Toxic Waste Impact Group, Inc. v. Leavitt

906 95(3).53 At the cation —constitutes a matter within the certi-

provided by 12 O.S.1991 95(4) fying cognizance.55 court’s enacted the torts of mali time process and abuse of both prosecution cious QUESTIONS CERTIFIED AN- common law Oklahoma were known to the of SWERED. delicts; process yet, abuse of distinct among governed actions included HODGES, C.J., LAVENDER, V.C.J., and upon time Based one-year bar. HARGRAVE, OPALA, WILSON, ALMA canon of construction the time-honored WATT, JJ., concur; SUMMERS phrase expressio of uni- by the Latin known KAUGER, JJ., alterius,54 SIMMS and concur we conclude that us est exclusio of result. legislature intended to exclude abuse of torts for which a process from the class

one-year established. limitation was

VII

CONCLUSION Application of the rules announced GROUP, INC., TOXIC WASTE IMPACT prosecution today requires that malicious be non-profit corporation, Appellee, distinguished process for from abuse of —the pro initiation of mer lies for the malicious perversion and the latter for a cess LEAVITT, K. Joan State Commissioner of process If process is issued. after Health, Depart for the Oklahoma State wrongfully perverted, initiated and later both Health; ment of and Environmental So they torts would lie since are not to be lutions, Inc., Appellants. mutually viewed exclusive delicts. The No. 72235. triggered periods limitation for both torts are respective accrual of the causes of аction. Court Oklahoma. prosecution Because malicious is a tort disfa Dec. jurisprudence vored abuse i.e., process fact-specific, tied to misuse of action, applicable

process particular in a period gauged

limitation must be on a case-

by-case pointed out earlier in basis. As opinion, question the earlier —whether

components of the Process relevant (a) malicious-prosecution claims the

show cause, probable

elements of malice and/or (b) in

punitive damages abuse-of-process improper appli-

claims or ulterior motives or Okl., pertinent Way Freight, 53. The 95 are: P.2d terms of 12 O.S.1991 Motor 1301 n. J., (1984) (Opala, dissenting). recovery The canon is "Civil actions other than for the brought only applicable only real can within the where the natural association following periods, the cause action specific subject of ideas the contrast between a after * ** accrued., shall have and not afterwards: expressed matter which is and one which is not (2) years: Third. Within An for ... two action mentioned leads to an inference that the latter another, injury rights arising was not intended for inclusion in the statute. contract, enumerated; and not Division, hereinafter Okl., Hardesty Corp. v. Andró —Webster [Emphasis ...." added.] (1976); Magnolia Spiers Co., Petroleum 206 Okl. P.2d 856- statutory interpretation 54. This maxim of means (1952). expression thing that the one is the exclusion Bowles, another. Newblock v. 170 Okl. Shebester, (1935). supra P.2d See also Williams v. Lee 55.See note 6 at 606. Sumner, Laughlin, L. Jesse Sumner <&As- sociаtes, Bartlesville, appellee. for Kellogg, City, ap- Robert D. Oklahoma for pellant Dept, State Com’r of Health and Quality-Successor Environmental Dept. State Health Hughes, City, Carl Oklahoma and James Kee, Duncan, appellant L. Environmental Solutions, Inc.

LAVENDER, Vice Chief Justice: We reverse trial court decision matter and remand to that court to deter- issue, preeminent appellee, mine a whether (TWIG) Impact Group, Toxic Waste Inc. challenge permit grant- a certain Solutions, appellant, ed to Environmental (ESI) ‍​​‌​‌​​​‌‌​​​‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​​‌‌‌‌​​​​‌‌‌​‌‌‍ by appellant, Inc. Oklahoma State De- (OSDH) partment Health O.S.1981, proceeding review under 75 318 of the Oklahoma Administrative Procedures Act, O.S.1981, § seq., 301 et as amended O.S.1991, § seq., [now 75 250 et as amend- ed].1 (5) granted year was

ESI a five by injection to construct OSDH a waste OAPA, including by summary disposition. 1. The was amended second motion for Forty-Third Legislature. requests sepa- 1992 Okla.Sess. for sanctions are not contained in (West), motions, §§ Law Serv. Ch. 1-18. The amend- rate but are contained ESI's October response ments are not before us. standing In addition to the to the motion to dismiss as issue, currently proposition proposition before us are two mo- three and as four to its summary disposition reply regarding tions for filed ESI and October its second mo- light summary disposition. two motions to dismiss filed TWIG. In tion for We do not find ruling deny response on the issue we these the initial motion to dismiss or TWIG's requests against summary disposition motions. ESI also sanctions to the second motion for filing wholly summarily deny TWIG for the first motion dismiss and in frivolous and we the re- regard response quests to a filed TWIG to ESI’s for sanctions for this reason. (45) forty-five day Controlled Indus- did so after time limit under Oklahoma well (OCIWDA), Disposal Initially, trial Act O.S. Id. at 631. Waste set OSDH rules. TWIG, seq., § 1-2001 et amended.2 reversed the trial court. 59 O.B.J. citizens, (Okla.S.Ct. 1988). sought to group However, block construc- March taking by voiding permit. Although tion rehearing by TWIG we reversed and re- meetings part public before issues, OSDH disposition manded for of unresolved matter, hear- TWIG did not any. if 755 P.2d at 631. ing, it would been allowed to do as open litigation One and determi- group pursuant 63 O.S. qualified interest upon our nation remand whether TWIG 1-2006(D). 1981, § The OCIWDA allowed appeal granting had public hearings opportunity for both permit under construction 318 of (D). 1-2006(0 hearing meetings. § A person adversely as a OAPA by statutorily requested af- could be defined aggrieved by granting permit, of the the (within of property fected owners one mile though foregone opportunity it the even had site) qualified groups the well and public hearing.3 a to Section legal (organizations with 25 or more resi- parties persons appeals by allowed both аnd Oklahoma) meetings dents of could adversely aggrieved or affected.4 requested by any residing doing person 1-2006(A)-(D). § in

