Rollings v. Thermodyne Industries, Inc.

SUMMERS, Justice:

Up to now the Court has not squarely confronted this question: Is a private agreement to submit future disputes to statutory arbitration binding on a party to the contract who now prefers court resolution over arbitration?

Rollings, the patent holder of a design of a new industrial water heater, entered into a contract with Thermodyne to manufacture the water heater. The contract stated “[I]n the event of any dispute between the parties hereto relating to this Agreement, the parties hereby agree to arbitrate such dispute under the rules, regulations and guidelines of the American Arbitration Association.” The agreement also stated that the “agreement shall be deemed to be a contract made under the laws of the State of Oklahoma, and for all purposes shall be interpreted in its entirety in accordance with the laws of said State.” Apparently the parties expected this to be a very profitable venture, with sales in the millions of dollars.

A dispute arose, and Rollings, after sending a couple of letters to Thermodyne, filed suit in District Court. He sought a declaratory judgment, asking that the Court determine that the contract and license were terminated. Rollings also sought to prohibit Thermodyne from manufacturing and selling any more industrial water heaters using his patented design.

Thermodyne moved for an order compelling arbitration pursuant to the clause in the contract. The trial court denied Thermo-dyne’s request, holding that the arbitration clause in the contract was void because it unconstitutionally violated the Oklahoma Constitution, Article 2, Section 6 and Article 23, Section 8. The Court of Appeals reversed, holding that the arbitration clause did not violate the Constitution, observing that the arbitrator’s decision was subject to a limited review in the courts. We granted certiorari to resolve this important question.

Rolling’s argument is that the arbitration provision in the contract violates Oklahoma Constitution, Article 2, Section 6 and Article 23, Section 8.1 In essence, his argument is that the arbitration clause unconstitutionally deprives him of access to courts for future controversies such as this one. He claims that regardless of any modern public policies favoring arbitration, the Oklahoma Constitution sets rights in stone which he cannot waive and of which he cannot be deprived.

Oklahoma Constitution, Article 2, Section 6, reads:

The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and *1032for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.

Article 23, Section 8 states:

Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void.

A violation of Section 8 is dependent on the abridgment of some other state constitutional right. Thus, if no other state constitutional right has been violated, there is no Section 8 violation.

Thermodyne urges that Section 8 should not be interpreted literally, and asks that it “be applied broadly, not technically and restrictively.” First, Thermodyne points out that the Uniform Arbitration Act, 15 O.S. 1991 § 801 et seq., specifically mandates enforcement of the arbitration agreements. Thermodyne states that this statute can be aligned with Article 2, Section 6 (and thus Article 23, Section 8) because this Court has never interpreted access to courts to be absolute. Next, Thermodyne urges that even if it is a violation of access to courts, Rollings waived his right to access the courts. Ther-modyne gives several examples of instances in which the waiver of constitutional rights (such as waiver of jury trial in a criminal proceeding) has been upheld. Finally, Ther-modyne urges that modern public policy requires this Court to uphold the validity of arbitration clauses because it is an effective and efficient method of resolving disputes, and should be favored by this Court.

Under Section 8 we have invalidated agreements to release a party from all future liability arising out of a personal injury. Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990 (1921); Chicago, R.I. & P. Ry. Co. v. Smith, 77 Okla. 297, 188 P. 670 (1920). But the provision has not been interpreted literally and restrictively. For example, we have held valid an agreement permitting self-help repossession rather than requiring recourse in the courts. Helfinstine v. Martin, 561 P.2d 951 (Okla.1977) (held valid because the remedy of self-help was available at common law and thus was adopted at statehood). Interpreting this section, the Tenth Circuit validated plea bargains in criminal cases. Larsen v. Frazier, 835 F.2d 258 (10th Cir.1987).

As for Section 6, this Court has also declined a literal construction, although we have closely scrutinized actions which deny access to courts. In St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 919 (Okla.1989), we held that Section 6 “requires that a complainant must be given access to a court if he has suffered a wrong which is recognized in the law.” We also stayed with our prior observation that Section 6 operates as a mandate to the judiciary rather than a limitation on the legislature. See Wagoner County Election Bd. v. Plunkett, 305 P.2d 525 (Okla.1956). 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.2 The Legislature may repeal the actionability of certain behavior, as it did with the causes of action for seduction and alienation of affections. 76 O.S.1991 § 8.1; Wilson v. Still, 819 P.2d 714 (Okla.1991).

