Mahan v. NTC of America & Fireman's Fund Indemnity Co.

OP ALA, Chief Justice,

concurring.

The court has granted certiorari to review certain “jurisdictional facts” in an appeal from the Workers’ Compensation Court. Today’s opinion concludes that the claimant, when injured, did not stand in an employment relationship to the respondent. While I join in today’s holding, I write separately to explain the conceptual and historical underpinnings for Oklahoma’s appellate de novo examination of compensation claimant’s employment status and to reaffirm that review standard’s earlier birth and current dimension as a state constitutional-law norm.

I

STATE FUNDAMENTAL LAW MANDATES DE NOVO APPELLATE REVIEW OF DISPUTED EMPLOYMENT STATUS AS A “JURISDICTIONAL QUESTION”

This case presents a factual dispute over the status of a compensation claimant qua employee of the respondent-entity. This court has a firm and unswerving commitment to that jurisprudence of our state which views contested employment as a “jurisdictional question” in a claim 1 before the Workers’ Compensation Court. 2 While originally rooted in federal constitutional pronouncements, 3 this principle has since been woven into our own fundamental-law fabric. 4 It mandates de novo appellate re *808 view of a worker’s employment status in contest. 5 This means that corrective relief is accorded in appellate courts by plenary, independent, nondeferential re-examination of record facts. 6 The de novo standard of review is utterly nondeferential because it ascribes absolutely no weight to a lower tribunal’s findings. 7 The rationale for the principle is that employment status presents no ordinary facts. 8 It tenders for review facts that determine subject matter cognizance of the tribunal whence the case came. 9

Federal jurisprudence calls for mandatory de novo judicial review of all jurisdictional fact issues tendered before an administrative agency. This norm stands as a command of the federal due process. 10 Workers’ compensation law initially came to Oklahoma as a system of administrative adjudication. 11 It was then that de novo appellate review of jurisdictional facts tendered in a compensation claim came to be infused into the body of our own state due process clause. 12 The principle continues in effect today and its force remains undimin *809 ished even though the administration of present-date compensation regime has long passed from an administrative agency to a judicial institution. 13

II

THIS COURT’S COMMON-LAW CERTIO-RARI IS INVOCABLE TO REVIEW JURISDICTIONAL FACT ISSUES

Although in this case the employer timely invoked our certiorari cognizance under Art. 7 § 5, Okl. Const., 14 common-law cer-tiorari, whose authority derives from Art. 7 § 4, Okl. Const., 15 is also available to review the tendered jurisdictional issue resolved today — i.e., whether this claimant stood in an employment status vis-a-vis the party he had haled into court. 16 If appellate remedy be absent or ineffective, common-law certiorari generally lies in this court for review of facts bearing on subject-matter jurisdiction of the lower tribunal. In short, the writ is invocable to determine the question whether the lower court stayed within or exceeded its cognizance. 17

Ill

RULES 3.13 A 18 and 3.14 F, 19 WHICH WITHHOLD THE EXERCISE OF § 5 CERTIORARI REVIEW FROM CASES TENDERING SOLELY DISPUTED ISSUES OF FACT, DO NOT BAR OUR RE-EXAMINATION OF JURISDICTIONAL FACTS IN THIS CASE

Both the function of and the range of inquiry in common-law certiorari are estab *810 lished by our caselaw, 20 whereas the grounds for invocation of § 5 certiorari are rule-governed. 21 The legislature does not prescribe either the grounds for or the range of permissible inquiry in § 5 statutory certiorari to the Court of Appeals.

Rule 3.14 F specifically excludes from certiorari cognizance under § 5 the “merits of the appeal.” Rule 3.13 A lists the reasons that may be considered for certiorari power’s exercise under that section. These rules, when construed together, clearly negate the notion that a § 5 writ could be granted to re-test the sufficiency of facts that underlie a nisi prius decision (either judgment or decree). Our action today— allowing § 5 review to re-probe jurisdictional facts in a compensation claim— clearly does not offend the rule-governed restrictions on the availability of § 5 certio-rari process. Jurisdictional facts are not “facts on the merits” but rather facts determining the authority of the lower tribunal to act in a case.

