City of Tahlequah v. Lake Region Electric, Cooperative, Inc.

OPALA, J.,

with whom WATT, V.C.J., KAUGER and SUMMERS, JJ., join, dissenting.

¶ 1 The court holds today that a municipal condemnor's right of eminent domain (to compel the sale of an electrical-generation system) is enforceable by a "special statutory proceeding" whose prosecution does not qualify as rested upon a "cause of action." Only the latter stands protected by the provisions of Art. V § 52, Ok. Const., 1 from retro *472 spective legislative tampering. 2 I cannot accede to this view. The Constitution's § 52 shield protects from retrospective repeal all those claims for which the courts are authorized to afford vindication by the law in force at a judicial proceeding's commencement. The instant condemnation case is hence included under the § 52 umbrella.

¶ 2 The phrase "cause of action" became a legal term of art that was to serve as a synonym and substitute for one's "right to a writ" under any form of action 3 -the legal parlance in use before the English pleading system came to be scuttled in the mid-nineteenth century on both sides of the Atlantic Ocean. 4 Because the substantive legal meaning of this troublesome phrase soon came to be enveloped in controversy, 5 the authors of *473 the Federal Rules of Civil Procedure (who began their work in the first third of the twentieth century) 6 discontinued its use in favor of the new term "claim." 7 Despite its multi-meaning facets, the phrase survived in legal parlance to signify an "alleged invasion of 'recognized legal rights' upon which a litigant bases his claim for relief" 8 Although scholarly analysis may still be discordant on many aspects, cases now appear to agree on the concept's core meaning which regards failure to state a cause of action as indicating a pleader's missed effort to show the invasion of legal rights.

13 Generally speaking, a cause of action came to denote that demand for which one is entitled to redress in a judicial proceeding. 9 The conceptual antonym of "cause of action" is not "special proceeding," but non-actionable detriment 10 (damnum absque iniuria). 11 The concept's analogue is the full range of judicially redressable disputes. 12 A condemnee's refusal to sell is actionable harm to the condemnor which becomes remediable by suit predicated on a condemnor's cause of action (against the con-demnee). Today's opinion incorrectly turns condemnation into a class of demands for which the law gives no redress, a patently wrong conclusion drawn from a flawed analysis. It ignores the undeniable legal verity that a condemnee's refusal to sell is the condemnor's redressable detriment for which the law affords judicial relief. 13

4 Special proceedings no longer form a separate litigation class in Oklahoma. 14 The *474 dichotomy of actions and special proceedings stands abolished by the 1984 Pleading Code. 15 In pre-1984 days, the distinction between a special proceeding and an action lay solely in how the courts were required to process certain extra-code procedural tracks. The adjective law of the state still confines its general pleading code to mainstream actions. It recognizes the existence of several separate procedural tracks reserved for application to proceedings that differ from mainstream actions." 16 "Special proceedings" is a term by which we continue to distinguish that litigation which is not governed by the general regime of pleadings. 17 Both "actions" and "special proceedings" must present for adjudication a redressable right" 18 one that is fit for judicial vindication. Condemnation is a suit to vindicate one's right to exercise the power of eminent domain. Its distinctiveness from other actions in the mainstream lies solely in matters of pleading, practice and procedure prescribed by law for the affordable redress, rather than in a categorical division for separation of redressable rights from nonactionable detriment. 19

¶ 5 A judicially pressed exercise of eminent domain power clearly presents a controversy over a juristic right. The demand hence constitutes a cause of action whose vindication is affordable in the courts. 20 The genre of procedural regime that must govern a matter in litigation is utterly immaterial in applying the Constitution's § 52 restriction on legislative interference with a pending cause of action. 21 Because this condemnation case was filed before the ban's enactment into a statute, 22 it stands unaffected by the legislature's later suspension of the city's right to exercise its eminent domain power. Inasmuch as I agree with the Eastern Dis-triet's [the United States District Court for the Eastern District of Oklahoma] refusal to dismiss the instant claim, I would state in answer to the question posed by the certify *475 ing court [the United States Court of Appeals for the Tenth Circuit] that Oklahoma's § 52 protection is invocable to save this litigation from the after-enacted statutory ban on some municipal acquisitions by condemnation.