Further, we have held that Section 6’s protection does not require that the government waive all immunity in order to allow suits to proceed to court. Griggs v. State ex rel. Dept. of Transp., 702 P.2d 1017, 1018-19 (Okla.1985). Section 6 has most often be used to insure, regardless of status, that equal access to court is permitted. Jeffries v. State, 9 Okla.Crim. 573, 132 P. 823 (1913) (it violates the letter and spirit of Section 6 to deny access to court because a pauper cannot pay the fees and costs); Fiedeer v. *1033Fiedeer, 42 Okla. 124, 140 P. 1022 (1914) (married woman must be given access to court to prosecute an action against her husband).

Although the legislature is permitted to enact legislation to facilitate speedy resolution of differences, that legislation cannot be used to deny access to court. In Johnson v. Scott, 702 P.2d 56 (Okla.1985), the plaintiff was incarcerated, and brought a small claims action to retrieve some clothes left in the jail. The judge dismissed for failure to appear. We held that the legislature could set out a procedure to follow for small claims in order that they proceed quickly and smoothly. However, this procedure could not be construed to deny a plaintiff the right to present his claim.

ARBITRATION

Oklahoma has adopted the Uniform Arbitration Act. See 15 O.S.1991 § 801 et seq. The Act, in Section 802, states that the making of a written arbitration agreement confers upon the courts the jurisdiction to enforce the agreement to arbitrate any existing or future controversies.3 It further states the grounds which may serve as a basis to vacate the award by a reviewing court: (1) fraud, (2) bias of an arbitrator, (8) arbitrator exceeded his or her power, (4) hearing was not conducted fairly, (5) there was no arbitration agreement. Clearly, the Uniform Arbitration Act provides for judicial review, albeit limited.

We have on several occasions reviewed various statutes dealing with arbitration. Following the trend, we have stated that “courts generally favor arbitration statutes.” Voss v. City of Oklahoma City, 618 P.2d 925, 928 (Okla.1980). Arbitration allows for a speedy and less costly resolution of conflicts. Id.

There are different kinds of arbitration. Arbitration required by a statute is considered compulsory arbitration. Arbitration agreed to by private parties is referred to as voluntary arbitration. It is voluntary arbitration which is involved in the present case.

Oklahoma has reviewed arbitration in both the voluntary and compulsory setting. In Mindemann v. Ind. School Dist. No. 6, 771 P.2d 996 (Okla.1989), we invalidated an arbitration provision which required the last level of the grievance procedure to be submitted to binding arbitration. The provision was invalidated because a statute required that the school board have the decision-making power in such instance. We held that the school board could not “negotiate away” its statutory duties. Shortly thereafter, we invalidated an arbitration provision because it impermissibly delegated the school board’s authority to reprimand a teacher. Raines v. Indep. School Dist. No. 6, 796 P.2d 303 (Okla.1990).

In Voss v. City of Oklahoma City, 618 P.2d 925 (Okla.1980), the issue was whether the employee’s rights to proceed to District Court had been waived by the adoption of the collective bargaining agreement. The Court stated that while an agreement to arbitrate a future controversy was unlawful at common law, the common law did not apply because of specific legislation, the Fire and Police Arbitration Act. Thus, arbitration could cover a future controversy. The arbitration clause was upheld as the exclusive method of adjusting grievances.

As for voluntary arbitration, we have also addressed it in several contexts. The most recent is Cannon v. Lane, 867 P.2d 1235 (Okla.1993). In Cannon, a state employee sued an HMO 4 for bad faith. The HMO had contracted with the state to provide medical care. The issue was whether the HMO was an insurance company within the meaning of the Uniform Arbitration Act. We held that *1034it was, and as an insurance company it was expressly excluded from the Arbitration Act. We then had to decide the legal effect of the voluntary arbitration agreement between the HMO and the state. Because the Act was inapplicable we applied the common law rule, and refused to uphold the arbitration provision, stating that “agreements to submit future controversies are contrary to public policy,” citing Wilson v. Gregg, 208 Okla. 291, 255 P.2d 517 (1953), and Boughton v. Fanners Ins. Exch., 354 P.2d 1085 (Okla.1960). Aside from these cases, we noted that 15 O.S.1991, § 216 makes void any contract which restricts a party’s right to enforce his rights by the “usual legal proceedings.” In a footnote, we stated that we were not deciding the constitutional issue of whether the arbitration agreement was invalid under Section 8 of Article 23.

