Nelson v. Nelson

OPALA, Justice,

with whom SIMMS, J., joins, dissenting in part.

¶ 1 Today the court gives its imprimatur to a local court rule (Administrative Order CV-95-1 [CV-95-1]),1 which requires all parties in every domestic case (divorce, separate maintenance, guardianship, paternity, custody or visitation actions) to complete a seminar entitled “Helping Children Cope with Divorce.” The rule authorizes the trial court to visit sanctions on noncomplying suitors. By its pronouncement the court informs the public that the underpinnings for the rule’s legitimacy are to be found in an after-enacted statute, 43 O.S.Supp.1997 § 107.2,2 which authorizes each judicial district to adopt its .own rules for managing a similar program. Because the rule is based on a reasonable classification — applying as it does to divorcing couples with children as distinguished from those who have none — the court declares that the rule does not fall within the prohibition of Art. 5, § 46, Okl. Const.,3 which absolutely forbids regulation of procedure by special law.

¶2 This ease is not about special law tainted by flawed classification. It is about local law that facially offends the § 46 prohibition against procedural rules which do not operate statewide. Unlike the court, I would condemn the judicial district’s rule as (a) local adjective law impermissible under Art. 5, § 46, Okl. Const.,4 (b) an encroachment upon the powers expressly reserved in the Supreme Court by Art. 7, § 6, Okl. Const.,5 and (c) an invasion of an individual judge’s decisionmaking independence. I would pro*1230nounce all local rules, promulgated under the authority of § 107.2, to be ineffective. This is so because their content would offend against the § 46 uniformity-of-procedure mandate and usurp the constitutional power of this court to implement the command of § 46 — on a statewide basis — by an exercise of its § 6 authority. Because today’s pronouncement so gravely contravenes Oklahoma’s fundamental law, I recede from the court’s opinion. My sentence of nullity for the local rule in contest would not limit any judge’s power to do, in individual litigation, what proof and discretion may require.

I

THE TRILOGY OF CONSTITUTIONAL PROVISIONS THAT AFFECT LEGISLATIVE POWER TO ENACT “SPECIAL” OR “LOCAL” LAW

¶ 3 Pertinent to an understanding of the rule’s infirmity are three constitutional sections that deal with the taint of “special” or “local” law — Art. 5, §§ 32,6 467 and 59.8

Art. 5, § 59, Okl. Const.9

¶ 4 Art. 5, § 59 mandates the law’s uniform application by enactment of general laws.10 By § 59 a special law is permissible' where a general law could not be made applicable. In assessing whether a statute is constitutionally permissible under § 59, a three-prong inquiry is to be made: (1) Is the statute a special or general law? (2) If the act is a special law, could a general law be made applicable? and (3) If a general law may not be made applicable, does the statute pass muster as a permissible special law?11

Art. 5, § 46, Okl. Const.12

¶ 5 Art. 5, § 46 mandates in absolute terms statewide procedural uniformity for an entire class of similarly situated persons or things.13 Its relevant terms expressly prohibit the legislature from regulating judicial procedure or inquiry before the courts by special or local law.14 A countywide (or •districtwide) rule of civil procedure is per se offensive to the notion of territorial (statewide) uniformity so absolutely imposed by § 46.

¶ 6 Although directed to the legislature, the terms of §§ 46 and 59 are equally binding on the courts.15 Our own jurispru*1231dence, no less than the legislature’s enactments, must faithfully conform to the fundamental law’s prohibition against disuniform (or non-uniform) laws on prohibited subjects.16

Art. 5, § 32, Okl. Const.17

¶ 7 The terms of Art. 5, § 32 provide a procedure to be followed in considering and passing local or special acts upon matters falling outside the prohibitory scope of the absolutely excluded § 46 subjects.18 The enactment of special or local acts on subjects expressly prohibited by § 46 is not to be deemed validated by compliance with the publication requirements of § 32.19

II

CLASSIFICATION THAT MAY BE TERMED PERMISSIBLE UNDER ART. 5, §§ 59 AND 46, OKL. CONST.

