Patterson v. Beall

OPALA, J.,

dissenting from the court's opinion.

T1 The court vacates today the Court of Civil Appeals' opinion, reverses summary judgment entered in a small claim as impermissible in the context of the Small Claims Procedure Act1 and remands the cause to determine whether the defendants' conduct constitutes an unfair trade practice under the Oklahoma Consumer Protection Act [OCPA]2

T2 While I do not recede from the court's disposition, I cannot join its Ayperglo-bal pronouncement that ignores the much marrower issues presented by the record. The question the court invoked sua sponte for today's reversal and now answers-whether summary process can be fitted into the legislatively crafted scheme of procedure for small-claims litigation-is a pure exercise in supererogation3 that produces no more than obiter dictuni.4 Without pausing to consider if summary process may arbitrarily be barred from a whole class of litigants, today's pronouncement lures lawyers into a false sense of security. This is so because the court stopped short of testing its superfi*849cial analysis by the mandated norms of uniformity and symmetry as well as by the notion of fundamental law's fairness that underlies Art. 5, § 46, Ok. Const.,5 to be examined together with state and federal due process standards and the Equal Protection Clause of the XIVth Amendment. Today's blanket summary-process ban from small claims is myopically literal, simplistically rigid and utterly insensitive to the state and federal constitutional commands. I would, on this record, leave undisturbed the trial court's utilization of party-initiated summary process whose use was not timely and frontally challenged as unauthorized for small claims. Instead I would reverse summary judgment as flawed and remand the cause for first-instance determination whether (a) the appraiser's conduct lies dekors the OCPA's purview as an agency-regulated activity and (b) the exterminator's allegations (of deceptive and unfair trade practices) are sufficient to support a breach of the OCPA.

I

THE ANATOMY OF LITIGATION

13 Jerry Patterson d/b/a Patterson Weed and Pest Control [Patterson or exier-minator] brought a claim against Lonnie and Bernice Beall [collectively called Beall or appraiser] for breach of contract and for violation of the OCPA.6 Beall pressed a counterclaim against the exterminator for (a) breach of contract, (b) "violation" of the OCPA, (c) quiet title and (d) specific performance. Both parties sought summary relief.7 Responding to these quests, the trial court disposed of the parties' claims by what it called "dismissal" and directed each of them to pay its own counsel fees.8 The law clearly requires that we treat the nisi prius dismissal as summary judgment.9 The Court of Civil Appeals affirmed. Only the extermanator appealed. The latter seeks relief by certiorari.

II

TODAY'S PRONOUNCEMENT IS HY-PERGLOBAL AND TOTALLY DETACHED FROM THE CON-OF THE RECORD

T4 The court's absolute ban of summary process from small-claims litigation is over-broad. It extends beyond the issues presented by the record.10 This case simply does not tender the issue whether summary-judgment *850practice may be utilized in small claims. The record offers a far less broad snippet of the procedure to be tested here. It poses the narrow question whether in this small claim it was reversible error to act upon the appraiser's quest for summary judgment on the exterminator's claim. That issue should be answered by holding no more than that summary relief was inappropriate because it is unsuited for resolution of disputed fact issues.

15 The appraiser sought summary relief from the exterminator's small claim and later pressed her own counterclaim. 'The exterminator (a) challenged the appropriateness of summary disposition based on his belief that the record presented disputed fact questions and (b) himself sought suramary relief from the appraiser's counterclaim. Neither party argued below that summary relief constitutes process inappropriate for use in small claims. Instead, both "expressly agreed that any litigant shall be free to file dispositive pre-trial motions...." 11 The appraiser's response to the petition in error notes that by agreement the parties submitted the case to the trial judge for resolution by summary relief The only negative expression about summary process is that found in the exterminator's supplemental brief on certiorari. There, without any further explanation, he refers to the "aberration of summary judgment in small-claims cases.12 "" Even if these remarks may be accepted as argument against the use of summary process in small claims, they came much too late at certiorari stage. In time-honored appellate practice they are to be dismissed as mere afterthought.13

