Opposition Brief — Childs v. Oklahoma

Q)

No. 92-2043

IN THE

SUPREME COURT OF THE UNITED STATES

JUDITH CHILDS, Executrix of the Estate

of John Childs, Deceased,

and

RANDY HOOD,

Petitioners

vs.

STATE OF OKLAHOMA, ex rel.

OKLAHOMA STATE UNIVERSITY,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OKLAHOMA

BRIEF IN OPPOSITION

SUSAN B. LOVING

Attorney General of Oklahoma

SUE WYCOFF*

Assistant Attorney General

ANDREW TEVINGTON

Assistant Attorney General

4545 North Lincoln Boulevard

Suite 260

Oklahoma City, Oklahoma 73105

(405) 521-4274

*Counsel of Record

ATTORNEYS FOR RESPONDENT

July 12, 1993

™ BEST AVAILABLE COPY

2

QUESTIONS PRESENTED FOR REVIEW

Whether the United States Supreme Court

will substitute its interpretation of

Oklahoma’s Governmental Tort Claims Act

for the interpretation by the Oklahoma

Supreme Court?

Whether a bar to an action in tort

against the State of Oklahoma when a

potential litigant is covered by

worker’s compensation unduly interferes

with interstate commerce?

Whether removal of the ability to sue

the State of Oklahoma in tort when a

potential litigant is covered by

worker’s compensation violates due

process?

Whether creation of two classes of tort

litigants -- (1) those affected by torts

committed by the State or its political

subdivisions and (2) those affected by

torts committed by other persons --

violates equal protection?

3

Whether Oklahoma’s imposition of its own

law in a tort action arising from a

traffic accident in Oklahoma involving

a State of Oklahoma vehicle and a

privately owned Texas vehicle rather

than Texas law violates the Full Faith

and Credit Clause?

4

TABLE OF CONTENTS

Questions Presented for Review. .....2

memee GF Contents .....4+ 2s wes

Semee OF Authorities. .......4e2662-e 6

Summary of Argument .......... 10

Ew Us UtlUstlUctlU ltl tll tl ltl tl tll 13

Proposition I: The U.S. Supreme

Court is bound to accept the

Oklahoma Supreme Court’s

interpretation of Oklahoma .... 13

Proposition II: Oklahoma’s

Governmental Tort Claims Act

worker’s compensation exemption

applies equally to in-state and

out-of-state residents affecting

interstate commerce only

Es 6 « « 6 «© « 6-s « « 18

Proposition III: The ability to

Sue the State of Oklahoma in tort

is a privilege rather than a

property right — by the

Fifth Amendment. ... - * «es 18

Proposition IV: Oklahoma’s

Classification of tort victims

into persons affected by

government actions and those

affected by non-government

actions reasonably protects the

State Treasury, a legitimate State

ES eT

Proposition V: Oklahoma’s law

applies to the incident that gives

rise to this action because that

incident occurred wholly within

>

Oklahoma, giving the State the

most significant contact with the

OWOGG« «© « « © « 6) * © @& « & & €- 8 24

COMB IUMESON: « «4 a 6 * &. Ue SM ROS we eo 26

6

TABLE OF AUTHORITIES

Cases

Application of Schatz, 80 Wash.2d 204,

497 P.2d 153 (1972). ee

Attorney General of New York v. Soto-

Lopez, 476 U.S. 898, 106 S.Ct.

2317, 90 L.Ed.2d 899 (1986).

Brickner v. Gooden, 525 P.2d 632 (Okla.

1974). Be tet ons

Califano v. Gautier Torres, 435 U.S. 1,

98 S.Ct. 906, 55 L.Ed.2d (1978).

Great Northern Life Ins. Co. v. Read,

322 U.S. 47, 64 S.Ct. 873, 8S

L.Ed. 1121 (1944). pene

Gutierrez v. Collins, 583 S.W.2d 312

(Tex. 1979). a

Heller v. United States, 776 F.2d

92 (3rd Cir. 1985), cert.

denied 476 U.S. 1005, 106

S.Ct. 1948, 90 L.Ed.2d 358

(1986) ;

Hortonville Joint School District

No. 1 v. Hortonville Education

Association, 426 U.S. 482, 96

S.Ct. 2308, 49 L.Ed.2d 1 (1976).