¶ 8 Classification was developed to test for fundamental-law conformity legislative acts challenged as violative of § 59.20 In Reynolds v. Porter21 classification was introduced to measure the constitutional orthodoxy of statutory limitations — a subject protected from disuniformity by § 46. Limitations do not constitute a monolithic subject; they operate on multiple classes ofliti-gation. To test limitations by the gauge of § 46’s absolute prohibition of disuniformity, Porter analyzed the enactment there under attack by the classification used in the common law for dividing different types of litigation into separate time-bar categories.22

¶ 9 Classification is still the test for legislative compliance with § 59 rather than for an act’s orthodoxy when it is measured by the § 46 uniformity-of-procedure mandate. Outside of limitations, the test for § 46 conformity of a challenged act is the presence or absence of uniformity. That is the sole standard this dissent applies to conclude that changing a rule of procedure for an entire class of litigation (recognized by our statutory law) and confining the operation of that change to less than the entire state makes the rule an impermissible “local law” within the meaning of § 46’s absolute bar against territorial disuniformity of Oklahoma’s adjective law.

Ill

THE LOCAL-AND-SPECIAL-LAW DISTINCTION IN OKLAHOMA’S FUNDAMENTAL LAW

¶ 10 An impermissible “special act” is one that deals with a subject already covered *1232by general law and gives that subject a treatment different from that accorded by general law.23 In contrast, an impermissible “local law” is one which has restrictive territorial application.24 The inevitable consequence of territorial restraint is that the litigants within the operational range of the rule will be given treatment different from that which, under like circumstances, suitors will receive elsewhere.25

¶ 11 None of the subjects prohibited by Art. 5, § ⅛6 may be dealt with by local law. Local law dealing with civil procedure (a subject included in the § 46 litany and protected against disuniformity) is invalid per se. The taint of locality does not stem from the vice of an impermissible classification.26 It consists of addressing a subject set aside in § 46 for uniform statewide operation by a law (or rule) that is not to be the same in the entire state.

IV

TODAY’S ANOINTMENT OF LOCAL RULE CV-95-1 CREATES A CONSTITUTIONALLY IMPERMISSIBLE TERRITORIAL DISUNIFORMITY IN CIVIL PROCEDURE, WHICH OFFENDS THE FUNDAMENTAL-LAW MANDATE FOR LIKE STATEWIDE PROCEDURE IN THE COURTS

¶ 12 We are not dealing here with an impermissible special law but with localization of adjective law by making it operative in but a single two-eounty district.27 Territorial disuniformity facially condemns the rule as a violation of the § 46 proscription against locally different procedure.28

¶ 18 No classification is implicated in today’s testing of the rule in contest. This is so because procedure must have uniform impact (a) in all judicial institutions of the same cognizance when they are processing like classes of litigation and (b) when they *1233are impacting similarly-situated suitors. The rule I would condemn today singles out litigants in the two-county district for a procedural treatment different from that accorded in like situations within the remainder of the state.29

¶ 14 In the final analysis, the 43 O.S.Supp.1997 § 107.2 grant of rulemaking power amounts in this case to an unconstitutional delegation to local courts (or to judicial districts) of a power whose exercise would offend the procedural-uniformity mandate of § 46.30 The legislature may not delegate to another body the powers that are expressly reserved by Art. 7, § 6, Okl. Const., in the Supreme Court.31 Today’s approbation of the rule here on review and of the legislature’s effort to invite adoption of local rules upon a subject that must have statewide uniformity, offends the constitutionally mandated single regime of proee-dure. It destroys the very fabric our fundamental law inexorably commands.

V

THE RULE ENCROACHES UPON THE INDEPENDENCE OF THE JUDICIAL DECISIONMAKING PROCESS

¶ 15 The rule under scrutiny here also is offensive to the norm pronounced in Yellow-eyes By and Through Gold v. Blevins.32, Blevins holds that an individual judge’s deci-sionmaking independence is protected from invasion effected by a court rule. There the court invalidated a local court rule that bound all Oklahoma County district court judges by a ruling (upon a novel point of law) earlier made by one of them. The mandatory character of the rule was condemned as an impermissible restriction on the independence of judicial decisionmaking process.

¶ 16 Because each trial court must decide independently whether the parties who stand before it should undergo the kind of training mandated by CV-95-1,33 the rule plainly Con*1234tradicts the teachings of Yelloweyes.

