# Boston v. Buchanan

> Supreme Court of Oklahoma · December 23, 2003 · 75 O.B.A.J. 10

URL: https://www.frixlaw.com/law-library/cases/9788951

## Case

- **Full name:** Melba C. BOSTON and Glen C. Boston, Plaintiffs/Appellants, v. Robert T. BUCHANAN, M.D., and Chester W. Beam, M.D. Individuals; Plastic and Reconstructive Institute; And Saint Anthony Hospital, Oklahoma City, Oklahoma, Defendants/Appellees
- **Court:** Supreme Court of Oklahoma
- **Decided:** December 23, 2003
- **Citations:** 75 O.B.A.J. 10; 89 P.3d 1034; 2003 OK 114; 2003 Okla. LEXIS 132; 2003 WL 22999488
- **Precedential status:** Published
- **Opinion:** Dissent by Opala
- **Judges:** Summers, Watt, Hodges, Lavender, Kauger, Boudreau, Hargrave, Winchester, Opala, -Dissents, Edmondson
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788951

## Opinion text

OPALA, V.C.J.,
dissenting.
¶ 1 The court mischaracterizes today the district court’s Rule 9(b) 1 dismissal authority by referring to it as drawn from “inherent power.” The erroneous use of the term elevates the process of statute-authorized rulemaking to a constitutional dimension. The question here is not whether Rule 9(b) may be converted in a proper context from its present status (as statutory) to that of one with a constitutional dimension, but whether, in the posture of this cause, it should be jurisprudentially boosted to a highér place in the hierarchy of legal norms. Convertibility of Rule 9(b) need not be tested; today it can be assumed. I write once again to condemn the court’s habit of improperly labeling the legal sources of judicial rulemaking power by indiscriminately boosting these norms to constitutional status.
I
TODAY’S SUA SPONTE ELEVATION OF RULE 9(b) PROVISIONS TO AN INHERENT-AUTHORITY LEVEL IS NEITHER NECESSARY NOR LEGALLY CORRECT A
Sources of State Law Are Divided Into Three Classes: Constitutional, Statutory and Common Law
The Common Law
¶ 2 The hierarchy for the state legal system’s three sources of law ascribes to the common law the lowest rank — that which follows after the State’s constitution and her legislative enactments. 2 By the mandate of 12 O.S.2001 § 2 3 the common law, whose corpus includes equity and ecclesiastical law, remains in full force unless explicitly modified (or abrogated) by statute or by the constitution. 4 The content of Oklahoma’s declared common law consists of judicial opinions as well as court rules. 5 The courts’ equitable and common-law authority is drawn from the text of § 2. 6
*1047
Statutory Law
¶ 3 The next legal source above that of the common law consists of statutory enactments. A statute-authorized rule, though of force equal to an enactment, must yield to any contrary legislation. 7 If there be conflict between a statute-authorized rule and enacted statutory law, the latter will control over the former. Another statute-derived class of judicial rulemaking is represented by rules that embrace statutory law within their provisions. That rule genre is akin to a statute. It continues in force so long as the statute remains in effect.
Constitutional Law
¶ 4 The highest legal source in the system is the state constitution, whether embodied in its text, caselaw or in a court rule. A slightly different echelon of constitutional power source is called “inherent.” State courts claim as “inherent in them” those constitutional powers which, though neither granted to nor withheld from them by the state constitution (and not found in any inferior source of the system), must nonetheless be conceded to the judiciary as a separate department of the government because them exercise is deemed absolutely essential (or reasonably necessary) for the performance of the courts’ constitutionally mandated mission. 8 The cardinal difference between constitutional-law sources and those of inherent powers is that the latter are drawn from the constitution’s complete textual vacuum (or from its mere silence). Inherent power can hence be destroyed by subsequent infusion into the vacuum of a discordant content. The use of inherent power may also be barred .by the constitution’s text that shows the claimed power’s absence or its allocation to another service of government. 9
¶ 5 This court’s inherent power finds an eloquent and legally correct recognition in In re Integration of State Bar of Oklahoma. 10 There, the court claimed for itself a constitutionally invested power to control and regulate the practice of law and the licensing, ethics and discipline of legal practitioners in this State. In the wake of In re Integration Oklahoma lawyers are presently licensed and supervised by a single body, centrally organized by the Oklahoma Supreme Court’s exercise of its claim to inherent power. Only an express constitutional amendment could now terminate that power’s use. In a later jurisprudential source, Puckett v. Cook, 11 the court also acknowledged that the judiciary’s inherent power is anchored to the constitution. There, it held unconstitutional a procedural statute restrictively regulating courthouse-level consolidation of cases for trial. Puckett, which teaches that circumscription of the judiciary’s power to run its own docket impermissibly invades the courts’ “inherent power,” explicitly concedes that in order to override a procedural statute the *1048 judiciary must draw its trumping authority directly from the constitution.