In Dean Witter Reynolds Inc. v. Shear, 796 P.2d 296 (Okla.1990), a party sued to enforce an arbitration agreement. The issue was whether Oklahoma’s fundamental law governed the contract or whether the choice-of-law provision required that New York law be followed. We did not directly address the validity of the arbitration provision because we held that the agreement was governed by New York law.

Long v. DeGeer, 753 P.2d 1327 (Okla.1988), presented another issue with regard to a private contract which included an arbitration clause. We upheld the arbitration provision, stating that the agreement on its face showed a clear intent to waive right to a jury trial. We did not specifically address the constitutionality of the arbitration clause because it was not raised by the parties.5

LEGAL APPROACHES OF OTHER STATES

Although more than thirty five states have adopted some form of the Uniform Arbitration Act, no other state has a constitutional provision like Oklahoma’s Article 23, Section 8.6 Generally, courts have upheld and enforced arbitration clauses.7

A few states have invalidated an arbitration clause under the “access to courts” provision of the state constitution. State v. Nebraska Assoc. of Public Employees, 239 Neb. 653, 477 N.W.2d 577 (1991); Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903 (Ohio 1976). In Nebraska Association, the Uniform Arbitration Act provided for binding arbitration when an arbitration clause was agreed to by the parties of a written contract. The Nebraska Supreme Court held the clause unenforceable, ruling that Nebraska had never enforced contract provisions which waive rights before a controversy has arisen. The Ohio Court found a limited review did not satisfy the access to courts requirement. Utah and New Mexico were faced with similar challenges in Barnhart v. Civil Serv. Employees Ins. Co., 16 Utah 2d 223, 398 P.2d 873 (1965) and Board of Educ. v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994). Both courts held the statutes unconstitutional, based on lack of access to courts.

Most states, however, which have considered the question of constitutionality have upheld arbitration statutes. In a later Utah *1035ease, Lindon City v. Engineers Constr. Co., 636 P.2d 1070 (Utah 1981), the Utah court upheld an arbitration clause. The court distinguished Barnhart, stating that after Barn-hart the legislature had amended the statutes to permit the waiver of rights to future controversies.

Colorado has upheld its arbitration statutes in the face of constitutional challenges. In State Farm v. Broadnax, 827 P.2d 531 (Colo.1992), a statute requiring arbitration in insurance contracts was challenged on the basis of access to courts and denial of jury trial. The insurer urged that because the statute did not provide for de novo review by a district court, it denied access to courts. The Colorado Court, relying on federal concepts of due process, held that the statute did not violate the right to access to courts because it gave the insurer a meaningful opportunity to be heard, that it allowed courts a limited review of the arbitrator’s award. The court also held that the right to jury trial was not violated.

New Hampshire Ins. Co. v. State Farm Ins. Co., 643 A.2d 328 (Del.1993) took a different approach in validating their arbitration statutes. There, the insurer urged that arbitration denied access to courts. The court held that access to court was not a fundamental right. Under the lesser standard of rational basis, the statute passed muster.

In Reicks v. Farmers Commodities Corp., 474 N.W.2d 809 (Iowa 1991), the commodities broker contended that he was denied access to court and a jury trial because of a compulsory arbitration clause. The court disagreed, and held that the binding effect of arbitration does not make it unconstitutional.8

At least seven states have upheld arbitration as a permissible infringement on the right to jury trial. Miller v. Two State Constr. Co., 118 N.C.App. 412, 455 S.E.2d 678 (1995); Reicks, supra; Broadnax, supra; Anderson v. Elliott, 555 A.2d 1042 (Me.1989); Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908 (Del.1989); Lumbermens Mutual Cas. Corp. v. Bay State Truck Lease, Inc., 366 Mass. 727, 322 N.E.2d 737 (1975); Nordenstrom v. Swedberg, 143 N.W.2d 848 (N.D.1966).9 While most did so in a conclu-sory manner, Miller relied on the Delaware case which held that the public policy of the state strongly favored arbitration.