VI

THE COURT’S RESPONSE TO THIS DISSENT’S ANALYSIS RESTS ON A FACIAL LEGAL FALLACY

¶ 17 The court points to Wagnon v. State Farm Fire & Cas Co.34 for authority to create discrete subclasses. Wagnon is inappo-site. Under consideration there was a “special law,” while here we deal solely with an impermissible “local law”.35

¶ 18 The court relies on State ex rel. Wise v. Whistler36 for the notion that the legislature is not forbidden from inviting district courts to adopt local rules that would govern procedure in judicial districts. Whistler is clearly distinguishable. There, the legislature authorized district judges to prescribe rules for the regulation of county jails within the judicial districts in which they sit. Management of county jails is not a subject absolutely protected from territorial disuni-formity by Art. 5, § ⅛6. Statute-based or judge-prescribed nonuniform civil procedure in the district courts is plainly, absolutely and unequivocally interdicted by the command of our fundamental law. In the face of § 46’s uniformity-of-procedure mandate, the legislature is powerless to delegate to the district courts this court’s rulemaking authority in matters of procedure.37

¶ 19 In response to the court’s notion that the rule’s mandatory character is harmless because it does not determine the outcome of the cause (or the custody of the child), suffice it to say that adverse legal consequences do attach to a party’s failure to knuckle under the rule’s ukase.38

¶20 Lastly, in answer to the opinion’s comment that this court has not adopted uniform rules for the district courts, I would refer to the Rules for the District Courts of Oklahoma,39 which in various versions have been in force for several decades.

SUMMARY

¶21 I would condemn the rule under scrutiny here because it is “local” and affects a subject protected against territorial disuni-formity. The rule is hence violative of Art. 5, § 46, Old. Const. There can be no local tampering with a subject listed in § 46. No subject enumerated in § ⅛6 may be regulated by a law or rule that does not extend to the whole state. Flawed classification is hence not the essence of infirmity to be found in the rule under review today.

¶ 22 Today’s approval of the rule, as well as the pronouncement’s support for the authority conferred on local courts by the provisions of 43 O.S.Supp.1997 § 107.2, will doubtless serve as a license for spawning a different procedural regime in each judicial district. Both the legislature and this court are powerless to authorize local judicial institutions to adopt disuniform rules on subjects which, by the § 46 mandate, are required to have statewide application. The rulemaking powers expressly reserved to the Supreme Court by Art. 7 § 6, Okl. Const., may not be delegated to any other judicial body.40

¶ 23 My condemnation of the rule would not preclude any nisi prius court from ordering a party’s attendance of educational courses when its ruling is based on need shown and found to be present in a case sub judice.

. The pertinent terms of Administrative Order CV-95-1, adopted on May 12, 1995 by the District Court for the 11th Judicial District, are:

"... Section 1. This rule applies to all parties in all divorce, separate maintenance, guardianship, paternity, custody or visitation actions; or any modifications or enforcement of a prior court order in these actions, excluding domestic violence actions, filed on or after June 1, 1995, where the interests of children under 18 years of age are involved. The rule may be applied to all cases pending as of June 1, 1995 at the judge's discretion.
Section 2. All parties to such action shall successfully complete the seminar entitled ‘Helping Children Cope with Divorce’....
***
Section 5. Upon a party's failure to successfully complete the seminar pursuant to this rule, the judge assigned to the case may take appropriate action, including but not limited to the following:
a. The court may decline to hear the petition, application, motion or other request for relief of the party who fails to attend;
b. The Court may consider a party’s failure to attend as a factor in determining the best interest of the child; and
c. The Court may hold the party who fails to attend in contempt....” (Emphasis supplied.)

. The provisions of 43 O.S.Supp.1997 § 107.2 (eff. Jan. 1, 1997) are:

"A. In all actions for divorce, separate maintenance, guardianship, paternity, custody or visitation, including modifications or enforcements of a prior court order, where the interest of a child under eighteen (18) years of age is involved, the court may require all adult parties to attend an educational program concerning, as appropriate, the impact of separate parenting and coparenting on children, the implications for visitation and conflict management, development of children, separate financial responsibility for children and such other instruction as deemed necessary by the court. The program shall be educational in nature and not designed for individual therapy.
B. Each judicial district may adopt its own local rules governing the program." (Emphasis supplied.)

. The pertinent terms of Art. 5, § 46, Okl. Const., are:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
Regulating the practice or jurisdiction of ... in judicial proceedings or inquiry before the courts ... or other tribunals_” (Emphasis supplied.)

. See Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, 714 P.2d 198, 203-204.

. The pertinent terms of Art. 7, § 6, Okl. Const., are:

"... [Gjeneral administrative authority over all courts in this State, including the temporary assignment of any judge to a court other *1230than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules

. The terms of Art. 5, § 32, Okl. Const, are:

No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State.

. For the pertinent text of Art. 5, § 46, Okl. Const., see supra note 3.

