*1 State, goal, The holds it is the decisions. Toward that majority Commission- its responsibility preferences Legislature, ers’ and Commissioners are bound long the “order in they appear, duty imposed which to follow their constitutional 11, 6, preference prevent does not the State art. sec. and 64 § fulfilling duty majority Trustee from its to obtain The that duty impossible. makes property. maximum return” from the conceding Even that the interest fixed in situation, is, time, impossible 52(c) This creates an for it at this unconscionable and low, knowledge greater is common that a return arbitrarily the harm done to the consti- on by investing today greater those funds can be obtained tution is of importance. The high yield than possible majority accounts is from precipitously acts in its mortgage will, loans or demanding school bonds. maximum return which if followed, ignore lead the Commissioners to I feel safe in assuming that this has al- constitution, the clear demands of the art. ways been true. I’m confident that at the implemented by sec. time the adopted, Constitution was those given preference items were not the best “maximum return” investments available. I am authorized to state DOOLIN did, however, They security offer maximum HARGRAVE, JJ., join in this dissent- funds, for the they still do. OPALA, J., ing opinion, and concurs in preferences imple- art. sec. part. O.S.1971, 51, mented do not benefit only farmers and ranchers. The trust bene- thereby,
fits for there probably is no invest-
ment that is more secure than a first mort-
gage.
The trust property
protected
even from
securing
State itself. Liens
the loans of
priority
Commissioners have
over tax
LEE, Petitioner,
M.
Gail
O.S.1971, 24346; See, State,
liens. 68
ex
rel.,
Passmore,
Commr’s of Land Office v.
120;
return in favor of more secure AMICK, Judge The Hon. John M. District bonds, such as mortgages and school etc. Wier, and the Hon. Charlie Y. Associate The other relevant of article Judge District District of the Court 1, 2, sections clearly weighted Oklahoma, County, Respon Oklahoma favor of safe and conservative financial dents. funds, management of these consistent with 55966, 56053. Nos. preferences dictated art. sec. 6. security Supreme investment is of the Court of Oklahoma. first and highest importance. This balanc- 2, 1982. March ing today. of interests is undone
While the majority obviously correct duty good trustees have a to obtain a
return property, from the trust it is also
true duty pru- that trustees have a act
dently and to make financially responsible *2 Carson, Mueller, Pepper Ray-
Karen A. Hirsch, petition- City, Oklahoma for burn & er Gail M. Lee. Whitten, Jr., City,
Hal for S. Oklahoma petitioner Olin Mohr. Charles OPALA, Justice: The issue here is whether contested mat- may routinely be rimonial suits and indis- criminately special judge referred to a resolution of all issues. gave cases which rise to the divorce initially assigned us
proceeding before were
assignment
to a special judge. When the
challenge
the statuto-
came under
based on
limitation,
A,1
ry
O.S.Supp.1978
judge’s adjudicative
special
authori-
ty, they
were transferred out.
same
re-assigned
judge was then
to the
cases as “referee”. He was ordered to hear
report
all
issues to
evidence and
factual
judges.
one of the district
ob-
jecting to
reference
seek a writ
now
judge’s
prohibiting
challenged special
deployment qua referee in these contested
respondents urge
domestic cases. The
challenged reference is authorized
O.S.Supp.1978
123 B.2
conservatorship,
pro
O.S.Supp.1978
pro
1. The
of 20
A
or determination of death
terms
ceeding, except
nonlawyer special judges
pertinent part: “Special judges may
vide in
”** *
* *
*
may
such matter.
following
(7) Any
not hear
hear the
contested matter at
actions:
un
any stage,
whether inter
O.S.Supp.1978
pro-
2. The
123 B
terms of
final,
divorce,
probate,
mediate or
in a
domestic
“Special judges
vide:
shall be authorized to
relations, custody
support, guardianship,
serve
before the
as referee
matter
dis.-
performance
efficient
of their
special judges may
We hold that although
constitution-
ally-mandated
disputes
used
contested matrimonial
duties.4
as referees to aid the court with resolution
cogent
precedent
Oklahoma
has
accounting issues,
valuation or
inhibiting
references of
deployment
their routine and indiscriminate
accounting or valuation issues in a matri-
of all
for unrestricted
issues in monial case. Allen v. Allen5 —the authori-
*3
disputes
contravenes
the clear com-
ty
ap-
invoked here to secure this court’s
of 20 O.S.Supp.1978
mand
123 A and the
§
per
se
proval
for a blanket
of
condemnation
equity practice
accepted
under the statutes.
