospectively to certain laborers’ claims based on a prevailing-wage contract clause. The court held that the laborers’ claims in that case were in the pipeline (created by City’s supplemental opinion on rehearing) and hence fell under that decision’s axe of constitutional invalidation.6

We are , not called upon to test here the validity of any public construction contract by the prospectivity yardstick crafted in City or by the standards of Prime. There is no executed contract tendered for our review. The focus in this ease is solely on whether our pronouncement in City rendered Authority’s quest for relief by declaratory judgment moot.

*54511

THE MOOTNESS DOCTRINE

Mootness is a state or condition which prevents the appellate court from rendering effective relief.7 Where, as here, after an appeal has been commenced, conditions arise which preclude an appellate decision from affording any effective relief, the appeal will be dismissed for mootness.8 A viable controversy must exist at all stages of review — both on appeal and certiorari.9 This court will neither decide abstract or hypothetical questions disconnected from affording actual relief nor make determinations when no practical relief is possible.10 This is the essence of the law’s mootness doctrine. Oklahoma jurisprudence recognizes but two “escape hatches” from its strictures — the public-interest11 and the likelihood-of-recurrence12 exceptions. Neither exception is present here. City’s sentence of nullity makes unlikely, if not indeed impossible, any future recurrence that would evade our review.

When this action was initiated below, there was a justiciable controversy over Authority’s status as a public body that would be subject to the prevailing-wage provisions of the Act.13 This very issue was pending before us on certiorari when City held that post-October 10, 1995 public construction contracts were no longer to be governed by the prevailing-wage clause. City’s pronouncement fully mooted the core of this controversy. Since no contract had yet been negotiated or entered into, the contest over Authority’s status as a public body within the meaning of the Act no longer presents a legally viable controversy.

SUMMARY

I would simply hold that the central issue tendered below — Authority’s status as a public entity — stands mooted by this court’s after-promulgated jurisprudence. No effective relief can be afforded or is needed. For a declaratory judgment to issue (or be subject to review as a lively controversy), there must be a dispute which calls, not for an advisory *546opinion upon a hypothetical basis, but for an adjudication of present rights upon established facts.

I would hold the controversy moot and order the declaratory judgment action dismissed for that reason.

. 40 O.S.1991 § 196.1 (the so-called Little Davis-Bacon Act).

. Okl., 918 P.2d 26 (1996).

. For City’s prospective reach, see supra note 2 at 32-33 (supplemental opinion on rehearing).

. City, supra note 2 at 32-33.

. Okl., 921 P.2d 363 (1996).

. See Prime, supra note 5 at 366 (Opala, J., dissenting), where I refused to join the court's holding that a laborer's claim could not withstand the employer-subcontractor’s constitutional attack on the prevailing-wage clause, although the challenge was not rested on the invalidity of the general contract for the job in question and was first launched at the rehearing stage in the Court of Appeals.

. A viable controversy is one in which an appellate court can grant effective relief. Morton v. Adair County Excise Bd., Okl., 780 P.2d 707, 711 (1989); Rogers v. Excise Board of Greer County, Okl., 701 P.2d 754, 761 (1984).

. Lawrence v. Cleveland County Home Loan Auth., Okl., 626 P.2d 314, 315 (1981) Hamilton v. Investment Towers Corporation, Okl., 489 P.2d 488, 490 (1971); Wolfe v. Hart's Bakeries, Inc., Okl., 460 P.2d 950, 952 (1969); Edwards v. Hanna Lumber Co., Okl., 415 P.2d 980, 981 (1966); Carlton v. State Farm Mutual Automobile Ins. Co., Okl., 309 P.2d 286, 289-290 (1957); Duncan v. Sims, Okl., 277 P.2d 145, 146 (1954); City of Tulsa v. Chamblee, 188 Okl. 94, 106 P.2d 796, 798 (1940); Westgate Oil Co. v. Refiners Production Co., 172 Okl. 260, 44 P.2d 993, 994 (1935); In re Protest Against Referendum Petition No. 5, 185 Okl. 393, 92 P.2d 374, 375 (1939); Ham v. McNeil, 27 Okl. 773, 117 P. 207 (1911).

. Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977); DeFunis v. Odegaard, 416 U.S. 312, 316-317, 94 S.Ct. 1704, 1705-1706, 40 L.Ed.2d 164 (1974).

. A dispute ceases to present a lively "case or controversy” when the tendered issues are abstract, hypothetical or have become moot. Rogers, supra note 7 at 761; Lawrence, supra note 8 at 315; Edwards, supra note 8 at 981; Westgate, supra note 8 at 994; Payne v. Jones, 193 Okl. 609, 146 P.2d 113, 116 (1944); Wallace v. McClendon, 144 Okl. 39, 289 P. 354 (1930); De-Funis, supra note 9, 416 U.S. at 316, 94 S.Ct. at 1705. In Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975), the Court held there must be a lively controversy not only at the time the complaint is brought, but also when the case is reached for review on appeal or certiorari. “For a declaratory judgment to issue, there must be a dispute which 'calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.'" Ashcroft, supra note 9, 431 U.S. at 172, 97 S.Ct. at 1740 (quoting from Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 465, 81 L.Ed. 617 (1937)).

. Westinghouse Elec. Corp. v. Grand River Dam Auth., Okl., 720 P.2d 713, 720 (1986); Lawrence, supra note 8 at 315-316; Application of Goodwin, Okl., 597 P.2d 762, 764 (1979); Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948); Peppers Refining Co. v. Corporation Commission, 198 Okl. 451, 179 P.2d 899, 901 (1947); Payne, supra note 10 at 116.

. Morton, supra note 7 at 711; Lawrence, supra note 8 at 315-316; In re D.B.W., Okl., 616 P.2d 1149, 1151 (1980).

. The Commissioner of Labor informed Authority in 1991 that, if its building program costs exceeded $600,000, it .was required to pay the prevailing wage. Authority challenged that view by denying that it was a public body subject to the Act's prevailing-wage provisions.