Raines v. Independent School District No. 6 of Craig County

OPALA, Vice Chief Justice,

concurring.

I concur in the court’s opinion and in its judgment. I write separately to counsel once again against facile safe-harbor assumptions by voicing my genuine concern over the constitutional efficacy of a promise-based arbitration clause here in contest. It appears to offend Oklahoma’s constitutional prohibition against express or implied contractual waiver of benefits con *305 ferred by the state’s fundamental law. 1 Art. 23 § 8, Okl. Const. 2 Unlike other forms of waiver known to law, the contractual waiver interdicted by this section is one in the form of a promise to surrender a state constitutional benefit that may become one’s due in the course of the parties’ contractual dealings. 3

A general provision in a contract that all or some differences between the parties arising under its terms are to be settled by arbitration must surely be acknowledged as the promisor’s express or implied “waiver” of his/her constitutionally conferred benefit of reasonably unimpeded access to court for dispute resolution in accordance with the ordinary course of law. See Art. 2, §§ 6, 7 4 and 19, 5 and Art. 5 § 46, Okl. Const. 6 All these provisions of our state’s fundamental law, when construed together, unmistakably establish a “benefit” of equal treatment, under the applicable legal process, for resort to courts by all persons with litigable disputes. The other sections of our constitution — cited in the dissent as evidence of the drafters’ unqualified imprimatur for arbitration as a method of dispute settling — Art. 5 § 46, 7 Art. 6 § 21 8 and Art. 9 § 42, 9 — are not inconsistent with *306 Art. 23 § 8’s invalidation of promises to surrender one’s fundamental-law benefits. Section 8 strikes not at arbitration as a lawful or desirable method of dispute resolution, but solely at enforceability of private executory (or promissory) commitments to forgo the constitutionally conferred benefit of forensic process for contract-generated disputes. 10

The terms of Art. 23 § 8 clearly do not target the validity of all acts by which forensic access is renounced nor all forms of arbitration; their sweep is confined to promise-based surrender of a constitutional benefit that may arise in the course of a party’s contractual dealings. Nothing in § 8 precludes a waiver in praesenti 11 or one that is effected by conduct 12 (waiver in pais) 13 or by declaration. 14 In short, Art. 23 § 8 nullifies executory (or promissory) waivers — promises to surrender any benefit conferred by our constitution, 15

To summarize my view, § 8 makes legally unenforceable promises to relinquish the benefit of conducting litigation in ordinary courts for resolution of differences that may arise in the course of the parties’ contractual dealings. 16 Constitutional benefits may be waived in praesenti, by conduct or by intraforensic declaration, without offending the § 8 ambit of interdiction.

. For reference to my previous comment on this issue see Long v. DeGeer, Okl., 753 P.2d 1327, 1330 (1988) (Opala, J., concurring).

. The terms of Art. 23 § 8, Okl. Const., provide:

“Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." (Emphasis added.)

. Waiver is the intentional relinquishment of a known right. Faulkenberry v. Kansas City Southern Ry. Co., Okl., 602'P.2d 203, 206-207 (1979); Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). It is not a contract, Bertelsen & Petersen Engineering Co. v. United States, 60 F.2d 745, 747 (1st Cir.1932); it may be established by acts, conduct, declarations and even silence, as well as by express consent. Mitchell v. Kemp & Burpee Mfg. Co., 218 F. 843, 846 (3rd Cir.1915).

For" an explanation of the distinctions between waiver and election, estoppel, forfeiture, release and contract, see Ewart, Waiver, 53 Can.L.J. 206 (1917).

. The terms of Art. 2, § 6, Okl. Const., provide:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." (Emphasis added.)

The terms of Art. 2, § 7, Okl. Const., are:

"No person shall be deprived of life, liberty, or property, without due process of law.”

For exposition of the Art. 2 § 6 access-to-court right, see Brown v. Burkett, Okl., 750 P.2d 481, 482 (1988); Tulsa Tribune Co. v. Okl. Horse Racing Com'n, Okl., 735 P.2d 548, 554-555 (1987); Moses v. Hoebel, Okl., 646 P.2d 601, 604 (1982); Elam v. Workers’ Compensation Court of State, Okl., 659 P.2d 938, 941-942 (1983) (Opala, J., dissenting); Carter v. Carter, Okl., 783 P.2d 969 (1989).

. The pertinent terms of Art. 2, § 19, Okl. Const., are:

"The right of trial by jury shall be and remain inviolate....”