T6 From a footnote comment in the exterminator's 19 May 1998 motion for summary judgment on the appraiser's counterclaim (cum response in opposition to the appraiser's renewed motion for summary judgment on exterminator's claim), the court takes a giant leap to conclude that the exterminator broadly challenged below, on due process grounds, the use of summary process in a small claim.14 The exterminator's eryptic comments are no more than a realistic observation about the limits of summary process when utilized in small-claims litigation. They fall short of a frontal challenge to the use of summary process in a small claim.

17 Today's broad pronouncement un-qualifiedly condemming summary process' *851use in small claims is clearly «unwarranted by the record.

IH

THE USE OF SUMMARY PROCESS RECEIVING TODAY'S SUA SPONTE BLANKET CONDEMNATION IS BANNED UPON A REVERSAL THEORY THAT WAS NOT URGED IN THE TRIAL COURT

18 An appellate court's jurisprudential gloss upon an issue not tendered by the aggrieved party for the judgment's reversal represents no more than gratuitous commentary and an exercise in futility.15 Because the exterminator did not press for the blanket ban of summary process at nisi prius, neither the intermediate appellate nor this court may (on certiorari) reach that issue on review. No reviewing court is free to give corrective relief on a theory not tendered by the aggrieved party for the judgment's reversal.16 Moreover, courts are not allowed to forecast what they might do about an issue that is not before them.17 Were the court affirming in this case a nisi prius refusal to consider summary process in the context of a small claim, its ruling could be rested on any applicable theory consistent with the record presented for review. A reversal, on the other hand, may neither be grounded on some theory invoked sua@ sponte nor on any pressed argument which lacks record support.18

T9 Simple prudence dictates that we eschew from reaching today-either directly or by dicta-the purely abstract question of whether summary process is to be entirely banished from small-claims litigation.

IV

NO TENABLE LEGAL BASIS EXISTS FOR BARRING LITIGANTS' ACCESS TO SUMMARY PROCESS

110 Today's rigid approach to the small-claims regime is ill-advised and short-sighted. The question is not how neatly summary process can be fitted into the statutory scheme of procedure for small-claims litigation, but whether there is a constitutional or statutory command for exeluding summary process from small claims. This record is barren of any tenable legal ground for globally depriving litigants of access to the valuable mechanism that summary relief affords. Summary process (a) is not condemned by the legislature, (b) if properly applied, bears mo characteristics injurious to fair and orderly procedure, and (c) poses no incongruity with the minimum standards of due process.

A.

The Small Claims Procedure Act Affords No Basis For An Across-the-board Condemnation of Summary Process

¶ 11 The only expression in the Act to which one may point as perhaps inhospitable *852to summary relief is that which prohibits discovery.19 Purely dilatory motions alone stand barred by the regime prescribed for the small-claims practice. Summary process is not in that rubric. It serves the very opposite purpose - that of accelerating a claim's disposition by isolating, in advance of trial, issues that are not in controversy.20 A motion for summary relief is not dilatory when, as here, discovery is either unnecessary or cam easily be limited to a mamage-ably microscopic dimension accomplishable by self-help.21 Summary practice also affords an effective and useful sereen against questionable or spurious claims and defenses.22 Depriving judges who hear small claims of this procedural device foists upon them lengthy trials that could easily be avoided.

112 Today's rigidity in construing the Act not only places undue constraints on the use of summary process, it also fails to examine the philosophical underpinnings that make small claims a distinct class of litigation.

B.

