Lead Opinion
1 This proceeding was commenced in the District Court as an administrative appeal from student disciplinary proceedings at the University of Oklahoma. We conclude that the District Court lacked administrative appellate jurisdiction and direct the District Court to dismiss the administrative appeal. We do not resolve the claims by the student that the University failed to use the constitutionally proper procedures for imposing discipline on him. These claims were not adjudicated by the District Court, and we conclude that students have available District Court remedies for constitutionally improper student discipline when the Oklahoma Administrative Procedures Act does not provide them with an administrative appeal. Because the controversy is improperly before us on a discretionary petition for certiorari, we recast that petition to an application to assume original jurisdiction and a discretionary petition for a writ of prohibition, and we direct the Clerk of this Court to correct the style of the proceeding on the docket of this Court.
2 Frank George, a student at the University of Oklahoma (University), was charged by the University with violating five provisions of the University's student code. The Campus Disciplinary Board (CDB) found that he was guilty of violating three provisions of the Code: 16.4 (Failing to Comply with Directions of Institutional Officials), 16.65 (Public Drunkenness), and 16.25 (Violating Applicable Local, State, or Federal Laws). He appealed to the University's Campus Disciplinary Council (CDC) and alleged that the evidence was insufficient for the administrative decisions that the student code had been violated. The CDC "invited Mr. George to provide a written submission regarding the insufficiency of the evidence, and invited the University to respond." Petition for Review, Plaintiff's Exhibit 2, pp. 1, 10. The CDC reviewed the statements of the witnesses and the student, and in its written decision concluded that the student had failed to meet his burden to show that the evidence against him was insufficient. The decision of the CDB was sustained by the CDC.
1 3 George filed a petition for review in the District Court of Cleveland County seeking administrative appellate review of a final ageney decision. The University filed a motion to dismiss with two attached exhibits and raised insufficiency of service of process and lack of jurisdiction pursuant 75 0.8.2011 § 250.4(B)(12), a provision of the Oklahoma Administrative Procedures Act.
T5 The University filed a reply with three additional attached exhibits and argued that the appellate jurisdiction of the District Court was not based upon whether George had alleged due process violations, but whether the Administrative Procedures Act provided for appellate jurisdiction. The District Court denied the motion to dismiss. The University sought review in this Court by a petition for certiorari and the request for review was granted.
I. Petition for Certiorari to Review of Certified Interlocutory Order Recast to Petition to Assume Original Jurisdiction and Issue Prohibition
T6 The order in the District Court before us on review is titled "Final Judgment." However, it is an interlocutory order anterior to judgment and the order is neither final nor a judgment.
17 The claim made by the University was that the District Court was without subject matter appellate jurisdiction. This Court has examined jurisdictional claims within certiorari review of a certified interlocutory order without commenting on whether the jurisdictional claims involved the merits of the controversies.
18 Our opinions have indicated that it is possible for a jurisdictional issue to be intertwined with an issue on the merits of a controversy,
T9 The method of review herein is by certiorari to review a certified interlocutory order. In federal courts, when a motion to dismiss for lack of jurisdiction is intertwined with the merits of the controversy the court is required to convert the motion to dismiss into either (1) a motion to dismiss for failure to state a claim upon which relief may be granted [Federal Rule 12(b)(6) motion], or (2) a motion for summary judgment [Federal Rule 56 motion].
110 When the University's motion raising a jurisdictional issue is construed to be intertwined on the merits of George's claims, then the University's motion to dismiss (with reply) should be deemed to be a motion for summary judgment.
{11 In summary, if the University's claim is jurisdictional then the order adjudicating that claim is not on the merits, and the order is thus not a certified interlocutory order that qualifies for a §$ 952(b)(@8) review. On
112 The University makes a claim challenging the District Court's jurisdiction. The remedies provided by this Court's constitutional supervisory writs may be used to challenge the exercise of jurisdiction by a District Court. The constitutional supervisory writ of prohibition is often used for a jurisdictional challenge.
{13 We treat the University's motion for summary judgment as raising both jurisdictional and non-jurisdictional claims. We grant prohibition to prevent enforcement of the District Court's order that denied the University's motion for summary judgment on the jurisdictional issue that the trial court lacked Administrative Procedures Act appellate jurisdiction. We make no adjudication on other claims intertwined with this Jurisdictional issue, including any claim on the merits or defense raised by the parties. Our opinion herein addresses the parties' issues necessary to adjudicate whether the District Court possesses appellate jurisdiction. Pursuant to issuance of the writ, we further direct the District Court to dismiss George's Administrative Procedures Act appeal in that court, but we make no adjudication on the jurisdiction of the District Court relating to George or the University which may arise from any source other than Oklahoma's Administrative Procedures Act.