. The terms of Art. 5 § 46, Okl. Const., provide in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

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Regulating the affairs of counties, cities, towns, wards, or school districts;

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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....

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For limitation of civil or criminal actions; ******

Providing for change of venue in civil and criminal cases.”

By mandating uniformity of procedure this section implies that all citizens of the state shall have equal access to legal process according to the ordinary course of the law.

. See supra note 6.

. The terms of Art. 6 § 21, Okl. Const., provide: "The Legislature shall create a Board of Arbitration and Conciliation in the Department of Labor and the Commissioner of Labor shall be ex-officio chairman.”

This provision is not inconsistent with § 8 interdiction of executory (or promissory) waivers of constitutional benefits. It simply affords arbitration as a method of dispute resolution for those who may desire it.

. The terms of Art. 9 § 42, Okl. Const., provide: "Every license issued or charter granted to a mining or public service corporation, foreign or domestic, shall contain a stipulation that such corporation will submit any difference it may have with employees in reference to la *306 bor, to arbitration, as shall be provided by law.”

This provision does not bar either the corporation or the affected employee from resort to courts for vindication of their rights.

. A contractual provision by which the parties promise to surrender a right that may arise in the future has been called an executory waiver. See American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 320 (6th Cir.1950). Promissory waiver and executory waiver are synonymous terms and are used interchangeably.

. A waiver, when not effected by an enforceable contract, is like a gift in that it can only operate in praesenti (at the present time), when the right is available and known to exist. In re Irwin's Estate, 136 P.2d 940, 942 (1943); Roberts v. Griffith, 207 S.W.2d 443, 446 (Tex.App.1948); G.S. Johnson Co. v. Nevada Packard Mines Co., 272 F. 291, 305 (D.Nev.1920). Waiver by conduct is an excuse for nonperformance by the other party of a condition upon which liability depends and effectuates a change in the contractual relationship. Curran v. Connecticut Indemnity Co., 20 A.2d 87, 90 (Conn.1941). See also generally Segrest, Waiver and Estoppel, 20 Baylor L.Rev. 325, 332-333 (1968).

. See, e.g., American Locomotive Co. v. Gyro Process Co., supra note 9 at 320, where the defendant’s litigation conduct in a breach-of-contract action — actively participating in the suit and opting for a jury trial — amounted to a waiver of its contractual right to submit the dispute to arbitration; Lewis v. Steward, 204 Okl. 349 , 230 P.2d 455, 458 (1951), where plaintiffs waived strict compliance with a mining lease by making no substantial effort to collect any advance royalties or payment for coal used in the mine’s operation, but instead accepted payments made on carload lots alone; Kyle v. Massey, 177 Okl. 26 , 57 P.2d 595, 596 (1936), where landlord could have waived the statutory requirement of his written assent to an assignment of the lease by accepting rent from the assignee.

. Waiver in pais requires an affirmative, intentional act; "a passive, negative state of mind” is insufficient to effect a waiver by conduct. Hurley v. Farnsworth, 107 Me. 306 , 78 A. 291, 292 (1910).

. See, e.g., Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562 (1975), where a felony defendant waived his right to counsel by declaring to the trial judge that he wanted to represent himself.

. See, e.g., Pine Belt Lumber Co. v: Riggs, 80 Okl. 28 , 193 P. 990 (1920) (the court's syllabus ¶ 3), where an employment contract's provision, which absolved the employer of any future liability for injuries to the employee caused by the former’s negligence, was held void as violative of Art. 23 § 8, Okl. Const.

. Oklahoma's common law in force before its abrogation by the Uniform Arbitration Act, 15 O.S.1981r §§ 801 et seq. which became effective Oct. 1, 1978, appears to treat as unenforceable a promise to arbitrate a future controversy. See Boughton v. Farmers Insurance Exchange, Okl., 354 P.2d 1085, 1089 (1960). Although, according to Lord Campbell’s famous speech in Scott v. Avery, 5 H.L. 11, 25 L.J. [N.S.Exch.j 308, this adopted norm of the English common law may be of doubtful historicity, its disputed authenticity is irrelevant to the constitutional problem at hand. For a detailed discussion of the rule’s allegedly illegitimate pedigree, see Park Construction Co. v. Independent School Dist., 296 N.W. 475 (Minn.1941); Annot.: Validity of agreements to submit all future questions to arbitration, 135 A.L.R. 79 .