Rule 13 Does Not Bar Small-Claims Litigants from Access to Summary Process

€13 Summary process at nisi prius is governed solely by Rule 13.23 That rule does mot exclude small claims from the reach of summary-disposition practice. There is no rule-imposed impediment to deciding small claims by summary process, in whole or in part. Nor is there any obstacle to employing in small claims a "mini-form" of summary process that would authorize the judge to examine and decide "any individually and clearty defined fact issue that is claimed to be undisputed and shown to be supported solely by inferences consistent with the mov-ant's position in the case." 24

{14 The statutory time limits for bringing a small claim and for pressing summary *853relief do not raise an insurmountable barrier to this conclusion. Judges who hear small claims are clearly in charge of their dockets and may, if necessary, enlarge the statutory time limits to accommodate a nondilatory quest for summary relief 25 Recent legislative changes in the small-claims procedure, which have elongated the time for setting a claim to be heard from 80 to 60 days,26 are compatible with the summary process' use designed to eliminate both the expense and delay of trial when no material facts are at issue.

115 No litigant should be denied access to summary relief unless the use of that process is banned by the constitution or by an enactment that will pass fundamental law's muster. Since no such barriers are present here, today's hyperglobal pronouncement is utterly unwarranted.

V

THE RULE OF EXPRESSIO UNIUS EST EXCLUSION ALTERIUS IS INAPPLICABLE IN DETERMINING THE APPROPRIATENESS OF SUMMARY PROCESS IN THE CONTEXT OF SMALL-CLAIMS PROCEDURE

{16 The general rule that the express mention of one matter excludes other similar matters that are not mentioned 27 has no application here. The maxim is an auzsiliary rule of statutory construction, not an abso-tute norm of substantive law. It should be applied only as an aid in discovering legislative intent. It is never to be followed to the extent of defeating it.

T17 The Small Claims Procedure Act's reference, in 12 0.8.8upp.1994 § 1757,28 to motions for transfer of the cause to the general docket does not exclude resort to procedural devices that are consistent with the object of the Act-the efficient and prompt disposition of claims and defenses.29 The court may not infer from the mention of a motion to transfer that other motions stand excluded from small-claims procedure. A valid ground must first be raised for prohibiting a judge from entertaining the use of summary process in a small claim before that valuable procedural mechanism can be withheld from a litigant on that.docket. °

VI

TODAY'S ABSOLUTE EXCLUSION OF SMALL-CLAIMS LITIGANTS FROM THE BENEFIT OF SUMMARY PROCESS OFFENDS THE EQUAL PROTECTION CLAUSE

T18 Absolutely excising from the benefits of summary process every small-claims litigant, including even those who need not resort to discovery, is no less offensive to the Equal Protection Clause than subjecting prisoners to a different mode of trial (nonju-ry) for mental-health commitment from that which is accorded other persons.30 In both *854instances a valuable and critical procedural device is denied without any rational relation to some characteristic that would make the distinction free from an impermissibly discriminatory impact.31

119 A party litigant cannot be deprived of a valued procedural device, otherwise available in the district court to other litigants, unless the exclusion bears a rational relationship to the legitimate objective to be attained. The remedial objective of small-claims procedure is to prevent delay and foster expeditious decision-making.32 Only delay-causing discovery is banned. When utilization of summary process would cause no delay, there is no rational relationship between exclusion of summary process and the legislative purpose of eliminating delay.33

1120 Summary relief clearly is compatible with the speed factor that is legislatively infused. Its purpose is to eliminate the delay and the expense of a needless trial where there is no material fact issue to be examined.34 Today's myopically and absurdly rigid construction of the Act prohibits summary relief for all small-claims litigants where no discovery is required. This approach plainly offends due process and equal protection standards.

121 No delay component was present in this case. Both parties pressed for summary judgment in an effort to avoid a needless trial on the claim pressed by the other. New-ther party sought discovery. Summary judgment was resisted by the exterminator on the contention that fact issues made its application impermissible. The appraiser's counterclaim was summarily disposed of without the necessity of trial. On this ree-ord, today's hyperglobal jurisprudential treatment is plainly injurious to the bench and bar. It lures practitioners as well as judges into a false sense of security by not affording them an in-depth examination into the fundamental law's impact on the court's blanket condemnation of summary relief, total or partial.