Anderson v. Elliott, supra, upheld an arbitration statute which required attorneys to arbitrate with their clients if there was a fee dispute. The court took a novel approach, reasoning that because the Supreme Court had superintending control over the Bar Association and its members, it was constitutional for the Supreme Court to require arbitration.

Although the cases are varied in their results, the trend favors arbitration. Arbitration is a good method of resolving cases without resort to courts, and Oklahoma has recognized this with the enactment of the Uniform Arbitration Act, the Police and Fire Arbitration Act, and various statutes requiring arbitration for teachers. Most states have enacted the UAA in a form similar to that adopted by Oklahoma.

We believe that with the limited scope of review as provided in the Oklahoma Uniform Arbitration Act, the parties’ agreement is sufficient to pass muster under Section 6. After arbitration has been completed the parties may obtain judicial review of the arbitration award. This review insures that the arbitration process will be conducted fairly and without bias. This resolution maintains our long-standing interpretation of Section 6 as a mandate to the judiciary rather than a limitation on the legislature’s power to enact new laws. See Wagoner, 305 P.2d at 531.

*1036THE OKLAHOMA CASES

Rollings urges that Cannon v. Lane, supra, and the line of cases it relied upon prohibit us from validating the arbitration clause, because the clause operates to waive constitutional rights which arise in a future controversy. We disagree. In Cannon, we held that the contract in question did NOT fall within the provisions of the Uniform Arbitration Act, and was thus governed by our prior cases of Boughton and Wilson as well as by 15 O.S.1991 § 216.

In the present case the parties do not question that the contract falls under the provisions of the Uniform Arbitration Act. The terms of the contract expressly state that it does. Thus, Cannon is inapplicable, as it specifically dealt with a contract which was not subject to the Uniform Arbitration Act.

Neither Boughton nor Wilson prohibit this result. Those cases were decided long before the enactment of the Uniform Arbitration Act, and before the courts began to look on arbitration with favorable eyes. The reasoning in Wilson for invalidating an arbitration provision was because “they deprive the courts of jurisdiction and are contrary to public policy.” Id. at 529. No longer does Oklahoma disfavor arbitration. In fact, we have a strong public policy which favors it. See Taylor v. Johnson, 706 P.2d 896, 898 (Okla.1985); Voss v. City of Oklahoma City, 618 P.2d at 928. As we held in Voss, the common law rule prohibiting arbitration does not apply when there is specific legislative approval, such as there is here with the enactment of the Uniform Arbitration Act. We find the logic of Boughton and Wilson inapplicable to a private contract, executed after the legislative enactment of the Uniform Arbitration Act, in which the parties specifically agreed to an arbitration provision.

The fact remains that after we analyze every other state’s arbitration results, we are still the only state with an Article 23, Section 8. What is its effect on the arbitration clause? The solution lies in analyzing the true meaning of Article 2, Section 6, the only Constitutional provision argued by the parties to have been violated. For only if another part of the Constitution is breached can Section 8 be invoked.

Section 6, in affording a remedy “for every wrong” does not prohibit the Legislature from fixing the boundaries of what constitutes a “wrong”. See St. Paul, 782 P.2d at 919. It does not promise a remedy for every injustice; instead only those “wrongs” recognized by the Legislature are protected by Section 6. One of the elected Legislature’s jobs is to make public policy for the State. Okla. Water Resources Bd. v. Texas County Irrigation & Water Resources Ass’n, 711 P.2d 38, 41 n. 2 (Okla.1985); see also Stewart v. Rood, 796 P.2d 321, 329 n. 13 (Okla.1990). It is within the Legislature’s prerogative to change the common law to “reflect a change of time and circumstances.” St. Paul, 782 P.2d at 919. In this case the Legislature has said you may agree to arbitrate your dispute, and once you have done so, the courthouse door stands open to you if you have been the victim of fraud, bias, excess of power, or unfair procedure. Those things are now the “wrong” for which you have a judicial remedy. In a similar sense the Legislature has given you a “wrong” against the builder for injuries sustained only in the first ten years of a building’s construction, 12 O.S. § 109, and it has deprived you of a “wrong” for your spouse’s seduction or alienation of affections by another person. 76 O.S.1991 § 8.1 Wilson v. Still, 819 P.2d 714 (Okla.1991).