II. Administrative Appellate Jurisdiction of the District Court and the Remedy of an Independent Civil Action
I 14 The Administrative Procedures Act is composed of two Articles. Article I of the Act relates to state agency filing and publication requirements for rules, and Article II relates to ageney notice and hearing requirements for individual proceedings.
15 University argued that George's discipline was not subject to Article II, his hearing was not a § 310 hearing,
B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: ...
12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, and the following grounds of misconduct, if properly alleged in disciplinary proceedings against a student, shall be cause to be barred from the campus and be removed from any college or university-owned housing, upon conviction in a court of law:
a. participation in a riot as defined by the penal code,
possession or sale of any drugs or narcotics prohibited by the penal code, Section 1 et seq. of Title 21 of the Oklahoma Statutes, or
c. willful destruction of or willful damage to state property;
75 0.8.2011 § 250.4(B)(12).
We first examine the plain language of the statute. If wording in a statute is plain, clear and unambiguous then the plain meaning of the words used must be judicially accepted as expressing the intent of the Legislature, and there exists no reason or justification to use interpretive devices or rules of construction to determine meaning. Tulsa Indus. Auth. v. City of Tulsa,
T 16 Paragraph 12 begins with stating that The Board of Regents or employees of any university, college, or other institution of higher learning need not comply with the provisions of Article II of the Administrative Procedures Act. This language is then limited by the exception for an expulsion of any student for disciplinary reasons. The plain language of § 250.4(B)(12) states that Article II applies when the penalty of expulsion exists for charges brought against a student in a university disciplinary proceeding.
117 University argued that George was subject to censure (or reprimand), parental notification, a $150.00 administrative fee, community service, a period of probation, and a "second strike" on the University's "aleohol policy," and that these were "all off the record at graduation." University argued that the charges against George did not have an expulsion as a penalty.
T 18 George's brief challenged the University's statement that he was not subject to expulsion. He stated that a "third strike" on the University's Alcohol Policy results in a suspension which is an expulsion. He also
{19 Historically, the terms "suspended" and "expelled" have referred to a person's status with respect to an organization where "suspended" and "expelled" have had different meanings. One difference between a suspension and an expulsion is that the former involves a temporary privation of rights and privileges where the one suspended maintains the status of a student (or continues as a member of an organization from which the person is suspended), and the latter involves a permanent privation of rights and privileges where the one expelled no longer has the status of a student (or no longer has membership in an organization from which the person is expelled).
T20 The University's Student Code makes a distinction between (1) a suspension, which is student's exclusion from classes and activities "for a definite period of time not to exceed two years or until the conditions which may be set forth [in the order of suspension] are met," and (2) an expulsion, which is termination of student status for an indefinite time, and the order of expulsion may, or may not, include conditions for readmission. University's Mtn. To Dismiss, Ex. 2, O.R. at p. 29.
€21 George received discipline. He received a censure for failure to comply with the directions of an institution official. For public intoxication his deferred First Strike was revoked.
1. Parent/Guardian notification via return receipt certified mail with a follow-up telephone call.
2. A $150.00 administrative fee.
3. Satisfactorily complete an approved alcohol counseling program.
4. Satisfactorily complete 20 hours of approved community service..
5. Disciplinary Probation. The Notation of Disciplinary probation shall be removed upon graduation from the University of Oklahoma subject to completion of disciplinary sanction.
University's Mtn. To Dismiss, Ex. 2, University of Oklahoma Student Code, 2010-2011, Title 17 Sanctions, 17.4, Individual Sanctions, 2nd Offense. O.R. at p. 80.
George was also found guilty under the Student Code because he had violated a local, state, or federal law, leading to his plea of "no contest" to a charge of public intoxication that was made in the City of Norman municipal court. For this violation the Campus Disciplinary Board stated that the minimum sanctions for a Second Strike against the Alcohol Policy that George received were an adequate discipline.
122 George's probation did not expressly include a suspension from academic activities.
T 23 The record supplied to us contains no information on circumstances that bar a student from enrollment or how such ciream-stances apply in this case. This Court does not base its decision upon either unsupported statements in a brief filed in this Court or unsupported statements made in argument of counsel to the trial court.
124 George also maintained that the express language of § 250.4 required the proceeding to be subject to Article II of the Administrative Procedures Act because § 250.4 requires "due process." We again look to the language of the statute.
B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: ...
12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, ....
75 0.8.2011 § 250.4(B)(12), in part, emphasis added.
George argued that if his penalty was considered to be less than expulsion then the disciplinary proceeding was required to comply with due process, and that such compliance required both the application of Article II to the University proceedings and the availability of a judicial remedy by appeal to a District Court.