Hughes v. Oklahoma, 441 U.S. 322, 99

S.Ct. i727, 60 L. Ba. 24 250

[eee a Sok ee are ee ee 6S,

Imlay v. City of Lake Crystal, 453

N.W.2d 326 (Minn. 1990).

a>

rr

yo

18

25

19

14

17

23

7

Kite v. Marshall, 661 F.2d 1027

(5th Cir. 1981), rehearing

denied 666 F.2d 591, cert.

denied 457 U.S. 1120, 102

S-Ct. 2934, 73 L.EG.2a 1333

re ee eee ee

Lewis v. BT Investment Managers,

ine, , 44/7 U.S. 27, 100 S.Ct.

2009, 64 L.Ed.2d 702 (1980). .. . 17

Lynch v. United States, 292 U.S. 571,

54 S.Ct. 840, 78 L.Ed. 1434

De 4 6 6 st ee a ee ws «6820

M. D. Anderson Hospital and Tumor

Institute v. Felter, 837 S.W.2d

maw Geese BOD. S992) « es et te tll 23

McCoy v. Providence Journal Co.,

190 F.2d 760 (1st Cir. 1951),

cert. denied 342 U.S. 894,

Ja S.Ct. 200, 96 L.Ed. 669

CE en pe go gg gw ee

Memorial Hospital v. Maricopa

County) 415 U.S. 250, 94 S.Ct.

1076, 39 L.Ed.2d 306 (1974). ... 20

Murphy v. Edmonds, 325 Md. 342,

Son meme OS (2902). « «= - « » « » 83

Nordlinger v. Hahn, _ U.S. ;

112 S.Ct. 2326, 120 L.Ed.2d 1

PCr LeeTy aos yy & «82, 22; 23

Reynolds v. Sims, 377 U.S. 533,

84 S.Ct. 1362, 12 L.Ed.2d 506

(1964), rehearing denied 379

U.S. 870, 85 S.Ct. 12, 13 L.Ed.

Oe, Pe ae a a ae a ey a ae” |

8

Sporhase v. Nebraska, ex rel.

Douglas, 458 U.S. 941, 102

S.Ct. 3456, 73 L.Ed.2da 1254

Pa eee n SAA aoe eee aa Ler a? ae

State by and through Colorado State

Claims Board of the Division of

Risk Management v. DeFoor, 824

P.2d 783 (Colo. 1992). ...... 23

Sturges v. Crowninshield, 17 U.S.

(Wheat. 4) 122, 4 L.Ed. 529

Saeaee os 4 ae ee a a ee

Turrentine v. Brookhaven, Miss.

School District, 794 F. Supp.

620 (S.D. Miss. 1992). ....... 23

Vanderpool v. State, 672 P.2d

Baws Gees SOOO ds ks 6 st we lw le

Wilson v. Gipson, 753 P.2da 1349

(Okie. 1968) ...4.++ss 8. &7, 23

Constitutional and Statutory Provisions

Okla. Const. art VII, §4....... 14

Okla. Stat. Tit. 51, §§ 151

et seq. (Supp. 1988) .....e.., 13

Okla. Stat. Tit. 51 § 152.1

(os BOD 6 oe es ere ce ele ec 19

Okla. Stat. Tit. 51 § 155

(28): (Ope. 1968)... « « « ww ew 19

Veme COMBE, OFt. IV, 61. ..«6 se cate 24

U.S. Const. amend. Vv. .....6... 20

U.S. Const. amend. XIV, §1.... a0, of

9

Other Matter

Restatement (2d) Conflict of Laws

§ 146, Comment d

Restatement (2d) Conflict of Laws

§ 147, Comment ad

10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JUDITH CHILDS, executor of

the Estate of John Childs, deceased,

and

RANDY HOOD,

Petitioners,

Vs.

STATE OF OKLAHOMA, ex rel.

OKLAHOMA STATE UNIVERSITY,

Respondent.