SUMMARY

When a compensation claimant’s employee status stood in an appellate contest, this court may, in a § 5 certiorari proceeding, review the record de novo for a final settlement of the critical legal relationship in existence between the parties litigant when the injury occurred. In post-appeal stages, employment status of a compensation claimant may be re-examined de novo either in the framework of a timely commenced certiorari proceeding under § 5 or by common-law certiorari. For the issuance of the latter writ our power to grant corrective relief is drawn from § 4. 22

. See the provisions of the Workers’ Compensation Act, 85 O.S.1981 §§ 1 et seq.

. Brown v. Burkett, Okl., 755 P.2d 650, 651 (1988).

. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 , 40 S.Ct. 527, 528-529 , 64 L.Ed. 908 (1920); Crowell v. Benson, 285 U.S. 22, 56 , 52 S.Ct. 285, 294 , 76 L.Ed. 598 (1931).

.See McKeever v. Egbert, 170 Okl. 259 , 40 P.2d 32, 35 (1935), where we held that our due process clause in Art. 2 § 7, Okl. Const., has a definitional sweep that is coextensive with its federal counterpart (5th and 14th Amendments, *808 U.S. Const.). The terms of Art. 2 § 7, Okl. Const., provide: "No person shall be deprived of life, liberty, or property, without due process of law.” See also Black v. Ball Janitorial Service, Inc., Okl., 730 P.2d 510 , 513 n. 9 (1986); Harry R. Carlile Trust v. Cotton Petroleum, Okl., 732 P.2d 438 , 443 n. 25 (1986).

. In a de novo appellate review the court exercises its judgment independently and without deference to the findings of fact or to the legal rulings made below. Johnson v. Rodgers, 756 F.2d 79, 81 (10th Cir.1985); see also State ex rel. Oklahoma Bar Ass'n v. Perceful, Okl., 796 P.2d 627, 630 , 631 n. 3 (1990) (Opala, V.C.J., dissenting).

. In Salve Regina College v. Russell, — U.S. -, 111 S.Ct. 1217 , 113 L.Ed.2d 190 (1991), the Court holds that intermediate appellate courts in the federal system must review de novo state-law determinations of the U.S. district courts. There, de novo appellate review is variously described as "plenary", "independent” or "non-deferential”. The Court observes that "[wjhen de novo review is compelled, no form of appellate deference is acceptable.” Salve, supra, — U.S. at -, 111 S.Ct. at 1224 . See Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir.1987), where the court gave de novo review in a summary judgment case where a purely legal determination was involved; see also Vanguard Production, Inc. v. Martin, 894 F.2d 375, 377 (10th Cir.1990), a legal malpractice action in which the court reviewed de novo the district court’s conclusion of law drawn in its summary judgment process.

. Salve Regina College v. Russell, supra note 6, — U.S. at-, 111 S.Ct. at 1224 ; Johnson v. Rodgers, supra note 5 at 81; State ex rel. Oklahoma Bar Ass'n v. Perceful, supra note 5 at 631 n. 3 (Opala, V.C.J., dissenting).

. Ordinary facts are those which are "necessary in the routine of administering the relief’ or "the propriety of provision for administrative determinations." McKeever Drilling Co. v. Egbert, supra note 4 at 40 P.2d 35 , quoting Crowell v. Benson, supra note 3, 285 U.S. at 56 , 52 S.Ct. at 294 . In McKeever supra note 4 at 40 P.2d 36 , the court announced that in reviewing an award of the then compensation commission, it will not accept as conclusive that entity’s findings of fact upon a jurisdictional question; rather, it will weigh the evidence and make its own "independent determination of fact” upon the record submitted.

. In Brown v. Burkett, supra note 2 at 651 n. 6, we stated that: "Because the error sought to be corrected is one from resolution of a jurisdictional fact issue, no deferential standard of review may be accorded here to the trial tribunal’s finding of employment status. On non-jurisdictional fact issues we accept as binding the trial tribunal findings, if they are supported by any competent evidence.”