125 University agreed that disciplinary proceedings less than expulsion must comply with due process. However, University argued that due process did not require application of Article II to the disciplinary hearings. University also argued that alleged due process violations in non-expulsion student disciplinary proceedings were subject to review by a civil action in a District Court but not by an Administrative Procedures Act appeal: "To the extent George believes he can articulate a cognizable claim for procedural and/or substantive due process violations, Oklahoma's civil procedure code, 12 Okla. Stat. §§ 1, et seq., would dictate that he 'fillel a petition with the court' in order to commence a civil action." Petnr's Reply Brief at p. 8.
126 We first note that the statute does not state that upon any alleged infraction by a student of rules of an institution, with a lesser penalty than expulsion, such student shall be entitled to the procedures provided by Article II. The statute states that the student shall be given "due process, including notice and hearing, as may be oth
127 Section § 250.4 identifies two classes of students: first, students subject to discipline of expulsion where Article II applies; and second, students subject to discipline less than expulsion where Article II does not apply. The University argued that although Article II did not apply to students subject to discipline less than expulsion, § 250.4(B)(12) recognized that they were entitled to whatever due process was required in such cases. George argued that the language recognizing an entitlement to due process was the Legislature requiring Article II to be applied to all student disciplinary proceedings, both expulsion and non-expulsion proceedings. George's argument destroys the statutory distinction made between student discipline with expulsion and student discipline with non-expulsion. The plain words of a statute are deemed to express legislative authorial intent in the absence of any ambiguity in language. Tulsa Industrial Authority v. City of Tulsa,
128 George argued that judicial review in the form of an appeal is constitutionally required to preserve a person's rights protected by the Due Process Clauses of the State and Federal Constitutions.
129 Generally, the Due Process Clause does not by itself mandate any particular form of procedure. Powers v. District Court of Tulsa County,
More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 'requirement would entail. See eg., Goldberg v. Kelly, supra, 397 U.S. [254] at 263-271, 90 S.Ct. [1011] at 1018-1022 [25 LEd.2d 287 (1970) ].
Mathews v. Eldridge,
This balancing test requires consideration of the interests of George affected by the actions of the University, the risk of erroneous deprivation through the procedures used, the probable value of additional or substitute procedures, and the University's interests. George argued that application of Article II is the essential element or condition to satisfy due process. This argument that Article II is the constitutional sine gue non of due process is simply incorrect. George does not present any argument based upon a Mathews balancing analysis that District Court appellate review is constitutionally required.
130 George claimed that the University hearing procedure was constitutionally flawed and Article II procedures must therefore apply to correct the flaws in the procedure of the disciplinary hearing at the University. When due process is invoked, it usually is invoked to require a particular procedure and not a collection of procedures unless each and every procedure in the collection is individually required to satisfy due process. One reason for this is that the necessity for one procedure to satisfy due process does not logically show that all procedures are necessary to satisfy due process.
T31 George argued that Article II procedures must apply to correct the flaws in the
132 The language of 75 O0.8.2011 § 250.4(B) lists several agencies that are not required to comply with Article II.
183 As a general rule and subject to some exceptions, decisions of administrative bodies, especially on questions of law, are subject to some form of judicial review.
134 A constitutional question would arise if the University made the argument that no judicial review of any nature was available to review the denial of due process rights possessed by a student in a student disciplinary hearing. But the University is not making the argument that judicial review of its actions is unavailable. The University's argument is that if a student is subject to discipline less than expulsion and that student's due process rights are violated, then that student may bring a civil action in a District Court alleging that the University violated the student's rights. George did not specify any property or liberty interest that he possesses that would be judicially unprotected if he is required to champion that interest in a District Court independent legal action instead of a District Court administrative appeal. He did not explain with legal authority how a statutory classification of those possessing due process rights in proceedings less than expulsion were constitutionally disadvantaged by bringing their due process claims in a District Court independent action as opposed to bringing them in a District Court administrative appeal.
136 Our construction of § 250.4 does not deprive a litigant of a judicial forum to hear a constitutional claim challenging an administrative action. We hold that 75 0.8. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student, like George, is subject to discipline less than expulsion for an institutional rule infraction; and that George's remedy of an independent civil action is adequate to redress any alleged violation by the University of his claimed rights to due process in the University's administrative proceedings.
III. Due Process and Multiple Strikes Against the Alcohol Policy
T37 George maintained that the automatic suspension as a penalty on a "Third Strike" was equivalent to an expulsion and Article II applied on a Third Strike. He also argued that the two proceedings culminating in the First and Second Strikes would be used as a partial basis for a Third Strike, and thus the first two administrative proceedings must be subject to Article II of the Administrative Procedure Act. The express language of § 250.4 does not make non-expulsion disciplinary proceedings subject to Article II when they are considered in a subsequent expulsion proceeding. Thus, George's argument was that constitutional necessity made the First and Second Strike proceedings sub-jeet to Article IL.