Finally, the statutory judicial review, though limited, provides court access to assure that your contract dispute is not resolved against you in an arbitrary, unfair manner. Fundamental due process is preserved.

We therefore hold that the arbitration provision in the contract between Rollings and Thermodyne is enforceable. The Court of Appeals’ opinion is vacated. This matter is remanded to the trial court for proceedings consistent with this opinion.

KAUGER, V.C.J., and HODGES, LAVENDER, SIMMS and HARGRAVE, JJ., concur. ALMA WILSON, C.J., and OPALA and WATT, JJ., concur in result.

. The amicus curiae, Oklahoma Trial Lawyers Association, urges that the arbitration clause is unconstitutional because it waives the right to a jury trial, a right guaranteed by Article 2, Section 19 of the Oklahoma Constitution. Neither Rollings nor Thermodyne raised or briefed Art. 2, § 19 of the Oklahoma Constitution. However, in City of Bethany v. PERB we held that mandatory arbitration required under 11 O.S.Supp.1985 § 51-111 did not violate Art. 2, § 19.

. The Court of Appeals, in Local Federal Bank v. JICO, 842 P.2d 368, 370 (Okla.1992), was faced with a Section 6 question. There the guarantors of a note signed an unconditional waiver which established their primary liability. The Guarantors asserted that the agreement violated Section 8 and Section 6's access to courts. The court held that the parties were free to bargain as they saw fit, even if the results are harsh. The waiver of rights was upheld. See also Founders Bank & Trust Co. v. Upsher, 830 P.2d 1355, 1364 (Okla.1992) (upheld a guarantor's waiver of rights — did not address the waiver in the face of Section 6).

. Section 802(A) states:

A. This act shall apply to a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties. Such agreements are valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract. This act shall not apply to collective bargaining agreements or contracts with reference to insurance except for those contracts between insurance companies.

. HMO is an abbreviation for a health management organization.

. The Court of Appeals, in Ditto v. RE/MAX Preferred Properties, 861 P.2d 1000 (Okla.Ct.App.1993), refused to uphold an arbitration clause which did not permit both parties to have a voice in the selection of arbitrators. The party seeking to uphold that arbitration provision urged that it was valid because of the appeal rights provided under the Uniform Arbitration Act. The Court of Appeals disagreed, holding that regardless of the right to appeal, the impartiality of arbitrators was essential. The court refused to address the constitutional challenges raised.

. The states which have enacted a form of the Uniform Arbitration Act are: Alaska, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wyoming. For a complete listing of the various statutory citations, see the preface to 15 O.S.1991 § 801.

.Benefits Communication Corp. v. Klieforth, 642 A.2d 1299 (D.C.App.1994); Des Moines Asphalt v. Colcon Ind., 500 N.W.2d 70 (Iowa 1993); Mountain Plains Constructors v. Torrez, 785 P.2d 928 (Colo.1990); Vukasin v. D.A. Davidson & Co., 241 Mont. 126, 785 P.2d 713 (1990); Docutel Olivetti v. Dick Brady Systems Inc., 731 P.2d 475 (Utah 1986). See generally 55 A.L.R.2d 432 (1957).

. See also Mahoney v. Doerhoff Surgical Serv., 807 S.W.2d 503 (Mo.1991) (constitutional under the access to courts and jury trial provisions to require a screening of medical malpractice claims before a lawsuit could be brought).

. But see Williams v. Williams, 110 Nev. 830, 877 P.2d 1081 (1994), wherein the Nevada Supreme Court invalidated a section of the Uniform Arbitration Act because it violated the right to jury trial. "For a form of alternative dispute resolution to pass constitutional muster, it must not place too great a restriction on the right to a jury trial.” Id. at 1083. The court indicated that a different result might obtain if the arbitration clause had been voluntary.