Summary of Argument

The Petitioners Childs and Hood

("Childs") ask the Court to grant certiorari

to the Oklahoma Supreme Court in an attempt

to overturn the lower court’s ruling allowing

the Oklahoma Governmental Tort Claims Act’s

worker’s compensation exemption to bar their

tort action against the State of Oklahoma

("State" or "Oklahoma").

Childs predominant argument is that the

Oklahoma Supreme Court misconstrued the

Oklahoma Legislature’s intent in passing the

11

exemption; however, the State court’s

interpretation of a matter of solely State

law binds the U.S. Supreme Court. The

federal court may not substitute its

interpretation of Oklahoma law.

Childs’ four attempts to convince the

Court that certiorari should be granted in

the alternative in order to condemn

constitutionally Oklahoma’s exercise of

sovereign power also fail to provide reason

for the U.S. Supreme Court to exercise its

discretion and take this case.

The worker’s compensation exemption does

not impermissibly discriminate against

interstate commerce. The exemption applies

equally to in-state and out-of-state

residents. If the exemption affects

interstate commerce, it does To) only

incidentally, while serving the legitimate

local concern the State has in avoiding

insolvency or burdensome taxes.

2 EEE

— ~

12

Oklahoma’s decision to limit who may sue

for damages arising from State torts does not

deny due process of the law. The ability to

sue a sovereign is not a property right; it

is, instead, a privilege. Absent a protected

interest, Childs cannot Support a claim of

denial of due process.

The State’s classification of tort

Claimants into two categories -- (1) those

injured by government acts and (2) those

injured by non-government acts -- does not

deny equal protection of the laws. As

already noted, the State has a legitimate

interest in protecting its treasury to avoid

insolvency or burdensome taxation. As a

Statute neutral both on its face and its

application, the Oklahoma Governmental Tort

Claims Act classification need only be

rationally related to its purpose.

Oklahoma is not required to afford full

faith and credit to Texas law when the

incident in question occurred wholly within

aa

the State’s territory. The negligence of the

State driver occurred in Oklahoma and the

injuries suffered by the petitioners were

incurred in Oklahoma. Having the most

Significant contacts with the event, Oklahoma

is entitled to impose its own law.

Childs does not cite any case or offer

any compelling argument which supports the

view that Oklahoma somehow has overstepped

its sovereign powers by retaining limits on

its tort liability. Her request for

certiorari should be denied.

Arqument

PROPOSITION I: THE U.S. SUPREME

COURT IS BOUND TO ACCEPT THE

OKLAHOMA SUPREME COURT’S

INTERPRETATION OF OKLAHOMA LAW.

Childs asks for certiorari so this Court

may substitute its interpretation of a

provision of the Oklahoma Governmental Tort

Claims Act' for the interpretation made by

the Oklahoma Supreme Court and applied to

' Okla. Stat. Tit. 51, §§ 151 et

seq. (Supp. 1988).

14

Childs’ case. This prayer for substitution

Will not support certiorari. The U.S.

Supreme Court is bound to accept an

interpretation of State law by that State’s

highest court. Hortonville Joint School

District No. 1 v. Hortonville Education

Association, 426 U.S. 482, 488, 96 S.Ct.

2308, 49 L.Ed.2d 1, 7 (1976).

The Oklahoma Supreme Court is Oklahoma’s

highest civil court. Okla. Const. art. Vai,

§ 4. That court has interpreted the Oklahoma

Governmental Tort Claims Act in a manner that

makes the worker’s compensation exemption

apply to Childs’ action. Despite Childs’

belief that the State court misunderstood the

State legislature’s intention in enacting the

exemption, the U.S. Supreme Court may not

alter the meaning of the statute as expressed

by Oklahoma’s highest court. Certiorari

Should not be granted on a_ perceived

misinterpretation of Oklahoma law by the

Oklahoma Supreme Court.

15

PROPOSITION II: OKLAHOMA ’&

GOVERNMENTAL TORT CLAIMS ACT

WORKER’S COMPENSATION EXEMPTION

APPLIES EQUALLY TO IN-STATE AND

OUT-OF-STATE RESIDENTS, AFFECTING

INTERSTATE COMMERCE ONLY

INCIDENTALLY.