¶ 6 This State’s legislature statutorily recognizes that inherent power is indeed a source of law that commands from a rung higher than the common law and the body of statutory enactments. By the terms of 20 O.S.2001 § 24 12 the legislature set apart (from statute-rested rules) the courts’ inherent rulemaking authority. This recognition concedes that the latter class of court rules is indeed impervious to legislative tinkering.
B.
Statute-authorized Rules Do Not Rise To A Constitutional Dimension Drawn From The Judiciary’s “Inherent Power”
¶ 7 Court rúles are not a distinctly separate source of law. Their place in the hierarchy of legal norms depends in every instance on the underlying authority for each rule’s promulgation. If authority for a rule is drawn from the constitution, the rule itself takes on a constitutional dimension. If the power for the rule is derived from statute, the rule has statutory dimension. Lastly, if the rule is drawn from the body of common law, it has no more than common-law status. The legislature can by statute repeal any court-fashioned rule that rests either on common-law or statutory authority, but it is powerless to effect a change in constitutional law whose corpus embraces the regime of the courts’ inherent power. Rulemaking is one of three legitimate functions of the judiciary. The other two are adjudication and management. Judicial rule-making is characterized as the judiciary’s legislative function. Its use is severely restricted because Oklahoma’s judicial department is without constitutional lawmaking power over procedure. 13 That function belongs to the legislature. 14
¶8 Rule 9(b), adopted for the district courts together with many others, was promulgated under the aegis of the court’s explicit statutory authority. 15 The court’s promulgation power for all the provisions that constitute the Rules for the District Courts 16 was drawn not from the constitution but rather from legislative law. In short, Rule 9(b), when given birth, clearly was not intended to rise above the level of statutory law.
¶ 9 By today’s pronouncement the first two sentences of Rule 9(b) are said to restate one “aspect of a court’s inherent power recognized at common law.” In this context the court misuses the term “inherent power” by making it fit for application to norms inferior to those of a constitutional dimension. 17 By *1049 equating inherent power with the common law, the court has today impermissibly and erroneously elevated a statutory rule to one of a constitutional dimension. If the rule were, as the court pronounces, a product of the constitution-anchored inherent power, the legislature would indeed be impotent to' change its text by enacting a different procedural regime. Today’s elevation of Rule 9(b)’s status is neither necessary nor legally correct. The posture of this case does not call for testing whether the authority for Rule 9(b) provisions may be claimed to have been derived from inherent power and now qualifies their text for elevation to constitutional status.
C.
TODAY’S SUA SPONTE ELEVATION OF, A STATUTE-AUTHORIZED RULE TO A CONSTITUTIONAL DIMENSION OFFENDS THE TIME-HONORED PRINCIPLE THAT NOT EVEN THE PRESSED CONSTITUTIONAL ISSUES WILL BE REACHED FOR RESOLUTION IN ADVANCE OF STRICT NECESSITY
¶ 10 Elevating a statute-authorized rule to a constitutional level creates a new norm of constitutional law. It is incorrectly accomplished here sua sponte. This is so because there is absolutely no necessity for its creation. Even when a pronouncement is pressed for by the parties (and not made sua sponte, as the court does today), a constitutional -issue will not be reached in advance of strict necessity. 18 This sine qua non princi-pie of constitutional judicature is plainly ignored and patently offended today.
¶ 11 The sua sponte elevation of Rule 9(b), originally promulgated as statute-anchored and never before foreshadowed as having a pretense to constitutional status, gives that rule alone — out of many others — complete protection from legislative abrogation. Today’s sudden sua sponte shift in the Rule 9(b) status will likely produce an unwelcome legislative response and is apt to- dissuade the lawmaking body from its past practice of authorizing broad-scale judicial rulemaking.
¶ 12 I would not elevate to a constitutional dimension a norm of law, which initially came to life within the judicial system as statute-authorized, (a) in advance of strict necessity and (b) without adequate foreshadowing of the contemplated status change.