88 In 1975 the U.S. Supreme Court determined that in the State of Ohio, on the basis of state law, primary and secondary students "had legitimate claims of entitlement to a public education ... [and because statutes] direct local authorities to provide a free education to all residents between five and 21 years of age," the students thus possessed a property interest in public education; and "[hlaving chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent, fundamentally fair procedures to determine whether the misconduct has occurred." Goss v. Lopez,
{39 Then, in Harris v. Blake,
In Goss, the State of Ohio had entitled its residents to a primary and secondary education. See id.419 U.S. at 573 ,95 S.Ct. at 735 . Colorado has created the basis for a similar claim of entitlement to an education in its state college system, which includes the University of Northern Colorado. The legislature has directed that these colleges "shall be open ... to all persons resident in this state" upon payment of a reasonable tuition fee. Colo.Rev.Stat. § 28-50-109 (1973). The actual payment of tuition secures an individual's claim of entitlement. See Gaspar,513 F.2d at 850 . Accordingly, Harris had a property interest in his CSAP enrollment which entitled him to procedural due process.
In Goss, Gaspar, and Harris, the courts first determined whether a property right was present based upon either state statutes or the payment of fees or tuition. This burden and a party's failure to satisfy it was noted in Board of Curators of the University of Missouri v. Horowitz,
140 George relied in his brief on Goss, Harris, and Gaspar for the proposition that he possessed a property right subject to Due Process protection when he was disciplined. George's District Court filings and brief in this Court do not refer to any state statute, such as those cited in both Goss and Harris, for showing that he has a property right created by Oklahoma law. There is no allegation in George's District Court verified petition that he paid fees. George does state in his brief in this Court that he paid fees. However, a litigant may not supplement an appellate record to show a fact that is a necessary element to that party's claim or cause of action in the trial court by merely asserting that fact in his or her brief in this Court.
142 George's characterization that a no-expulsion Second Strike proceeding is constitutionally deemed, or turned into, an expulsion proceeding due to the possibility of a subsequent Third Strike expulsion proceeding is simply an incorrect concept. For example, "Enhancement statutes, ... that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction." Nichols v. United States,
IV. Additional Due Process Arguments
148 George argued that when the University employed one attorney to counsel the Campus Disciplinary Board and another lawyer to prosecute George for institution infractions, this conduct was an egregious violation of due process that "is inherently unfair and unconstitutional and smacks of impropriety." However, the fact that an agency participates in the investigation, prosecution and adjudication of matters before it has been held not to violate the due process clause. State ex rel. Oklahoma Dept. of Mines v. Jackson,
144 Absent exigent and unusual cireumstances not present here, in the context of original supervisory writ this Court does not make first-instance assessments of applying legal principles to facts, but allows the parties to develop issues of fact and law in the trial court.
T45 We hold that (1) 75 O.S8. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student is subject to discipline less than expulsion for an institutional rule infraction; (2) the remedy of an independent District Court civil action is an adequate remedy for an alleged violation by the University of a student's rights to due process in a University disciplinary proceeding; (8) the possibility of a subsequent institutional offense that is subject to Article II of the Administrative Procedures Act having an enhanced punishment because of former offenses does not require the former offenses to be also subject to Article II of the Administrative Procedures Act; and (4) absent unusual cireumstances not present here, we decline in a supervisory writ proceeding to adjudicate constitutional arguments that were not adjudicated in the District Court.
[ 46 We assume original jurisdiction, issue prohibition to prevent enforcement of the order denying summary judgment on the sole ground that the District Court lacks appellate administrative jurisdiction, and direct the District Court to dismiss George's administrative appeal. We decline to address the merits of George's due process claims relating to the procedures of the University.
Notes
. We direct the Clerk of this Court to correct the style of this proceeding on the docket of this Court from the style used in the certiorari proceeding: Frank George, Plaintiff/Respondent v. State of Oklahoma, ex rel., Board of Regents of the University of Oklahoma, ex rel., Campus Disciplinary Council of the University of Oklahoma, Defendant/Petitioner, to the correct style for an original jurisdiction supervisory writ proceeding: State of Oklahoma, ex rel., Board of Regents of the University of Oklahoma, ex rel., Campus Disciplinary Council of the University of Oklahoma, Petitioner v. The Honorable Tom A. Lucas, District Judge, Respondent, and Frank George, Real Party In Interest.
. First, the order does not finally adjudicate the merits the action presented by the parties and is thus not a judgment. 12 0.$.2011 § 681; Clay v. Independent School Dist. No. 1 of Tulsa Cnty.,
Second, the order fails to satisfy 12 0.8. § 953 finality in that the order does not determine an action and prevent a judgment, and it is not an order affecting a substantial right made in a special proceeding or upon summary application after judgment.
Title 12 0.S.2011 § 953 provides:
An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.
. 12 0.5.2011 § 952(b)(3):
(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof; ...
3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal ...