. Ohio Valley Water Co. v. Ben Avon Borough, supra note 3, 253 U.S. at 289-291 , 40 S.Ct. at 528-529 . There, the Court holds that as a matter of due process binding upon the states, the appellate court must give judicial review de novo for appellate resolution of all jurisdictional fact issues coming from administrative agencies. See also Crowell v. Benson, supra note 3, a case arising under the Longshoremen’s and Harbor Workers’ Compensation Act which authorized the administrative body to award compensation (a) when the master-servant relationship existed and (b) when the injury was received upon navigable U.S. waters. There, the Court said: “A different question is presented where the determinations of fact are fundamental or ‘jurisdictional’ in the sense that their existence is a condition precedent to the operation of the statutory scheme." (Emphasis mine.)

. Compensation law claims were formerly within the original cognizance of the State Industrial Commission, 85 O.S.1951 § 69.1; under the institutional scheme now in force, these claims are entertained by the Workers’ Compensation Court, 85 O.S.Supp.1990 § 1.2; see 85 O.S.Supp.1959 § 91 for the statute transforming the State Industrial Commission into the State Industrial Court.

. McKeever Drilling Co. v. Egbert, supra note 4.

. See supra note 11.

. The pertinent terms of Art. 7 § 5, Okl. Const., are:

"* * * When the intermediate appellate courts acquire jurisdiction in any cause and make final disposition of the same, such disposition shall be final and there shall be no further right of appeal except for issuance of a writ of certiorari ordered by a majority of the Supreme Court which may affirm, modify or make such other changes in said decision as it deems proper_” (Emphasis added.)

. The terms of Art. 7 § 4, Okl. Const., provide in pertinent part:

"* * * The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts.... The Supreme Court ... shall have power to issue, hear and determine writs of ... certio- rari_” (Emphasis added.)

. For the difference between common-law and § 5 certiorari, see Ingram v. Oneok, Inc., Okl., 775 P.2d 810, 812 (1989).

. Common-law certiorari is available for review of jurisdictional questions. Petitioners of School Dist. No. 9, Caddo County v. Jones, 193 Okl. 9 , 140 P.2d 922, 923 (1943); Application of State Board of Medical Examiners, 201 Okl. 365 , 206 P.2d 211, 214 (1949); Goodin v. Brown, Okl., 301 P.2d 652, 654-655 (1956); Board of Education of Ind. Sch. Dist. No. 20 v. Adams, Okl., 465 P.2d 464, 466 (1970).

. The terms of Rule 3.13 A, Rules On Practice And Procedure In The Court of Appeals and On Certiorari to that Court, 12 O.S.Supp.1991, Ch. 15, App. 3, provide in pertinent part:

"A. A review of an opinion of the Court of Appeals in the Supreme Court on writ of certiorari as provided in 20 O.S.1971, § 30.1 is a matter of sound judicial discretion and will be granted only when there are special and important reasons and a majority of the justices direct that certiorari be granted. The following, while neither controlling nor fully measuring the Supreme Court’s discretion, indicate the character of reasons which will be considered:

(1) Where the Court of Appeals has decided a question of substance not heretofore determined by this court;

(2) Where the Court of Appeals has decided a question of substance in a way probably not in accord with applicable decisions of this court or the Supreme Court of the United States;

(3) Where a division of the Court of Appeals has rendered a decision in conflict with the decision of another division of that court;

(4) Where the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings or so far sanctioned such procedure by a trial court as to call for the exercise of this court’s power of supervision."

.The terms of Rule 3.14 F, Rules On Practice And Procedure In The Court of Appeals and On Certiorari to that Court, 12 O.S.Supp.1987, Ch. 15, App. 3, provide in pertinent part:

"The petition, answer and reply shall not reach the merits of the appeal but rather pertain to reasons Supreme Court should review the decision of the Court of Appeals. The only matters considered on certiorari are the petition for certiorari and the response to the petition for certiorari. Briefs on appeal and *810 briefs in support of petition for rehearing are not considered on certiorari." (Emphasis added.)

. See e.g. caselaw cited in supra note 17.

. See Rules On Practice And Procedure In The Court Of Appeals And On Certiorari To That Court, 12 O.S.1981, Ch. 15, App. 3.

.For an explanation of the two distinct writs which parade under the same verbal garb, see Ingram v. Oneok, Inc., supra note 16.