II
THE RECORD FOR APPEAL DOES NOT OVERCOME THE PRESUMPTION OF CORRECTNESS THAT ATTACHES TO A TRIAL COURT’S DECISION
¶ 13 The plaintiffs (appellants) have utterly failed to show that the trial court prevented them from raising issues that would protect the cause from dismissal on any discretionary ground. There is in this case absolutely no record of courthouse proceedings. A record of nisi prius oral proceedings may come to us in two different forms — that of a court reporter’s transcript 19 and that of a rule- *1050 authorized narrative report of evidentiary-proceedings, which was settled by the trial judge. 20 What is here qualifies as neither of these two. Before the court is only a counsel’s own version of the lawyers’ oral recitations below. The record prepared for our use fails to show any effort on the appellants’ part to adduce proof of any facts which would support an exercise of judicial discretion. Giving victory to the plaintiffs on this “record” ignores the law’s presumption that courthouse decisions are to be accepted as correct, and the burden of overcoming that presumption rests on the appellant. 21
Ill
SUMMARY
¶ 14 Rule 9(b) does not warrant today’s sua sponte elevation to a constitutional dimension. All of its provisions are statute-authorized and hence the power for their promulgation was undisputedly drawn from legislative delegation of authority rather than from a conscious act of invoking the constitution’s source of inherent power.
ORDER
Petition for rehearing is denied.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 19TH DAY OF APRIL, 2004.
WATT, C.J., HODGES, HARGRAVE, KAUGER, EDMONDSON, JJ., concur.
OPALA, V.C.J., LAVENDER, BOUDREAU, WINCHESTER, JJ., dissent.
. The terms of Rule 9(b), Rules For District Courts of Oklahoma, 12 O.S.2001, Ch. 2, App., are:
b. Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S. 1981 § 1083.
(emphasis supplied).
. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37 , 873 P.2d 983, 987 ; Tate v. Browning-Ferris, Inc., 1992 OK 72 , 833 P.2d 1218, 1225-26 .
. The terms of 12 O.S.2001 § 2 are:
The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.
. The common law’s legislative abrogation may not be effected by mere implication. Tate, supra note 2 , at 1225-26; Silver v. Slusher, 1988 OK 53 , 770 P.2d 878, 884 . It must be clearly and plainly expressed. McCormack v. Oklahoma Pub. Co., 1980 OK 98 , 613 P.2d 737, 740 . A presumption favors the preservation of common-law rights. Wright, supra note 2 at 987; State Mut. Life Assur. Co. of America v. Hampton, 1985 OK 19, ¶3 , 696 P.2d 1027, 1035, 1036 (Opala, J., concurring); Reaves v. Reaves, 1905 OK 32 , 82 P. 490, 495 .
. In this State’s legal system the common law forms "a dynamic and growing" body of rules that changes with the conditions of society. Wright, supra note 2 , at 987; McCormack, supra note 4 , at 740.
The federal system’s hierarchy of legal sources is different. There, the common law has an extremely restrictive use. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 , 101 S.Ct. 2061 , 68 L.Ed.2d 500 (1981); Cranfill v. Aetna Life Ins. Co., 2002 OK 26 , ¶ 12 n. 5, 49 P.3d 703, 707 . Because in the federal system the common law is not generally available as a source of judicial authority, federal jurisprudence on inherent powers does not always match Oklahoma's own law. Winters By and Through Winters v. City of Oklahoma City, 1987 OK 63, ¶ 3 , 740 P.2d 724, 729 (Opala, J., concurring in part and dissenting in part).
. The body of England’s customary or common law was known in the middle ages as that kingdom’s "unwritten law” — Regni Angliae lex non scripta. The common law and equity are now a single body of unwritten law. McCormack, supra note 4 , at 740; Mueggenborg v. Walling, 1992 OK 121 , 836 P.2d 112, 115 (Opala, C.J., concurring).
. Rules promulgated by the Supreme Court (which are not based on any identified statutory or constitutional authority) have the force and effect of law. They are binding upon litigants, courts and counsel, but must not contravene constitutional or statutory provisions upon the same subject. Eberle v. Dyer Const. Co., 1979 OK 49, ¶ 27 , 598 P.2d 1189, 1192-1193 ; Carlile v. National Oil & Dev. Co., 1921 OK 163, ¶34 , 201 P. 377 , 83 Okl. 217 ; see in this connection Northwest Datsun v. Oklahoma Motor Vehicle Com’n, 1987 OK 31, ¶¶ 14-15 , 736 P.2d516, 520; Adams v. Professional Practices Commission, 1974 OK 88, ¶ 11 , 524 P.2d 932, 934 .
. This definition of “inherent power,” expressed in Winters, supra note 5 , at ¶ 1 n. 1, at 728 n. 1 (Opala, J., concurring in part and dissenting in part), finds approval in Felix F. Stumpf, Inherent Powers of the Courts, Sword and Shield .of the Judiciary, Ch. II (Concept of Inherent Powers), Part A (Statement of the General Rule), p. 5- (The National Judicial College (1994)), quoting from Winters, supra note 5 , at ¶ 1 n. 1, at 728 n. 1 (Opala, J., concurring in part and dissenting in part). See also State v. Superior Court, 78 Ariz. 74 , 275 P.2d 887, 889-890 (1954); O’Coin’s, Inc. v. Treasurer of County of Worcester, 362 Mass. 507 , 287 N.E.2d 608, 613-614 (1972); Connors, Inherent Power of the Courts — Management Tool or Rhetorical Weapon? Just.Sys.J., pg. 63 (1973).