Oklahoma Supreme Court Rule 1.50 provides:
"Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge's successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order. 12 0.$.2011 § 952, Subdiv. (b)(3).
No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment. See Rule 1.40 for the application of other rules to review of a certified interlocutory order."
. In the context of this Court's review of certified interlocutory orders, this Court has addressed questions relating to jurisdiction. See, eg., Rogers v. Quiktrip Corp.,
. Ricks Exploration Co. v. Oklahoma Water Resources Bd.,
This view is also consistent with our opinions explaining that an adjudication on a jurisdictional claim is not usually considered as an adjudication on the merits of the controversy when the plea of res judicata (claim preclusion) is made. Dearing v. State ex rel. Comer's of the Land Office,
. Powers v. District Court of Tulsa County,
. Colton v. Huntleigh USA Corp.,
. Holt v. U.S.,
. Powers v. District Court of Tulsa County,
. In State ex rel. Wright v. Corporation Commission,
Conversion of a motion to dismiss with a jurisdictional claim intertwined with a claim on the merits of the controversy would appear to require conversion of such a motion to one for summary judgment for two related reasons. First, an adjudication in the form of summary judgment is on the merits of a controversy. See City of Broken Arrow v. Bass Pro Outdoor World, LLC.,
. S.W. v. Duncan,
Although a constitutional writ of certiorari may be used to bring up a record of an inferior court to a superior court for review of jurisdictional error, Parmenter v. Ray,
. 750.8.2011§ 250.1:
A. The Administrative Procedures Act shall be composed of two Articles. Sections 250, 250.1, 250.3, 250.4, 250.5 and 250.8 of this title are applicable to both Articles I and II. Article I relating to agency filing and publication requirements for rules shall consist of Sections 250.2, 250.6, 250.7 and 250.9 through 308.2 of this title and Section 5 of this act. Article II relating to agency notice and hearing requirements for individual proceedings shall consist of Sections 3082 through 323 of this title.
B. Except as otherwise specifically provided in Section 250.4 of this title, all agencies shall comply with the provisions of Article I and Article II of the Administrative Procedures Act.
. 75 318:
A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title.
2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions.
3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review.
B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court.
2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, naming as respondents only the agency, such other party or parties in the administrative proceeding as may be named by the petitioner or as otherwise may be allowed by law, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title.
C. Copies of the petition shall be delivered in person or mailed, postage prepaid, to the agency and all other parties of record, and proof of such delivery or mailing shall be filed in the court within ten (10) days after the filing of the petition. Any party not named as a respondent in the petition is entitled to respond within ten (10) days of receipt of service. The court, in its discretion, may permit other interested persons to intervene.
D. In any proceedings for review brought by a party aggrieved by a final agency order:
1. The agency whose final agency order was made subject to review may be entitled to recover against such aggrieved party any court costs, witness fees and reasonable attorney fees if the court determines that the proceeding brought by the party is frivolous or was brought to delay the effect of said final agency order.
2. The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous.
. 75 0.98.2011 § 310:
In individual proceedings:
1. Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law in respect to: self-incrimination; confidential communications between husband and wife during the subsistence of the marriage relation; communication between attorney and client, made in that relation; confessions made to a clergyman or priest in his or her professional capacity in the course of discipline enjoined by the church to which he or she belongs; communications made by a patient to a licensed practitioner of one of the healing arts with reference to any physical or supposed physical disease or of knowledge gained by a practitioner through a physical examination of a patient made in a professional capacity; records and files of any official or agency of any state or of the United States which, by any statute of a state or of the United States are made confidential and privileged. No greater exclusionary effect shall be given any such rule or privilege than would obtain in an action in court. Agencies may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
2. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original;
3. A party may conduct cross-examinations required for a full and true disclosure of the facts;
4. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.5. Any party shall at all times have the right to counsel, provided that such counsel must be duly licensed to practice law by the Supreme Court of Oklahoma, and provided further that counsel shall have the right to appear and act for and on behalf of the party represented.
6. A party may request the exclusion of witnesses to the extent and for the purposes stated in Section 2615 of Title 12 of the Oklahoma Statutes. Exclusion of a witness shall not be a violation of the Oklahoma Open Meeting Act.
. 75 0.8.2011§ 312:
A. A final agency order adverse to a party shall:
1. Be in writing; and
2. Include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the final agency order shall include a ruling upon each proposed finding.
B. Parties shall be notified either personally or by certified mail, return receipt requested, of any final agency order. Upon request, a copy of the order shall be delivered or mailed forthwith to each party and to his attorney of record.