. The terms of Art. 5, § 59, Okl. Const., are:

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.

. For the pertinent text of Art. 5, § 59, Okl. Const., see supra note 8.

. Reynolds, supra note 4 at 822; State of Oklahoma ex rel. Nesbitt v. District Court of Mayes County, 1961 OK 228, 440 P.2d 700, 703 syl. 1.

. Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1119; Reynolds, supra note 4 at 822.

. For the text of Art. 5, § 46, see supra note 3.

. Reynolds, supra note 4 at 822.

. Maule, supra note 4 at 203-204; Reynolds, supra note 4 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, 846 P.2d 1088, 1095-1096 (Opala, J., concurring). "Fundamental fairness cannot be afforded except within a framework of orderly procedure.” Joiner v. Brown, 1996 OK 112, 925 P.2d 888, 890, citing Pryse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 438. "' * * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.' " Joiner, supra at 890 n. 4, quoting from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951) (Douglas, J., concurring).

. Reynolds, supra note 4 at 822.

. Reynolds, supra note 4 at 822.

. For the text of Art. 5, § 32, see supra note 6.

. While Art. 5, § 32 requires the legislature to publish notice (in a specified manner) before the intended introduction of a special or local act, it does not authorize the enactment of such laws upon subjects expressly prohibited by Art. 5, § 46. Nesbitt, supra note 10 at 705.

. Nesbitt, supra note 10 at 705, citing Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Okl. 275, 114 P. 333, 336 (1911); White v. Infield, 122 Okl. 4, 250 P. 81, 82 (1926); Wade v. Board of Com’rs of Harmon County, 161 Okl. 245, 17 P.2d 690, 692 (1932); Leach v. Board of Com’rs of Mayes County, 173 Okl. 270, 47 P.2d 596 (1935); Missouri-Kansas-Texas Railroad Company v. Coryell, 1959 OK 175, 346 P.2d 935, 937.

. "Classification is essentially the same in law as it is in other departments of knowledge or practice. It is the grouping of things because they agree with one another in certain particulars and differ from other things in those same particulars.” Anderson v. Walker, 1958 OK 297, 333 P.2d 570, 574. As between the persons and places included within the operation of a law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination. Id. at 574 (quoting Haas v. Holloman, 1958 OK 174, 327 P.2d 655, 656); Nesbitt, supra note 10 at 704-705 (while certain subjects may be classified for legislative purposes, the classification adopted must be neither arbitrary nor capricious and must bear a rational relation to the object sought to be accomplished). It is arbitrary and capricious for the legislature to take a natural class of persons, split that class in two and then arbitrarily designate the dissevered faction of the original unit as two classes and enact different rules of law for the treatment of each. Anderson, supra at 574.

. Supra note 4.

. See in this connection City of Claremore v. Oklahoma Tax Commission, 197 Okl. 223, 169 P.2d 299, 301 syl. 4 (1946) (although upholding as constitutionally sound a three-year limitation period in a sales tax act, the court does not-*1232discuss the impact of Art. 5, § 46, Okl. Const., on the enactment).

. Reynolds, supra note 4 at 822. Special or local laws are those which single out less than an entire class of similarly affected persons or things for different treatment. A special law is one that rests on a false or deficient classification. "It creates preference and establishes inequity.” Barrett v. Board of Com'rs of Tulsa County, 185 Okl. 111, 90 P.2d 442, 446 (1939); Maule, supra note 4 at 203 n. 30; Dabney, supra note 14 at 1095-1096 (Opala, J., concurring).

. In Territory ex rel. Taylor v. School Dist. No. 83 of Oklahoma County, 10 Okl. 556, 64 P. 241 syls. 1, 2 (1901), the court states:

"1. The word ‘local,’ as a word of constitutional or statutory prohibition, signifies belonging or confined to a particular place, and relates only to a portion of the people of a state or their property. When applied to legislation, it signifies such legislation as relates to only a portion of the territory or state, or a part of its people, or to a fraction of the property of its citizens.
2. The word ‘special,’ when used in a statute prohibiting special legislation, relates to and distinguishes one section from others of a general class.”

. See, e.g., Nesbitt, supra note 10 at 705-706. Noting that Art. 5, § 46 prohibits special or local laws prescribing the powers and duties of county officers, the court held that nothing in Oklahoma’s fundamental law authorizes the legislature to impose upon an arbitrarily selected group of county officials duties which do not stand imposed upon like officials in other counties of the state. Id.