in
compulsory references
divorce cases—-is
prohibited
It should be
an
unauthorized
regarded
exposition
not to be
a correct
of
judicial
use of
force.
present-day jurisprudence.
this state’s
Allen
appeal
a
was a divorce
decided on
I.
pro-
confession of
The vice of our
error.
THE CHALLENGED ORDER OF REF-
uncritically
in
case lies in
nouncement
that
ERENCE IS IMPERMISSIBLY
following
first-generation
legal
a
American
OVERBROAD
of the
encyclopedia’s
applicable
statement
Compulsory
inap
encyclopedic
reference
national doctrine.
text
propriate
judge
as an aid to
in
singled
the
resolv
out divorce-case references as uni-
ing
the
of an equitable
versally
inappropriate
context
condemned.
—within
dispute
overlooked,
course,
matrimonial
English
issues of This
of
the
—
accounting or valuation.3 In the
chancery practice
absence of
and its continued survival
contrary
a
form
many
largely
command in our fundamental or
in
states
in a
law,
statutory
by
courts have the
unrestricted
statute. Oklahoma is most
to
necessary
surely
avail themselves of
among
prob-
devices
to the
those states.6 Another
tion,
court
to
trict
and to serve as referee in cases
receive evidence ... and to have find-
on
”;
juvenile
(b)
approval
ings
the
docket
of fact made thereon...
under the
with the
of the
act,
78(f),
judge regularly
juvenile
16
assigned
§
marketable record title
O.S.1971
the
to
docket
any
a title transaction is defined as
transaction
judge
and the chief
district
of the
court.”
land,
affecting
including
title
interest in
to
provide
alia,
chancery’s
3. The terms of 12
613
in
or
§
O.S.1971
inter
deed and
a referee’s master in
pertinent part:
(c)
proceedings
“When
the
do not con-
in
under the Oklaho-
sent,
Act,
may
motion,
O.S.Supp.
the court
of its
ma Consumer Protection
15
...
own
756.1(C)4,
may appoint
following
1980
the court
“a
§
direct
cases:
reference in
of
either
appear
master
defendant
dispose
it
... whenever
...
that the
Where the
issue of
trial of an
fact shall
remove,
to
or
require
accounts,
...
is about
conceal
mutual
examination of
or
”,
property
of
. .
.
only,
when the account
side
is on one
and it
indicating legislative
appear
shall be made
necessary
Other statutes
of
to
to
court that it is
sanction
practice
Compulsory
party
on
are:
Refer-
the other side
(1)
rights,
ences :
In
prove
a suit to determine water
should be examined
witness to
as a
may ap-
account;
under 82 O.S.1971
“the court
may
§
in which case the referees
be
point a referee or
to
referees ...
take testimo-
report
to
directed
issue,
hear and
the whole
ny
report upon
rights
parties,
upon any specific question
or
of fact
equity
[emphasis supplied].
in other
cases.”
therein;
taking
involved
or where the
anof
imposition
implicitly
This section
makes
of ref-
necessary
account shall be
for the information
judicial
erence
discretion. This sec-
judgment,
of
court
before
cases which
repealed.
tion now
Okl.Sess.Law
stands
may
[empha-
court
determined
...”
(2)
(juvenile
c. 256
1126
§
§
10 O.S.1971
sis ours].
process); (3)
(accounting
§
12
613
O.S.1971
857, 858, 859,
issues); (4) 12
861
§§
O.S.1971
Nash,
4. Rand v.
174
(in
(5)
execution);
aid of
O.S.1971 1460
[1935].
(mandamus); (6)
(liquida-
1.185
18 O.S.1971
(7)
corporation);
tion
63
lateral Consent:
default and
§§
of
67 O.S.1971
46 and
5. 85 Okl.