. See, for example, Annandale Golf Club v. Smith,
This distinction appears to have been used by our Court of Civil Appeals in Mason v. State ex rel. Board of Regents of the Univ. of Okla.,
. University of Oklahoma Student Code, 2010-2011, Title 17 Sanctions, 1.2.1 & 1.2.2 state:
The following sanctions may be imposed on students by the appropriate Campus Disciplinary Council or the proper administrative officials:
.1 Suspension: Exclusion from classes and other privileges or activities as set forth in the notice for a definite period of time not to exceed two years or until the conditions which may be set forth are met.
.2 Expulsion: Termination of student status for an indefinite period. The conditions of readmission, if any, shall be stated in the order of expulsion. When an offense is so severe that the University will not allow the student to re-enroll, the student will be expelled. Expulsion is not a permanent separation, but neither is a definite time set when return is expected. If a student is reinstated after an expulsion, it is only after a complete consideration of his or her case.
. A Strike "is the University's official recognition of a student's or organization's violation of the University's alcohol policy ... A strike is a final University disciplinary action which finds the accused guilty of an alcohol related offense." University of Oklahoma Student Code, 2010-2011, Three Strikes Policy. O.R. at p. 31 A student may request that a First Strike be removed from his or her record, and some aleohol-
. Disciplinary Probation is: "Exclusion from participation in privileged or extracurricular institution activities set forth in the notice for a period of time specified. Other conditions of the probation may apply to any other activities of the student in the University Community, except those which would affect his or her academic pursuits." University's Mtn. To Dismiss, Ex. 2, University of Oklahoma Student Code, 2010-2011, Title 17 Sanctions, 1.4. O.R. at p. 29.
. BNSF Ry. Co. v. Bd. of Cnty. Comr's of Tulsa Cnty.,
. 75 0.$.2011 § 319(1) & (2) states in part the following:
"(1) The filing of a proceeding for review shall not stay enforcement of the agency decision; but the agency may do so, or the reviewing court may order a stay upon such terms as it deems proper, and shall do so whenever required by subsection (2) of this section.
(2) In every proceeding in any court for the review of an order of an agency, upon the filing of an application, supported by verified statements of material fact establishing that the enforcement of the order pending final decision would result in present, continuous and irreparable impairment of the constitutional rights of the applicant, a stay of the enforcement of such order and of the accrual of penalties thereunder shall be entered upon the condition that:..."
. Rules of grammar are presumed to have been known to the Legislature, and a proviso in a statute is presumed to refer only to the provision to which it is attached, and is generally deemed to apply only to the clause or provision immediately preceding it. Goodin v. Brown,
. See, eg., State ex rel. Oklahoma Bar Association v. Mothershed,
. We note that George's construction of § 250.4(B)(12) would fail even if that language was ambiguous as his argument implies. This is so because George's construction takes the statutory distinction between expulsion and non-expulsion proceedings in one portion of the paragraph and negates it with language in another portion of the same paragraph when such negation is not required by the language used therein. One rule of statutory construction used with ambiguous statutory provisions is that the provisions are construed in such a manner as to render all of the language consistent and harmonious with intelligent effect given to all of language. South Tulsa Citizens Coalition v. Arkansas River Bridge Authority,
. Oklahoma's Due Process Clause, Okla. Const. Art. 2, § 7, is coextensive with its federal counterpart, although there may be situations in which the Oklahoma provision affords greater due process protections than its federal counterpart. Oklahoma Corrections Professional Ass'n, Inc. v. Jackson,
Okla. Const. Art. 2, § 7 provides that: "No person shall be deprived of life, liberty, or property, without due process of law."
The United States Const., Amend. 14, provides in pertinent part:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...."
. The fallacy of division occurs when one infers that an attribute of a "part'" of a "whole" must necessarily exist because the "whole" has that same attribute, and fallacy of composition is that an attribute of a "whole" must exist because the attribute appears in a "part" of that whole. See State ex rel. Oklahoma Bar Association v. Mothershed,
. County of Sacramento v. Lewis,
. Although the Oklahoma Constitution does not contain an equal protection provision like or similar to that found in its federal counterpart, this Court has explained that a functional equivalent of the equal protection guarantee of the 14th Amendment of the U.S. Constitution is part of the State's Due Process provision, Okla. Const. Art. 2, § 7. Eastern Oklahoma Bldg. & Constr. Trades Council v. Pitts,
. For example, § 250.4 states that Article II does not apply to The Oklahoma Tax Commission, The Commission for Human Services, The Oklahoma Ordnance Works Authority, The Corporation Commission, Pardon and Parole Board, the Midwestern Oklahoma Development Authority, Grand River Dam Authority, Northeast Oklahoma Public Facilities Authority, Council on Judicial Complaints, Board of Trustees of the Oklahoma College Savings Plan, etc.