The test of validity for State statutes

regulating interstate commerce is three-fold:

i. Does the challenged law regulate

evenhandedly, with only

incidental effects on interstate commerce, or

does the act discriminate against interstate

commerce either on its face or in practical

effect?

2. Does the statute serve a legitimate

local purpose?

Je If so, could alternative means

promote that local purpose without

discriminating against interstate commerce?

Hughes v. Oklahoma, 441 U.S. 322, 336, 99

S.Ct. 1727, 1736, 60 L.Ed.2da 250, 262 (1979).

Even when Oklahoma accepts, for purposes

of this proposition only, Childs’ contention

that the worker’s compensation exemption

16

affects interstate commerce, it is clear the

Statute passes Hughes inspection. The

exemption is evenhanded; it denies recovery

against the State to all injured persons

covered by ae worker’s compensation act,

regardless of whether they engage in

interstate or intrastate commerce. A State

that places severe limitations on its own

citizens does. not discriminate against

interstate commerce when it imposes identical

restrictions on non-residents. See, Sporhase

Vv. Nebraska, ex rel. Douglas, 458 U.S. 941,

955-956, 102 S.Ct. 3456, 3464, 73 L.Ed.2a

1254, 1265 (1982).

As the mighty struggle by Childs to

concoct an effect shows, the exemption’s

impact on interstate commerce is minimal --

certainly less than the effect of any State’s

highway speed limits or gasoline taxes. The

Statute complies with the first aspect of the

Hughes test.

——————

es

The various limitations on State tort

liability in Oklahoma’s Governmental Tort

Claims Act protect governmental functions by

assuring funds will be available for

essential services without intolerable tax

burdens or the risk of insolvency. Wilson v.

Gipson, 753 P.2d 1349, 1351 (Okla. 1988).

Sound financial standing is essential to the

health of any State’s economy and is,

therefore, a legitimate local concern. See,

Lewis v. BT Investment Managers, Inc., 447

U.S. 27, 38, 100 S.Ct. 2009, 2016, 64 L.Ed.2a

702, 713 (1980). A State serves a legitimate

local purpose when it seeks to conserve its

resources so long as it does so in a non-

discriminatory manner. See, Hughes, 441 U.S.

at 337, 99 &.Ct. at 1737, 60 L.Ba.24 at 262.

The exemption complies with the second aspect

of the Hughes test.

The third aspect of the Hughes test need

not be addressed because it assumes some

discrimination against interstate commerce

18

was found in applying the first two portions.

No such discrimination exists here.

The worker’s compensation exemption

complies with all aspects of Hughes, does not

violate the interstate commerce clause and

cannot support certiorari as an infringement

of that portion of the Constitution.

PROPOSITION IIT: THE ABILITY TO

SUE THE STATE OF OKLAHOMA IN TORT

IS A PRIVILEGE RATHER THAN A

PROPERTY RIGHT PROTECTED BY THE

FIFTH AMENDMENT.

Subject to federal constitutional

limitations, States have al] the sovereign

powers of independent nations. Sturges v.

Crowninshield, 17 U.S. (4 Wheat.) 122, 192-

193, 4 L.Ed. 529, 548 (1819). As a

Sovereign, a State may not be sued in its own

Or another State’s courts unless the State

has given consent to the Suit or has

otherwise waived its immunity. Great

Northern Life Ins. Co. y. Read, 322 U.S. 47,

51, 64 S.Ct. 873, 88 L.Ed. 1121, 1125 (1944).

19

By judicial decision, Oklahoma has

granted persons afflicted by State acts or

omissions the ability to maintain tort

actions against the State. Vanderpool v.

State, 672 P.2d 1153 (Okla. 1983). But, at

the court’s invitation, the Oklahoma

Legislature has limited that ability. Okla.

Stat. Tit. 51, § 152.1 (Supp. 1988). Among

the limitations is the provision prohibiting

Suit against the State by claimants who

already are protected by a worker’s

compensation act. Okla. Stat. Tit. 51, § 155

(14) (Supp. 1988).