Summary of Dissent

¶ 6 Claims governed by an extra-code regime of procedure are not necessarily excluded from the class of those prosecuted upon a "cause of action." Neither jurisprudence nor scholarly literature that followed the abolition of the writ system will support a pronouncement that the term "cause of action" was intended to be reserved for code-regulated litigation. 23 Condemnation claims are prosecuted upon a cause of action for acquisition of property by exercise of eminent domain power.

¶ 7 The court's pronouncement raises for the Field Code a claim that cannot be sustained-that of imparting cause-of-action attributes exclusively to those judicial proceedings in which its norms of procedure govern. The Field Code 24 confers no substantive rights" 25 It is, in its entirety, an adjective-law enactment. "The cause of action is based on the substantive law of legal liability .." 26 What is worse, today's conclusion, which rests on no known or identifiable authority, is enveloped in thick clouds of doubtful historicity.

The text of Art. V § 52, OKl. Const., is:

''The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has commenced on any cause of action, the Legislature shall have no power to take away such cause of action or *472 destroy any existing defense to such suit." (Emphasis supplied.)

The legislative act that suspends the municipal exercise of eminent domain power to acquire certain electrification plants is found in 11 O.S. Supp.1998 § 21-222, whose text is:

''There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 437.2 of Title 18 of the Oklahoma Statutes, initiated prior to July 1, 2002. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. If full consumer choice in the supply of electric power and energy is implemented in this state on or before July 1, 2002, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities or rural electric cooperatives contained in Section 437.2 of Title 18 of the Oklahoma Statutes ... [are] hereby repealed. If retail consumer choice is not implemented in this state on or before July 1, 2002, this moratorium shall become null and void. The moratorium provided herein shall have prospective and retroactive application."

After-enacted legislation replaces the above statute on which the certified question is based. The changes have no impact on this court's answer to the posed question. The new text eliminates the calendar-based time limit for municipal condemnation by providing that the ban shall remain in effect until the enactment of certain enabling legislation (affording consumers a choice among retail electric energy suppliers). The terms of 11 0.S. Supp.2001 § 21-222, the after-enacted amendment, provide:

"There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 437.2 of Title 18 of the Oklahoma Statutes, initiated prior to the enactment of electric restructuring enabling legislation and the implementation of consumer choice of retail electric energy suppliers. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. The moratorium shall remain in effect until the enactment of electric restructuring enabling legislation and implementation of consumer choice of retail electric energy suppliers. Upon such enactment of electric restructuring enabling legislation and implementation of consumer choice of retail electric energy suppliers, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities of rural electric cooperatives contained in Section 437.2 of Title 18 of the Oklahoma Statutes ... [are] hereby repealed. The moratorium provided for herein shall have prospective and retroactive application."

. This condemnation suit was filed in the District Court in Cherokee County, Oklahoma, on 18 May 1998. It was removed to the United States District Court for the Eastern District of Oklahoma on 19 June 1998. The statutory ban on acquisitions by eminent domain in contest here bears the effective date of 10 June 1998. The United States District Court for the Eastern District of Oklahoma denied the electric cooperative's motion to dismiss the case. It held that the municipality's quest to condemn presses a cause of action that was brought before the § 21-222 ban became effective. The case was allowed to proceed as one that stands protected by the § 52 shield.

. Koffler and Reppy, Hanpsoox or Common Law Preapinc 59, West Publishing Co. (1969).

. The reform that transformed the writ system into code pleadings was intended to advance the notion that cases should turn on their substantive merits rather than on the technical and tactical skill of the lawyer. Sommer v. Sommer, 1997 OK 123, ¶ 7 , 947 P.2d 512, 521 (Opala, J., dissenting) (citing Jack H. Friedenthal, Mary Kay Kane, Arthur R. Miller, Civ Proceours 238-39 (2d ed.1993)).