VII

THE PROCEDURAL UNIFORMITY COMMANDED BY ART. 5, § 46, OKLCONST.,35 REQUIRES THAT SUMMARY PROCESS SANS DISCOVERY BE AVAILABLE TO SMALL-CLAIMS LITIGANTS

122 Today's pronouncement is insensitive to the constitutional norms of uniformity and symmetry. Art. 5, § 46, Ok. Const., mandates, in absolute terms, statewide procedural uniformity for an entire class of similarly situated persons or things.36 Its relevant terms expressly prohibit the legislature *855from regulating court procedure by disuni-form rules.37 Although directed to the legislature, the terms of § 46 are equally binding on the judiciary.38 This court's own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's prohibition against disuniform laws on prohibited subjects.39 Judicial procedure is a subject explicitly protected from legislative imvasion by asymmetrical regulation and hence also from the court-injected genre of disuniformity.

123 Today's across-the-board removal of small claims from the range of permissible summary-relief use destroys the symmetry of Oklahoma's summary-process regime and offends the uniformity-of-procedure mandate of § 46. The court's overbroad pronouncement denies all small-claims litigants that fundamental fairness in litigation process which is available to other suitors. Even if Rule 13 did explicitly bar summary judgments in all small claims-thus including those claims in which that relief could be pressed, in whole or in part, without resort to discovery-the breadth of its prohibitory seope would violate the norms of § 46. By today's pronouncement, which sua sponte singles out all small-claims litigants who need no discovery for less favorable treatment, the court destroys the very fabric of uniformity that the constitution commands.

VIII

SUMMARY

124 Today's overbroad pronouncement, in which the court, acting sua sponts, takes summary process out of the small-claims procedure under all circumstances, is obiter dictum- rank jurisprudential ballast of no efficacy. No litigant below or on appeal pressed for that relief To the contrary, summary process was invoked below by the parties' agreement to seek summary relief by their separate quests to escape liability on-the claim pressed by the other. The court today goes far beyond what is necessary to decide the case before it.

125 There is no basis for the myopically simplistic and excessively rigid notion that in small claims relief by summary process must be declared unauthorized. | This view finds no support in the constitution, the state statutes or in the court rules. The purpose of summary process, wherever invoked, is that of accelerating a claim's disposition by isolating, in advance of trial, issues not in controversy and by sereening out questionable or spurious claims and defenses. Today's overbroad and absolute ban is inconsistent with the Act's declared legislative objective. It also contravenes due process and equal protection norms as well as the procedural symmetry mandated by Art. 5, § 46, Ok. Const.

126 On this record, I would leave undisturbed the trial court's utilization of party-initiated summary process (which neither of them attacked below as unauthorized for small claims); I would reverse summary judgment as impermissible for this case and direct that the cause stand remanded for further proceedings to be conducted in the first-instance court.

. 12 0.$.1991 § 1751 et seq.

. 15 0.$.1991 § 751 et seq.

. The term "supererogation" means "the act or process or an instance of performing more than is required by duty or obligation ... [or] more than is necessary to complete an undertaking." Wesster's THirp New Internationat Dictionary at 2293 (1961).

. The term "obiter dictum" means "[al judicial comment made during the course of delivering a [court] opinion, but one that is unnecessary to the decision in the case and therefore not prece-dential (though it may be considered persuasive)." Brack's Law Dictionary 1100 (7th ed.1999) (emphasis added). "Because the precedent-issuing court has stepped beyond the bounds of its authority when it speaks law not essential to resolving the parties' dispute, its successor courts are free to dismiss such talk as nonbinding." Richard B. Cappalli, Tee American Common Law Merson § 2.18 at page 19 (1997). "Dissenting judgments are sometimes considered in order to clarify the statements of the majority." Rupert Cross, Precepent In Encuse Law 90 (1961).

