532 P.3d 36
Okla.2023Background
- Plaintiff Howard Berkson, an attorney, sued challenging a $10 "Lengthy Trial Fund" (LTF) fee charged under 28 O.S. § 86(D)(2) when an attorney files a civil case; he sought class certification, a declaratory judgment (statute is an unconstitutional special law), injunction, accounting/disgorgement, and fees.
- Defendants were the State (Administrative Director of the Courts, Askins) and Tulsa County District Court Clerk (Newberry); both moved to dismiss raising multiple grounds (standing, failure to state a claim under 12 O.S. § 2012(B)(6), GTCA/protest procedures, lack of capacity/jurisdiction).
- The trial court granted the two dismissals by general orders that did not state the specific grounds; Berkson filed a § 1031.1 term-time motion to reconsider more than ten days later and then appealed; he did not separately appeal the order denying the § 1031.1 motion.
- The Supreme Court considered (and denied) Berkson's attempt to preserve procedural objections via the term-time motion, found his standing arguments partially persuasive on the face of the petition, but concluded the petition failed to state a claim that § 86 is an unconstitutional special law.
- Result: the two district-court dismissal orders are affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of procedural objections via a term-time motion (§1031.1) in an accelerated Rule 1.36 appeal | Berkson treated his post-dismissal "motion to reconsider" as a functional equivalent of a new-trial motion to preserve procedural errors for this appeal | Defendants argued a §1031.1 term-time motion is separate and must be separately appealed; Rule 1.36 record is limited | Court: procedural assignments not preserved; a §1031.1 order must be appealed separately (Rule 1.36(k), Southeastern v. Doty) |
| Right to review proposed journal entries / approval-as-to-form and request for findings or leave to amend | Berkson: trial court erred by signing orders without allowing approval-as-to-form, denying request for findings/conclusions, and failing to state whether dismissal was with prejudice or allow amendment | Defendants: moved for dismissal with prejudice and challenged petition on merits; plaintiff did not timely raise these objections below | Court: not preserved — objections raised first in term-time motion; Rule 1.36 record lacks transcript; denial of amendment/failure-to-state basis not shown to be preserved; dismissal proper if any ground supports it |
| Standing to sue (attorney who paid filing fee on behalf of clients) | Berkson: he personally paid LTF fees (sometimes for clients) and thus has a personal stake to challenge the statute | State/Newberry: an attorney cannot subsidize clients; true injured parties are clients; Cities Service (attorney lacked standing) argued as support | Court: Berkson's facial allegations that he paid the fee give sufficient notice and may confer standing (citing Bowlin); defendants' facial §2012(B)(6) attack failed to negate standing on the petition's face |
| Constitutionality of 28 O.S. §86 as an unconstitutional special law (pro se exemption) | Berkson: §86 improperly exempts pro se litigants (and other categories), which creates an irrational special classification because attorneys sometimes file pro se | Defendants: statute targets reasonable legislative prediction that certain categories (e.g., pro se, small claims) are less likely to require lengthy jury trials; fee is a maintenance-type court fee tied to court resources | Court: de novo review finds the legislative classification is reasonably related to the statute's object; §86 is not an unconstitutional special law; petition fails to state a claim on this ground |
Key Cases Cited
- Bowlin v. Alley, 773 P.2d 365 (Okla. 1989) (party forced to pay an attorney-fee-like charge had standing to challenge statute)
- Farley v. City of Claremore, 465 P.3d 1213 (Okla. 2020) (use of judicial notice and rule 1.36 record limits in reviewing dismissals)
- Zeier v. Zimmer, 152 P.3d 861 (Okla. 2006) (distinguishing Art. 5 § 46 vs. § 59 special-law analyses)
- Fent v. State ex rel. Dep't of Human Servs., 236 P.3d 61 (Okla. 2010) (court fees must relate to services rendered or court maintenance)
- Cities Service Co. v. Gulf Oil Corp., 976 P.2d 545 (Okla. 1999) (standing limits for attorneys seeking independent appellate review)
- Southeastern, Inc. v. Doty, 481 P.2d 144 (Okla. 1971) (order denying §1031.1 relief is a separate appealable decision; appellate record limits)