. Power withheld from the judiciary by an explicit provision of the Constitution may not be claimed as "inherent.” Inherent power, whose use is limited to that which is declared essential to a court's capacity for the discharge of its constitutionally mandated mission, always must be derived from the Constitution alone. While it need not be either expressed or even implied, it is never available for invocation if its exercise is explicitly prohibited by the State's supreme law.
. 1939 OK 378 , 95 P.2d 113, 114 .
. 1978 OK 108 , 586 P.2d 721 .
. The terms of 20 O.S.2001 § 24 are:
Nothing herein shall impliedly limit the rule-making authority which the Supreme Court inherently has or has by virtue of other statutory provisions.
(emphasis added).
. The rulemaking regime is different in those states in which a state constitution confers on the judicial department the power to legislate on matters of court procedure to the exclusion of the legislature. In those states procedural rules of the judiciary are of a constitutional dimension. This is so because the judiciary's power to make rules for the conduct of the courts' business is drawn directly from the constitution. For an interesting pronouncement on the line of demarcation that separates matters of procedure from those of policy-making substance see Winberry v. Salisbury, 5 N.J. 240 , 74 A.2d 406 (1950).
. Board of Law Library Trustees of Oklahoma County, State of Okl. v. State ex rel. Petuskey, 1991 OK 122, ¶ 10 , 825 P.2d 1285, 1289 .
. The terms of 12 O.S.2001 § 74 provide:
The Justices of the Supreme Court shall meet every two (2) years during the month of June at the capital of the state and revise their general rules, and make such amendments thereto as may be required to carry into effect the provisions of this Code, and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the Supreme Court, the district courts, the superior courts, the county courts and all other courts of record.
. Rules for District Courts of Oklahoma, 12 O.S.2001, Ch. 2, App.
. The court's pronouncement appears to have relied on the aberrational teachings, contained in many of this court’s past opinions, which equate inherent power’s exercise with the norms of equity and common law. That notion is at manifest variance with the hierarchical structure of legal norms in our system. It overlooks that norms crafted by use of inherent powers are drawn from the constitution. The identification of inherent power as that derived from equity and common law is clearly incorrect. See, e.g., Winters, supra note 5 (the trial court's authority to assess attorney’s fee and costs against a party's attorney is there described as an "inherent equitable power"); Orthopedic Clinic v. Jennings, 1971 OK 16 , 481 P.2d 139 (the trial court's *1049 power to vacate its own orders filed during the term is described as an "inherent equitable power”); Fleming v. Baptist General Convention of Oklahoma, 1987 OK 54 , 742 P.2d 1087 (the court refers to the "inherent common-law power” of courts over their judgments); Hassell v. Workman, 1953 OK 210 , 260 P.2d 1081 (the court describes the trial court's "inherent equitable power” as an instrument for preventing fraud or oppression). I would overrule all of these flawed pronouncements (and others of similar import) insofar as they impermissibly intermix inherent powers with those of equity or the common law.
. Where the legal relief sought is affordable on non-constitutional grounds, consideration of constitutional infirmities is deemed precluded by a self-erected "prudential bar” of restraint. The prudential rule of necessity, adhered to by all state and federal courts, teaches that constitutional issues must not be resolved in advance of strict necessity. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936) (Brandeis, J., concurring); In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶ 13 , 927 P.2d 558, 565 ; In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, ¶2 , 813-P.2d 1019, 1037 (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., 1987 OK 3, ¶ 2, n. 3 , 732 P.2d 466, 468, n. 3 ; I.N.S. v. Chadha, 462 U.S. 919, 936 , 103 S.Ct. 2764, 2776-77 , 77 L.Ed.2d 317 (1983). See also Schwartz v. Diehl, 1997 OK 115, ¶ 9 , 568 P.2d 280, 283 ; Dablemont v. State Dept. of Pub. Safety, 1975 OK 162, ¶ 9 , 543 P.2d 563, 564 .
. Rule 1.33, Oklahoma Supreme Court Rules, 12 O.S.2001, App. 1.
. Rule 1.30, Oklahoma Supreme Court Rules, 12 O.S.2001, App. 1.
. KMC Leasing Inc. v. Rockwell Standard Corp., 2000 OK 51, ¶ 12 , 9 P.3d 683, 688-89 ; Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9 , ¶ 15 n. 24, 870 P.2d 762 , 768 n. 24.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788951. Public record. Not legal advice.