. For the terms of Art. 5, § 46, OkL Const. see infra note 35.

. Supra note 2.

. There was no attempt below at discovery by either litigant. All the evidentiary materials attached to their separate motions and responses were secured otherwise than through discovery.

. The nisi prius court ruled as a matter of law that the OCPA could not be invoked in the parties' claims because (a) the appraiser's actions were neither deceptive nor an unfair trade practice within the meaning of the OCPA and (b) the appraiser had no counterclaim for breach of the OCPA as a result of her "earlier dismissal" of that demand. The trial court also determined that the appraiser's quest for specific performance and quiet title was beyond the parameters of a small claim. According to the trial court, there were no longer any issues to be tried because (a) the appraiser had paid the exterminator's termite inspection bill, (b) both liens (the exterminator's and appraiser's) had been released and (c) neither party had shown any other money damages.

. Where a motion to dismiss tenders for consideration materials defiors the pleadings, summary judgment procedure must be used and the resultant ruling be considered dispositive of summary relief quest. 12 0.$.1991 § 2012(B). See in this connection Ouellette v. State Farm Mut. Auto. Ins. Co., 1994 OK 79, ¶ 6, 918 P.2d 1363, 1365 n. 10; Dyke v. Saint Francis Hospital, Inc., 1993 OK 114, ¶ 7, 861 P.2d 295, 299; Norman v. Trison Development Corp., 1992 OK 67, ¶ 4, 832 P.2d 6, 8; Silver v. Slusher, 1988 OK 53, 16, 770 P.2d 878, 881 n. 8.

. See in this connection Richard B. Cappalli, supra note 4 at p. 37, § 3.13(b) (Broad Formulations):

Frequently the precedential court will fly far beyond the case facts before it and its reasoning on those facts by stating a holding of great generality.104 . A "holding" of great generality will necessarily emanate from a specific factual context - a particular judicial actor at a specific jurisdictional level performing a certain act, etc.-and this narrow factual context confines the breadth of the precedent, regardless of the writer's bold attempt, in the methods of the common law.

(emphasis supplied).

In footnote 104, § 3.13(b), at p. 37, supra note 4, Prof. Cappalli observes that overly broad formulations violate the "Wambaugh dictum that *850courts articulate the narrowest rule that justifies the decision," citing Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988 Wis. L.Rev, 771, 775-76 (1988)(where Collier discusses Eugene Wambaugh, Tas Stupy Or Cases: A Course Or Instruction (1894)). Cappalli points out that "Justice Powell has criticized Justices for writing more broadly than necessary to decide the particular facts and issues, thereby 'creat{ing] incentives for future attacks on the Court's opinions," ' Id. at 37, quoting Lewis F. Powell, Jr., State Decisis and Judicial Restraint, 47 Wash & Lee L.Rev. 281, 288 (1990).

. The "RECITATION OF AGREEMENT and ORDER" (entered 28 April 1998) states in part:

"NOW ON this 16th day of April, 1998 comes on for scheduling review the above captioned matter. The parties each appear by way of their undersigned attorneys and announce to the Court that notwithstanding any statutory ofr] decisional law to the contrary, it is expressly agreed that any litigant herein shall be free to file dispositive pre-trial motions in this matter _.. IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the parties herein shall be allowed to file any and all pre-trial motions ...."

(emphasis added).

. Exterminator's supplemental certiorari brief at pages 15 and 19.

. Non-jurisdictional issues, raised for the first time on rehearing or on certiorari, are generally unfit for review. See in this connection Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 23, 981 P.2d 1244, 1253; City of Oklahoma City v. State ex rel. Oklahoma Dept. of Labor, 1995 OK 107, ¶ 4, 918 P.2d 26, 32 (supplemental opinion on rehearing); First Federal Sav. and Loan Ass'n v. Nath, 1992 OK 129, ¶ 10, 839 P.2d 1336, 1342.