A legislature has absolute power to

remove the ability to sue; this power is

inherent in government aS aé_=e sovereign.

Heller v. United States, 776 F.2d 92, 98 (3rd

Cir. 1985), cert. denied 476 U.S. 1105, 106

S.Ct. 1948, 90 L.Ed.2d 358 (1986). Such

removal does not violate due process because

the ability to sue is a privilege accorced by

government, not a property right protected by

20

the Fifth or Fourteenth Amendments. See

Lynch v. United States, 292 U.S. 2/1, S81, $4

S.Ct. 840, 78 L.Ed. 1434, 1442 (1934).

Because Oklahoma, as a Sovereign, has

the power to limit tort actions against

itself, the State has not infringed on

Childs’ due _ process rights, and Childs’

contention on this issue will not support

certiorari.

PROPOSITION IV: OKLAHOMA’S

CLASSIFICATION OF TORT VICTIMS INTO

PERSONS AFFECTED BY GOVERNMENT

ACTIONS AND THOSE AFFECTED BY NON-

GOVERNMENT ACTIONS REASONABLY

PROTECTS THE STATE TREASURY, A

LEGITIMATE STATE INTEREST.

Certainly, travel is a basic

constitutional right. Memorial Hospital y.

Maricopa County, 415 U.S. 250, 94 S.Ct. 1076,

39 L.Ed.2d 306 (1974). But that right does

not require, as Childs contends, the State

which a person travels into to treat the

traveler better than the State’s own

residents merely because the traveler enjoyed

more advantageous treatment where he came

LL

21

from. Califano v. Gautier Torres, 435 U.S.

1, 4, 98 S.Ct. 906, 55 L.Ed.2d 65, 69 (1978).

The Fourteenth Amendment simply requires a

State to provide equal protection of its laws

to all persons within its jurisdiction.

McCoy v. Providence Journal Co., 190 F.2d

760,764 (1st Cir. 1951), cert. denied 342

U.S. 894, 72 S.Ct. 200, 96 L.Ed. 669 (1951).

This concept of equal protection

requires uniform treatment of persons

standing in the same relationship to the

governmental action in question. Reynolds v.

Sine, 377 U.S. 533, 565, 64 &.CO. 1362, 12

L.Ed.2d 506, 529 (1964), rehearing denied 379

U.S. 870, 85 S.Ct. 12, 13 L.Ea.24 76. Equal

protection does not forbid classifications.

Nordlinger v. Hahn, __ U.S. , 112 §.Cct.

2326, 120 L.Ed.2d 1, 12 (1992).

As long as the classification is not

founded on a suspect categorization and does

not jeopardize the exercise of a fundamental

right, the classification will be upheld if

——— ee

22

it rationally furthers a legitimate State

interest. Nordlinger, U.S. at , 22d

—_—

L.Ed.2d at 12. The classification of persons

injured by government torts as Opposed to

those injured by non-government torts does

not implicate a suspect class. On its face,

the classification does not jeopardize any

fundamental right, and Childs’ argument that

the categorization interferes with the right

to travel is pure conjecture with no basis in

fact. State law implicates the right to

travel only when it actually deters such

travel, when impeding travel is its primary

objective or when it uses any Classification

which serves to penalize the right. Attorney

General of New York v. Soto-Lopez, 476 U.S.

898, 903 106 S.Ct. 2317, 2321, 90 L.Ed.2a

899, 905 (1986). Childs does not demonstrate

that Oklahoma’s law does any of these things;

therefore, the Court will measure the

worker’s compensation exemption by the

rational-basis test.

aa

As stated in Proposition II, concerning

interstate commerce, the classification

safeguards the public treasury. Wilson, 753

Piae @&-. 1351. Such State- or municipal-

government tort limitations have often been

recognized as legitimate and compatible with

the Equal Protection Clause. See, e.g.,

Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102

(1992); State by and through Colorado State

Claims Board of the Division of Risk

Management v. DeFoor, 824 P.2d 783 (Colo.