. Even a rational classification would not save a local or special act from the § 46 taint. That section absolutely condemns any disuniform law on a subject that is prohibited by its text. Reynolds, supra note 4 at 822-823. Court procedure is among the prohibited subjects. See the provisions of Art. 5, § 46, Okl. Const., supra note 3.

. This localizing effect subjects the people in the two-county district to a different legal treatment from that which is accorded similarly- or like-situated persons in the rest of the state. See Anderson, supra note 20 at 573-574.

. Territorial uniformity of procedure has had an interesting history in the federal system. The ABA movement for uniform federal procedural rules started with the proposition that the early congressional attempt by the enactment of the 1872 Conformity Act had failed, and that "lawyers had difficulty knowing what procedure would apply in any given federal district court.” See Stephen N. Subrin, Uniformity In Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits, 49 Ala L.Rev. 79, 80 (1997). Uniformity in the federal system is cast in three dimensions: (1) inter-federal district court uniformity (national procedural uniformity across all federal courts); (2) intrastate uniformity (uniformity in both state and federal court within a state) and (3) trans-substantive uniformity (the same procedural rules for different types of cases, regardless of what substantive law is applied). Id. at 79-80.

. Reynolds, supra note 4 at 823. The notion that procedural uniformity assures evenhanded treatment within the entire legal system finds expression in Oklahoma jurisprudence. In Williams v. Johnson, 1964 OK 188, 396 P.2d 518, the legislature enacted the District Court Conciliation Department Act, which created a conciliation department in the district court of counties having a population of more than 200,000 and less than 400,000. Because the act applied only to Tulsa County and there appeared to be no real and substantial distinction between Oklahoma and Tulsa Counties upon which varying treatment could be reasonably founded, the court held that the attempted classification of counties upon the basis of population offends the Art. 5, § 46, Okl. Const., uniformity-of-procedure mandate. In Anderson, supra note 20 at 573-574, the court (a) upheld the legislative act creating additional courts (juvenile court) in counties of more than 100,000 and less than 300,000 as general in application and complying with state fundamental law, but (b) condemned as arbitrary and capricious another part of the same act which provides for a different treatment (solely upon the basis of age) of male delinquents covered by the act from those in counties that are excluded from its operation. See also Killion v. Walker, 1959 OK CR 5, 334 P.2d 454, 457, adopting the rationale of Anderson.

. In Sterling Refining v. Walker, 165 Okl. 45, 25 P.2d 312, 317-20 syl.4 (1933), the court holds that the legislature cannot impose on the Supreme Court the nonadjudicative duty of writing rules for the Corporation Commission. That power would change the functions of the court from adjudicative to executive. The court may neither make policy for an administrative agency nor promulgate procedural rules for the conduct of its business. The separation-of-powers doctrine enjoined on this government by Art. 4 § I, Okl. Const., interdicts legislative encroachment upon the functions assigned by the constitution to some other branch. See Sterling, supra, and Earl v. Tulsa County Dist. Court, 1980 OK 157, 606 P.2d 545, 547.

. For the pertinent terms of Art. 7, § 6, Okl. Const., see supra note 5. See also Workers’ Compensation Court v. Merit Protection Commission, 1993 OK 145, 863 P.2d 1226, 1227; Chiles v. Children A, B, C, D, E and F, 589 So.2d 260, 263-264 (Fla.1991). The rule-making power of the Supreme Court is conferred not only by Art. 7, § 6, which invests the court with general administrative control over all inferior courts. It is also recognized in 12 O.S.1991 § 74. The terms of § 74 are:

The Justices of the Supreme Court shall meet every two (2) years during the month of June at the capítol of the state and revise their general rules, and make such amendments thereto as may be required to carry into effect the provisions of this Code, and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the Supreme Court, the county courts, the superior courts, the district courts and all other courts of record.

Eberle v. Dyer Const. Co., 1979 OK 49, 598 P.2d 1189, 1192-1193.

. 1985 OK 3, 696 P.2d 1026, 1027.

. For the pertinent terms of CV-95-1, see supra note 1.

. 1997 OK 160, 951 P.2d 641.

. For a discussion of the distinguishing characteristics of local and special law, see Part III supra.

. 1977 OK 61, 562 P.2d 860.

. Chiles, supra note 31 at 263-264.

. For the pertinent terms of CV-95-1, see supra note 1.

. 12 O.S.1991, Ch. 2, App.

. Chiles, supra note 31 at 263-264