. The exterminator states at page 8 of his brief: "Plaintiff has never received an appraisal from Defendants.?" In footnote 1 he states: "Without the benefit of discovery, Plaintiff is unable to compel production of documents from Defendants, nor submit Defendants to a deposition or interrogatories. Pursuant to Rule 13 of the Rules for District Courts, parties can rely on depositions, admissions in the pleadings. stipulations, answers to discovery, affidavits and exhibits to either request or oppose summary judgment. Because we are within the small-claims procedure, only affidavits and exhibits are available. It seems then, that procedural due process would at least limit the consideration of these matters to purely questions of law and not questions of fact or mixed questions of law or fact."

. In discussing the impact of dicta, Professor Cappalli, supra note 4 at p. 39 § 3.14(b), states:

Another powerful tool in the grasp of the prec-edential court is to state the "law on issues and facts not before it. Here is the dramatic distinction between legislatures and courts. All "law" is potentially before the former; this is the lawmaking body supreme. It simply writes the laws it wants. The latter, the courts, have no such liberty. Their power is confined by the needs of the controversy before them. They can only issue the law necessary to decide that dispute. Any pronouncements beyond that need carry no badge of authority.

(emphasis added).

. Bane v. Anderson, Bryant & Company, 1989 OK 140, 133, 786 P.2d 1230, 1237; Mills v. Mills, 1973 OK 74, ¶ 32, 512 P.2d 143, 151.

. Hughey v. Grand River Dam Authority, 1995 OK 56, ¶ 10, 897 P.2d 1138, 1143-1144 (1995); Northeast Okl. Elec. Corp., Inc. v. Corporation Com'n, 1991 OK 28 ¶ 7, 808 P.2d 680, 683 n. 7; Westinghouse Elec. Corp. v. Grand River Dam Auth., 1986 OK 20, ¶ 17, 720 P.2d 713, 718. ''Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found." (Emphasis added.) Lord Halsbury's famous passage in Quin v. Leathem [1901] A.C. 495 at p. 506, quoted in Cross, Preceognt In Law, supra note 4 at 37.

. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶ 18, 873 P.2d 983, 992; Willis v. Nowata Land and Cattle Co., Inc., 1989 OK 169, 789 P.2d 1282, 1286-1287.

. The pertinent terms of 12 0.S.1991 § 1760 are:

* * * No depositions shall be taken or interrogatories or other discovery proceeding shall be used under the small claims procedure except in aid of execution. No new parties shall be brought into the action, and no party shall be allowed to intervene in the action. (emphasis added).

. Copeland v. Tela Corp., 1999 OK 81, 14, 996 P.2d 931, 932; Wynn v. Avemco Ins. Co., 1998 OK 75, ¶ 24, 963 P.2d 572, 576; Union Oil Co. of California v. Bd. of Equalization of Beckham County, 1996 OK 40, ¶ 10, 913 P.2d 1330, 1333; Reams v. Tulsa Cable Television, Inc., 1979 OK 171, 19, 604 P.2d 373, 376.

. What may be regarded as dilatory in summary relief process is not the motion for summary disposition but the need for discovery. When that need is absent because the materials are readily available or the discovery to be sought can judicially be confined to a manageably microscopic dimension, the underlying policy of the law should not be viewed as incompatible with relief by summary process.

. See, eg., McCreery v. Eli Lilly and Co., 87 Cal.App.3d 77, 87, 150 Cal.Rptr. 730, 736 (1978); Baron v. Mare, 47 Cal.App.3d 304, 307, 120 Cal.Rptr. 675 (1975).