. Union Indemnity Co. v. Saling,
In State ex rel. Westbrook v. Oklahoma Public Welfare Commission,
. See, eg., Bird v. Willis,
. State ex rel. Okla. Dept. of Mines v. Jackson,
. Elgin v. Department of Treasury,-U.S.-,
. Kerker v. Bocher,
. Tulsa Indus. Auth. v. City of Tulsa,
. See, eg., Adair v. Clay,
. An admission against a party's interest made in an appellate brief may be used to supplement an appellate record. Jernigan v. Jernigan,
. While George made claims to a property interest protected by constitutional due process, he made no claim that he was deprived of a liberty interest by the actions of the University.
. Crest Infiniti, II, LP v. Swinton,
Dissenting Opinion
with whom COLBERT C.J., and REIF, J., join dissenting:
T1 The district court seeks an answer to the following question:
Does it have jurisdiction to review a University Disciplinary Council proceeding brought against a student?
The answer is:
Yes, but not under the review proceeding provided for in the Administrative Procedure Act (APA), 75 0.8.2011 §§ 250 et seq.
T2 Article II of the APA concerns individual proceedings.
13 Rather, the APA provides detailed procedures to ensure that the same rights which are provided in district court actions are also preserved in administrative proceedings.
T4 At issue here is 750 O.8.2011 § 250.4(B)(12) which provides in pertinent part:
B. As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: ...
12. The Board of Regents or employees of any university, college, or other institution of higher learning, except with respect to expulsion of any student for disciplinary reasons; provided, that upon any alleged infraction by a student of rules of such institutions, with a lesser penalty than expulsion, such student shall be entitled to such due process, including notice and hearing, as may be otherwise required by law, and the following grounds of misconduct, if properly alleged in disciplinary proceedings against a student, shall be cause to be barred from the campus and be removed from any college or university-owned housing, upon conviction in a court of law:
a. participation in a riot as defined by the penal code,
b. possession or sale of any drugs or narcotics prohibited by the penal code, Section 1 et seq. of Title 21 of the Oklahoma Statutes, or
c. willful destruction of or willful damage to state property.
The plain language of this statute states that the University, when holding disciplinary proceedings in which expulsion is concerned, must comply with the individual proceeding requirements of the APA. However, if something less than expulsion is sought, the strict procedural strictures of individual proceedings do not apply, but due process rights such as notice and a hearing and any other rights required by law are preserved and expressly required.
15 Here, because expulsion was not sought, under the plain language of § 250.4(B)(12), the formalities of an individual proceeding were not required. Had they
the APA ends. T6 Title 12 0.8.2011 § 951 fills in where It states:
a) A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law.
(b) Unless otherwise provided by law, proceedings for review of a judgment or finalorder shall be commenced by filing a petition in the district court of the county where the inferior tribunal, board or officer rendered the order within thirty (80) days of the date that a copy of the judgment or final order is mailed to the appellant, as shown by the certificate of mailing attached to the judgment or final order.
Here, the University's Disciplinary Council was acting as the functional equivalent of a judge in a judicial proceeding.
17 Both the APA and § 951 apply to this cause. The district court clearly had jurisdiction to review this disciplinary proceeding. Rather than force this student to start all over, the matter should be remanded for a continuation of that review.
. Title 75 0.S.2011 § 250.1 provides:
A. The Administrative Procedures Act shall be composed of two Articles. Sections 250, 250.1, 250.3, 250.4, 250.5, and 250.8 of this title are applicable to both Articles I and II. Article I relating to agency filing and publication requirements for rules shall consist of Sections 250.2, 250.6, 250.7 and 250.9 through 308.2 of this title and Section 5 of this act. Article II relating to agency notice and hearing requirements for individual proceedings shall consist of Sections 308a through 323 of this title.
B. Except as otherwise specifically provided in Section 250.4 of this title, all agencies shall comply with the provisions of Article I and Article II of the Administrative Procedures Act.
Title 75 0.$.2011 § 250.3 see page 4, infra. D
. State ex rel. Protective Health Services State Dept. of Health v. Vaughn,
. Title 75 0.$.2011 § 309 provides:
A. In an individual proceeding, all parties shall be afforded an opportunity for hearing after reasonable notice.
B. The notice shall include:
1. A statement of the time, place and nature of the hearing;
2. A statement of the legal authority and jurisdiction under which the hearing is to be held;
3. A reference to the particular sections of the statutes and rules involved; and
4. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
C. Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
D. Deliberations by administrative heads, hearing examiners, and other persons authorized by law may be held in executive session pursuant to paragraph 8 of subsection B of Section 307 of Title 25 of the Oklahoma Statutes.
E. Unless precluded by law, informal disposition may be made of any individual proceeding by stipulation, agreed settlement, consent order, or default.
F. The record in an individual proceeding shall include:
1. All pleadings, motions and intermediate rulings;
2. Evidence received or considered at the individual proceeding;
3. A statement of matters officially noticed;
4. Questions and offers of proof, objections, and rulings thereon;
5. Proposed findings and exceptions;
6. Any decision, opinion, or report by the officer presiding at the hearing; and
7. All other evidence or data submitted to the hearing examiner or administrative head in connection with their consideration of the case provided all parties have had access to such evidence.
