# Opposition Brief — Childs v. Oklahoma

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1061%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 827

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1061%3A3. Public record. Not legal advice.