. Rule 13 (Summary Judgment), Rules for District Courts of Oklahoma, 12 0.$.Supp.1993, Ch. 2, App. 1. The 1984 Pleading Code (12 O.S.Supp. 1984 § 2001 et seq.) contains no provision for regulation of summary dispositions either by judgment or by pre-trial elimination of uncon-troverted issues. The Code's omission is indicative of legislative intent to leave summary relief to regulation by the Supreme Court's rule-making. The Committee Comment to 12 O.S.Supp. 1984 § 2012 states in pertinent part that "...[the essential function of permitting the summary disposition of cases that do not involve any substantive dispute that justifies a full trial can be effectively handled under the summary judgment procedure of Oklahoma District Court Rule 13 ..."

. See Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 18, 987 P.2d 1185, 1193 (emphasis in original), which holds that Rule 13 is not applicable to postjudgment proceedings. By its very terms Rule 13 applies to prejudgment issues only. Id. at 118, at 1193. Unlike today, the court in Patel found no legal impediment to the use of summary process in any postjudgment vacation proceedings. Today's opinion should have, at a minimum, followed the wisdom of that precedent to encourage, for use in small claims, the Patel-approved mini-summary process, crafted there for application dehors the Rule 13 procedure, "to eliminate from adversary contest any individually and clearly defined fact issue that is claimed to be undisputed and shown to be supported solely by inferences consistent with the movant's position in the case." Id. at 118, at 1193 (emphasis in original).

. Hambright v. City of Cleveland, 1960 OK 184, 360 P.2d 493, 496.

. The terms of 12 0.S.Supp.2000 § 1767 (effective 7 June 2000) are:

The date for the appearance of the defendant as provided in the order endorsed on the affidavit shall not be more than sixty (60) days nor less than ten (10) days from the date of the order....

. This maxim, known as expressio unius est exclusio alterius, is an auxiliary rule of statutory construction to be applied with great caution and is not conclusive in the search for a statute's meaning. It is used only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the statute. Spiers v. Magnolia Petroleum Co., 1951 OK 276, 120, 244 P.2d 852, 856-857; Hardesty v. Andro Corp.-Webster Division, 1976 OK 129, 123, 555 P.2d 1030, 1036.

. The pertinent terms of 12 O.S.Supp.1994 § 1757 are:

A. On motion of the defendant, a small claims action may, in the discretion of the court, be transferred from the small claims docket to another docket of the court; ...

{emphasis supplied).

. Johnson v. Scott, 1985 OK 50, ¶ 14, 702 P.2d 56, 58 ("the purpose of the Small Claims Procedure Act is the disposition of speedy justice").

. The ban imposed today is as offensive to constitutional standards as that which the Court found in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 LEd.2d 620 (1966), where excluding convicts only from the benefit of jury trial was held to violate the XIVth Amendment. See *854also Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972).

. 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. Legislative classification which sets apart a class without any rational basis therefor offends that clause. In Wilson v. Foster, 1979 OK 45, 595 P.2d 1329, 1332, the court applied equal protection norms to command a jury trial for a litigant who was arbitrarily excluded. Its pronouncement was based on the teachings of Baxstrom and Cady, supra note 30.

. The terms of 12 0.$.1991 § 1761 provide:

** The hearing and disposition of such [small claim] actions shall be informal with the sole object of dispensing speedy justice between the parties.

(emphasis supplied).

. See in this connection Payne v. DeWitt, 1999 OK 93, ¶ 14, 995 P.2d 1088, 1090.

. Copeland, supra note 20 at ¶ 4, at 932; Wynn, supra note 20 at 124, at 576; Union Oil, supra note 20 at ¶ 10, at 1333; Reams, supra note 20 at ¶ 9, at 376.

. The pertinent terms of Art. 5, § 46, Ok. 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, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, * * *

(emphasis added).

. See Johnson v. Tony's Town Mister Quik, 1996 OK 138, ¶ 5, 915 P.2d 355, 357-58; Reynolds v. Porter, 1988 OK 88, ¶ 13-19, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, ¶ 12, 714 P.2d 198, 203-04.

. Maule, supra note 36 at 203-204; Reynolds, supra note 36 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 12, 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, ¶ 6, 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 36 at 822.

. Id.