G. Oral proceedings shall be electronically recorded. Such recordings shall be maintained for such time so as to protect the record through judicial review. Copies of the recordings shall be provided by the agency at the request of any party to the proceeding. Costs of transcription of the recordings shall be borne by the party requesting the transcription. For judicial review, electronic recordings of an individual proceeding, as certified by the agency, may be submitted to the reviewing court by the agency as part of the record of the proceedings under review without transcription unless otherwise required to be transcribed by the reviewing court. In such case, the expense of transcriptions shall be taxed and assessed against the nonprevailing party. Parties to any proceeding may have the proceedings transcribed by a court reporter at their own expense.
H. Findings of fact shall be based exclusively on the evidence received and on matters officially noticed in the individual proceeding unless otherwise agreed upon by the parties on the record.
. Oklahoma Dept. of Public Safety v. McCrady,
. Title 75 0.$.2011 § 318 provides:
AA. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title.
2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions.
3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review.
B. i. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court.
2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, naming as respondents only the agency, such other party or parties in the administrative proceeding as may be named by the petitioner or as otherwise may be allowed by law, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title.
C. Copies of the petition shall be delivered in person or mailed, postage prepaid, to the agency and all other parties of record, and proof of such delivery or mailing shall be filed in the court within ten (10) days after the filing of the petition. Any party not named as a respondent in the petition is entitled to respond within ten (10) days of receipt of service. The court, in its discretion, may permit other interested persons to intervene.
D. In any proceedings for review brought by a party aggrieved by a final agency order:
1. The agency whose final agency order was made subject to review may be entitled to recover against such aggrieved party any court costs, witness fees and reasonable attorney fees if the court determines that the proceeding brought by the party is frivolous or was brought to delay the effect of said final agency order.
2. The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous.
. Title 75 0.S.2011 § 250.4(B)(12), see page 4, supra.
. The due process clauses of the United States and the Oklahoma Constitutions provide that certain substantive rights-life, liberty and property-cannot be deprived except by constitutionally adequate procedures. Dulaney v. Okla. State Dept. of Health,
U.S. Const. amend. 14, § 1 provides in pertinent part:
"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Okla. Const. art. 2, § 7 provides:
"No person shall be deprived of life, liberty, or property, without due process of law."
Once it is determined that due process applies, the question becomes what process is due. Here, the inquiry is answered by 75 0.S.2011 § 250.4(B)(12), page 4, supra which requires notice, hearing, and anything else required by law. In Van Horn Oil Co. v. Okla. Corp. Com'n,1988 OK 42 , 18,753 P.2d 1359 , the Court stated:
Procedural due process of law contemplates a fair and open hearing before a legally constituted court or other authority with notice and an opportunity to present evidence and argument, representation by counsel, if desired, and information concerning the claims of the opposing party with reasonable opportunity to controvert them.
. Title 75 0.$.2011 § 318, see note 6, supra.
. A quasi-judicial duty is one lying in the judgment or discretion of an officer other than a judicial officer. Gray v. Board of County Commissioners,
The corporation commission, the industrial commission, and board of adjustment have all been recognized as acting in an adjudicative capacity as the functional analogue of a court of record with dispute resolution authority. Van Horn Oil Co. v. Okla. Corp. Com'n, see note 8, supra at 112; Special Indem. Fund v. Quinalty,1949 OK 17 , 15,201 Okla. 204 ,203 P.2d 713 ; Torrance v. Bladel,1945 OK 41 , 10,195 Okla. 68 ,155 P.2d 546 . See also, the following cases in which administrative proceedings are conducted in a quasi-judicial capacity. Baumgard-ner v. State ex rel. Dept. of Human Services,1990 OK 24 , 116-10,789 P.2d 235 [Ethics and Merit Commission]; Jackson v. Indep. Sch. Dist. No. 16 of Payne Co.,1982 OK 74 , TT 10-11,648 P.2d 26 [School Board]; Brown v. Banking Bd.,1978 OK 75 , % 32,579 P.2d 1267 [Banking Board]; Board of Examiners of Veterinary Medicine v. Mohr,1971 OK 64 , 113,485 P.2d 235 [Vet. Med. Bd.]; State of Oklahoma ex rel. Oklahoma State Board of Embalmers etc. v. Guardian Funeral Home,1967 OK 141 , 124,429 P.2d 732 [Bd. of Embalmers]; Oklahoma Insp. Bureau v. State Bd. for Property & Cas. Rates,1965 OK 147 , 10,406 P.2d 458 [Property & Casualty Rates Bd.].
. Title 75 0.$.2011 § 250.4(B)(12), page 4, supra.
. See discussion note 10, supra.