. The Field Code [the 1848 compilation first adopted in New York] required a litigant to allege "a plain and concise statement of the facts constituting each cause of action (defense and counterclaim) without unnecessary repetition." N.Y. Law 1851 c. 479 § 1. This facially simple formula came to have varied meanings in different contexts. See Sommer, supra note 4 at ¶7, at 521 n. 7 (citing David Mellinkoff, THe Lanauace or THE Law 17 (1963)) (quoting Buack's Law Dictionary 279 (4th ed.1951)). Two theories came to be *473 accepted for testing the "cause of action." The "primary right" theory, advanced by Professor Pomeroy, relates to the nature of the injury alleged to have been suffered. The "aggregate of operative facts" doctrine, first proposed by Professor (later Judge) Clark, focuses solely on the events that give rise to a claim (or claims) for relief. See Sommer, supra note 4 at 17, at 521 n. 7 (citing Friendenthal, supra note 4). The term came to be so "encrusted with doctrinal complexity" that the drafters of the Federal Rules of Civil Procedure saw fit to eliminate it altogether. Davis v. Passman, 442 U.S. 228, 237 , 99 S.Ct. 2264, 2273 , 60 L.Ed.2d 846 (1979), Elliott v. Mosgrove et al., 162 Or. 507 , 93 P.2d 1070, 1072-74 (1939). By substituting the word "claim" for the phrase "cause of action" the authors hoped to eliminate the conflicting notions about the code's meaning for the term. Blume, The Scope of a Civil Action, 42 Mice. L.Rev. 257, 261 (1943) (citing 1 Moore, Federal Practice 145 (1938)). For a more detailed discussion of the controversy that surrounded the "cause of action," see Davis, 442 U.S. at 238 , 99 S.Ct. at 2273 n. 15 (citing 2 J. Moore, Federal Practice 12.06, p. 259 n. 26 (2d ed.1978)); J Pomeroy, Code Remedies 459-466 (4th ed.1904); Wheaton, The Code "Cause of Action": Its Definition, 22 Cornet Lo. 1 (1936); Clark, The Code Cause of Action, 33 Yare 13. 817, 820 (1924).

. Robert Millar, Civic Procepure or tHe Triar Court m Historicar Perspective 61, New York University Press (1952); Mitchell, Ter Feperar Rutes or CiviL ProcepurE 75 et seq. in David Dudley Field, Can-TENARY Essays, New York University Law School (1949).

. In lieu of the term "cause of action," the Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Davis, supra note 5 at 422 U.S. at 238, 99 S.Ct. at 2273 n. 15 (citing Fep.R. Civ. P. 8(a)).

. Sommer, supra note 4 at ¶ 7, at 521 n. 7 (citing Davis, 442 U.S. at 237-38 , 99 S.Ct. at 2273 citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 , 69 S.Ct. 1457, 1463 , 93 L.Ed. 1628 (1949)); Koffler & Reppy, supra note 3 at 59.

. "[A] situation of state of facts that entitles a party to maintain an action in a judicial tribunal" is a cause of action. Bryant, the law of pleading under the codes of civil procedure 168-169, Little, Brown and Company (1894); Koffler & Reppy, supra note 3 at 25.

. "Actionable detriment" is addressed in Schaff v. Rose, 1925 OK 292, ¶¶ 3-5 , 111 Okla. 237 , 239 P. 458, 459 ; Chicago, Rock Island & Pacific Railway v. Beatty, 1914 OK 341 , 42 Okla. 528 , 141 P. 442, 443 ; Midland Valley R. Co. v. Larson, 1914 OK 41 , 41 Okla. 360 , 138 P. 173, 175 .

. The Latin phrase means harm for which the law provides no redress. Brack's Law Dictronary 398 (7th ed.1999).

. A "cause of action" is generally a union of the plaintiff's right with the defendant's infringement. Magnolia Petroleum Co. v. Norvell, 1952 OK 20, ¶ 6 , 240 P.2d 80, 81-82 . Koffler & Reppy, supra note 3 at 85.