Our conclusion is compulsory that the ref- erence order under challenge here imper- is HODGES, SIMMS, JJ., LAVENDER and missibly (a) overbroad because it allows un- concur in result. restricted reference of the whole case and SIMMS, Justice, concurring in result: (b) it is predicated not upon presence While I concur in the major- result of the case of accounting issues of ity opinion prohibition a writ of —that valuation. stop should issue to this unauthorized abdi- judicial cation of duty disagree with its —I
II.
reasoning.
THE DISTRICT COURT PRACTICE OF
majority
bases its decision on the
MAKING ROUTINE AND INDIS-
underlying premise
equitable
mat-
CRIMINATE REFERENCES TO SPE-
ters, compulsory reference is a discretionary
CIAL JUDGES OF ALL ISSUES IN A power of the court.
It
power
sees this
DIVORCE CASE IS IMPERMISSI-
“inherited” from ancient chancellors and
BLE
existing
before,
still
except
specif-
where
Routine and indiscriminate use
special
of
ically
by
restricted
statute.
per-
From this
judges for unrestricted reference of con-
spective, the majority finds
compulsory
tested matrimonial disputes contravenes
references
unacceptable
before us
because
both the clear command of
123 A9
they
“accepted
contravene
equity practice”
accepted
equity practice under our stat-
and 20 O.S.Supp.1978,
I disagree.
123A.
7(a),
[1967],
Art. 7 §
Okl.Const.
10.Our
here is not to be viewed as an
implied authority
making
unlimited refer-
ences,
cases,
[1938],
persons
8. 183
divorce
P.2d
other than
suits,
judges.
A.L.R. 1269.
In all matrimonial
refer-
accounting
ences must be limited to
or valua-
complexity.
Supra
tion issues of
note 1.
compulsory
authority
ap-
reference is
“The
of a trial court to
evidence,
point a referee
take
make
Title
purely statutory.
law,
findings of fact and conclusions of
is
governs compulsory
governs
reference.
It
statutes,
derived from
provi-
our
and such
all
whether
equity,
actions
at
law or in
5018, 5019,
sions are included in sections
by spe-
which
not otherwise controlled
R.L.1910
§§
[now
613]
cific statute.
and the
of the statute pertain-
Compulsory reference statutes are exclu-
ing to the method and manner of the
sive.
powers
There are no
of reference
appointment of a referee must
com-
independent of statutes. Whether the ma-
with,
plied
appointment
otherwise such
is
jority’s
origin
view of the historical
of this
legal
referee has no authori-
not,
ty
“inherited”
is correct or
to act.”
power is now clearly
limited
the confines
referring
error of the trial court in
of statute.
separate power
There is no
parties’
matter without the
consent was
“equity practice.”
reference in
and,
noting
confessed
counsel
that con-
fession, the court stated:
We have consistently recognized the rule
grounds
“The
assign-
covered
actions,
in all
equitable
legal,
ments of error which are confessed in the
power of the court to order a reference over
confession
error seem to be the error
parties’ objections
governed
exclu-
referring
of the trial court in
the matter
sively by statute.1
to a referee without the written consent
Allen,
Allen v.
al. the court has no
order a compulsory reference to hear and
determine all or of the issues any
questions fact except where authorized ” to by so statute’ At 505.
The majority misapprehends clearly not, of Allen. That case is in any
manner, a of compulsory condemnation ref-
erence in divorce actions —in a proper case. divorce,
It holds simply that as in all actions,
other to refer is statuto-
ry and (12 of the statute 613) are the exclusive criteria permissible reference.
The divorce actions before us were not
properly refer- to anyone
ence special judge oth- —a person. er accounting contingencies
authorizing compulsory set
forth 613. These actions
do not pretend even the scope to fall within
of the statute. It is for that reason the
writ should issue.
I am authorized to state that Justice join
HODGES Justice LAVENDER
with me in opinion. this
Toylar CRAWFORD, minor, by J. through her mother and next friend Carolyn Crawford, Carolyn J. J. Crawford, individually, Appellees, GIPSON, Appellant,
Lee Otis
State Farm Mutual Automobile Insurance
Company, Intervenor.
No. 52267.
Supreme Court of Oklahoma.
March
As Corrected March