1992); M.D. Anderson Hospital and Tumor

Institute v. Felter, 837 S.W.2d 245 (Tex.

App. 1992); Turrentine v. Brookhaven, Miss.

School District, 794 F. Supp. 620 (S.D. Miss.

1992); Imlay v. City of Lake Crystal, 453

N.W.2d 326 (Minn. 1990).

Facially neutral classifications are

presumed constitutional. Nordlinger,

U.S. at , 120 L.Ed.2d at 12. Childs has

the burden of showing the unreasonableness of

the worker’s compensation exemption. Kite v.

24

Marshall, 661 F.2ad 1027, 1030 (5th Cir.

1981), rehearing denied 666 F.2qd 591 (1981),

cert. denied 457 U.S. 4120, 102 8.Ct. 2934,

73 L.Ed.2da 1333 (1982). Childs cannot meet

this burden; therefore, certiorari should be

denied.

PROPOSITION MV: OKLAHOMA’S LAW

APPLIES TO THE INCIDENT THAT GIVES

RISE TO THIS ACTION BECAUSE THAT

INCIDENT OCCURRED WHOLLY WITHIN

OKLAHOMA, GIVING THE STATE THE MOST

SIGNIFICANT CONTACT WITH THE EVENT.

In the most convoluted of her arguments,

Childs demands the Court restrain Oklahoma

from applying its own law to a tort that

occurred wholly within its jurisdiction and

instead order Oklahoma to subjugate itself to

Texas law. Childs’ contention that the Full

Faith and Credit Clause’ requires this result

ignores the necessity of giving full faith

and credit to Oklahoma’s law, as well.

The Full Faith and Credit Clause does

not require a State to subordinate its laws

2 U.S. Const., art. IV, § 1.

25

on peculiarly domestic matters involving

local sovereignty to the statutes of another

State. Application of Schatz, 80 Wash.2d

204, 497 P.2d 153 (1972).

Texas and OKlahoma follow the same

choice-of-laws rule: The law applied to a

specific case is that of the State with the

most significant contacts. Brickner v.

Gooden, 525 P.2d 632 (Okla. 1974), Gutierrez

v. Collins, 583 S.W.2d 312 (Tex. 1979).

Here, John Childs and Randy Hood, Texas

residents, were killed and injured,

respectively, when an Oklahoma State

University driver operated his State vehicle

negligently in Oklahoma. Petitioners’ Brief,

pp. 1-2. When the conduct effecting the tort

and the injury from that conduct occur in the

same State, that State has the dominant

interest, and its law is applied. See,

Restatement (2d) Conflict of Laws, § 146,

Comment d, § 147, Comment d.

26

Application of simple conflict of laws

principles shows the law governing any action

arising from the traffic accident is that of

Oklahoma, and Childs’ argument for dominance

of Texas law will not support a full-faith-

and-credit challenge. Certiorari, therefore,

Should be denied.

Conclusion

While many other States’ statutes may

retain a lesser degree of sovereign immunity

from tort liability, Childs has failed to

cite a single case either on point or

analogous to this one in which either a State

court of last resort or a federal appellate

court has ruled such immunity

unconstitutional. Childs has failed to show

that she has any likelihood of success in

demonstrating sovereign immunity as retained

by Oklahoma is unconstitutional. And Childs

is mistaken in the belief that the U-s.

Supreme Court may substitute its own

27

interpretation of State law for the opinion

of that State’s highest court.

In light of Childs’ failure to support

the petition for certiorari, the State of

Oklahoma asks the Court to deny certiorari.

Respectfully submitted,

SUSAN B. LOVING

ATTORNEY GENERAL OF OKLAHOMA

SUE WYCOFF

ASSISTANT ATTORNEY GENERAL

ANDREW TEVINGTON

ASSISTANT ATTORNEY GENERAL

4545 North Lincoln Boulevard

Suite 260

Oklahoma City, Oklahoma 73105

(405) 521-4274

oa gemeng re comes ae

ATTORNEYS FOR RESPONDENT

STATE OF OKLAHOMA, ex rel.

OKLAHOMA STATE UNIVERSITY

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