. Watkins v. Board of Com'rs, 1918 OK 445 , 70 Okla, 305, 174 P. 523, 524-25 ; Koch et al. v. Oklahoma Turnpike Authority, 1953 OK 148, ¶ 18 , 208 Okla. 556 , 257 P.2d 790, 794 ; Public Service Co. v. B. Willis, C.P.A., 1997 OK 78, ¶ 11 , 941 P.2d 995, 999 .

. The terms of 12 0.S.1981 §§ 3-6, by which special proceedings were recognized as a class separate from actions, were repealed in 1984. The now-repealed text provided:

*474 § 3. Division of remedies

"Remedies in the courts of justice are divided into: First, actions. Second, Special proceedings."

§ 4. Action defined

"An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."

§ 5. Special proceedings

''Every other remedy is a special proceeding."

§ 6. Kinds of action

"Actions are of two kinds: First, Civil. ond, Criminal." Sec-

. It is the substantive-law essence of an action or proceeding-not its procedural attributes-that gives a quest for relief its characteristic as a cause of action. The pertinent provisions of 12 0.S.1991 § 2001 are:

''The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure." * * * (Emphasis supplied.)

The terms of 12 0.$.1991 § 2002 provide:

There shall be one form of action to be known as "civil action". (Emphasis supplied.)

. For the text of 12 0.$.1991 § 2001-2002 see supra note 15.

. Condemnation, like probate, adoption or juvenile cases, is a special proceeding because it is not entirely governed by the 1984 Pleading Code. Wilson v. Kane, 1993 OK 65, ¶ 6 , 852 P.2d 717, 721 ; Board of Law Library Trustees v. State, 1991 OK 122 , ¶ 5n.11, 825 P.2d 1285, 1288 .

. The term "right is generic, common, embracing whatever may be lawfully claimed." Wesley Newcomb Hohfeld, Funmpamentae Lecar Concrr-trons 35-36 (Walter Wheeler Cook ed., 1964) (citing Lonas v. State, 50 Tenn. 287 , 3 Heisk. (Tenn.), 287, 306-307 (1871)).

. "The cause of action is based on the substantive law of legal lability ...". Landry v. Acme Flour Mills Co., 1949 OK 170, ¶ 17 , 202 Okla. 170 , 211 P.2d 512, 515 (quoting Elliott v. Chicago, M. & St. P. Ry. Co., 35 S.D. 57 , 150 N.W. 777, 779 ).

. 'The cause of action is the thing done or omitted to be done, which confers the right to sue; that is, the wrong against the plaintiff, which caused a grievance for which the law gives a remedy." Greene v. L. Fish Furniture Co., 272 Ill. 148, 156 , 111 N.E. 725 ; Shipman, Handbook or Common-Law Preading 196 (3rd ed.1923).

. Although the legislature may abolish a cause of action, it is powerless to do so retrospectively. First Nat. Bank of Pauls Valley v. Crudup, 1982 OK 132 , ¶ 8, 656 P.2d 914, 916-17 . For the terms of Art. V § 52, OK. Const., see supra note 1.

. See supra note 2.

. Atkinson, Coptrication or PromarE Law 177 et seq. in David Dudley Field. Centenary Essays, New York University School of Law (1949).

. The meaning to be ascribed to the phrase here in contest within the context of § 52 must be informed by the concept's application and use in the practice under the Field Code during the first decade of the twentieth century, the period when the Oklahoma Constitution was drafted, proposed and adopted. The dissent's analysis is consistent with the teachings of that compilation's impact and understanding by contemporary scholarly, professional and judicial literature, national as well as Oklahoma's own. James Willard Hurst, Txs or American Law 90-92, Little, Brown and Company (1950); Lawrence M. Friedman, A History or American Law 340-347, Simon & Schuster (1973).

. Weems v. Melton, 47 Okl. 706 , 150 P. 720, 722 .

. Landry v. Acme Flour Mills Co., supra note 19 at ¶ 17 at 515.