dissenting.
¶ 1 A party seeking certification of a class action has the burden of satisfying all four of the requirements prescribed by 12 O.S.1991 § 2023(A), and at least ope of the criteria prescribed by 12 O.S.1991 § 2023(B).1 In this *302case, it is uncontroverted the only matter remaining is the proper payment and distribution of funds lawfully due to various persons pursuant to Oklahoma statutes. While the decision in Sholer I is important, each person’s claim for refund must be individually evaluated. In my opinion, Appellants cannot satisfy the requirement of § 2023(A)(2) I hold it was error for the court to certify Class A. We should hold the trial court correctly denied certification of a “Class B”.
¶ 2 While the failure to meet the requirements of § 2023(A is sufficient to deny certification of Class A or Class B, I note Appellants failed to establish that any one of the requirements of § 2023(B has been satisfied. In particular, Appellants failed to show that a class action is superior to other available methods for the fair and efficient adjudication of whatever controversy exists. See § 2023(B)(3). The evidence revealed that DPS would voluntarily pay all refunds required under Sholer I without class certification, subject only to availability of funds, and already had paid hundreds of claims.
¶ 3 In support of its decision to allow class action, the majority states “DPS argues that its commissioner testified that DPS planned to voluntarily provide the refunds and that therefore, a class action is unnecessary. However, the evidence indicated that, while DPS had undertaken to provide refunds for 1,300 potential class members, DPS had not received an appropriation for the five million dollars it estimated would be required to provide refunds to all who overpaid reinstatement or additional fees.” However, in direct contradiction, the majority states later in its opinion “The trial court correctly noted that the source of the refunds was not relevant to the issue of , certification. How to pay a judgment entered against it is a matter for DPS determination after judgment.” I agree with the second statement. It is not within the purview of the judiciary to “legislate” where or how DPS will pay the refunds. We must not base our decision on the question of how payments may be paid. The power to make appropriations (or failure to do so has been delegated to the Legislature by our Constitution, and courts have no authority to inquire into motives of the Legislature. Oklahoma Const. Art. 10, §§ 2, 23. See, Davis v. Childers, 1937 OK 728, 181 Okla. 468, 74 P.2d 930.
¶ 4 In Sholer I, the Supreme Court held the trial court erred when it certified the case as a class action without first conducting an evidentiary hearing to determine whether the statutory grounds existed. That case was remanded with directions to the court to hear evidence before certifying or refusing to certify the class. There was no latent edict in Sholer I, to hold that a class action was warranted.
¶ 5 I respectfully dissent.
.12 O.S.1991 § 2023 provides in pertinent part:
A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:
1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.
B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied and in addition:
1. The prosecution of separate actions by or against individual members of the class would create a risk of:
a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
b. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or *3023. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
a.the interest of members of the class in individually controlling the prosecution or defense of separate actions,
b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
d. the difficulties likely to be encountered in the management of a class action.