business Oklahoma. appeared court to On remand the trial standing in assume we decided the issue previously. In This case has here been Leavitt, favor TWIG’s virtue modification Impact Group, Inc. Toxic Waste (Okla.1988) (TWIG opinion rehearing, I I), on even we re- TWIG 755 P.2d 626 though did trial not indicate such when we versed a court order which voided opinion changed the to remand case to permit purportedly no actual notice because given mile the trial court determination of unre- property was to owners within one publiс hearing of the site and no was issues. trial court also deter- because solved interpretation party ruled of a mined status at the admin- held. We OSDH’s TWIG had statutory requirement, applying notice istrative level the OAPA in that it had under meetings, public part owners one of the site taken after the within mile held site, hearing requesting public meant one mile from the surface was time for a had proper, lapsed. rather one mile the sub- The trial court further found TWIG than from storage procedures aggrieved surface area. Id. at 629-630. We on the basis the was requested regard proceed- in that had not also held TWIG the OAPA individual followed, e.g. public hearing standing ings not order had no to raise were written law, findings in- question propriety of the of the fact no hear- with fact/conclusions ing request by entity cluding finding proposed on site was held another written who, although public hearing, facility technically requesting physically were adequately OCIWDA known as Oklahoma 3. OSDH raised the 2.The is now Supp. Management October Brief of Hazardous Waste Act. 27A the trial in its Concerning Pro- § [OSDH] note Issue Administrative 2-7-101. We also that in 1992 Proposition Legislature promulgated compre- cedures Act in IV of said brief. Oklahoma argued permitting concerning OSDH even if the Therein hensive set of enactments process governed by proceed- was the individual e.g. Supp. § the environment. See 27A 1- ing provisions OAPATWIG had no stand- seq., of the 1-102 et the Oklahoma Environmental created, ing granting of to obtain review of the Quality agency Act. A new State was aggrieved permit was because TWIG neither Quality, Department the State of Environmental adversely meaning affected within jurisdiction the State which succeeded to the granting permit. § of the 318 of OAPA Department of Health over hazardous waste. amended; seq., Supp.1993, § 27A 2-7-101 et 140, 24, (West), The, § Serv. separate person 1994 Okla.Sess.Law Ch. who as one reference Supp. § may appeal § to be codified at 27A 1-3- 318 was deleted recent under 101(B)(8). indicated, legislative our deci- Unless otherwise 1992 Okla.Sess.Law amendments. 14; (West), O.S.Supp.1993, sion in this matter is based the statutes Serv. Ch. during express of this effect the time the involved 318. We no view the effect granted. deletion. trial suitable the well.5 The court also trial court to make the initial deter- provided determined because the OCIWDA mination on remand. opportunity

for notice and for a hear 1-2006(B)- O.S.1981, ing [63 statute party We first note that the invok (D) ], timely request it did not matter no one jurisdiction a court’s has the burden of public hearing; ed a the matter still had to (when establishing his or her con conform proceeding provi to the individual tested) pursue Lujаn the action court. granting sions of the per OAPA and 555,-, Wildlife, 504 U.S. Defenders of subject mit was to review under the OAPA. 2130, 2136, 112 S.Ct. 119 L.Ed.2d In that the trial court found did OSDH (1992).7 At a minimum contains proper follow the procedures under Lujan, three elements. In the United States again permit. OAPA she set aside the explained Court these three essen tial elements of as follows: appealed. Both OSDH and ESI The main arguments has no TWIG years, Over the our cases have established granting obtain review of the the irreducible constitutional mini- permit under the OAPA and because no mum of contains three elements: timely request public hearing for a was made First, must have an suffered held, and one was permitting process “injury in legally- fact” —an invasion of a subject OAPA, was not even including (a) protected interest which is concrete and proceeding the individual provisions thereof (b) particularized, ... and “actual immi- or provision allowing judicial and the review. nent, ‘conjectural’ ‘hypotheti- or cal,’ Second, ”....

In that we did not there must be a causal standing determine the I, injury issue in connection between TWIG’s favor in and the con- TWIG but that remaining complained injury issue was duct one for trial of—the has to court deter- be “fairly remand, mination in the ... challenged trace[able] first instance on to the again defendant, must remand this action оf ease to the trial and not ... th[e] court for preeminent independent resolution of that result [of] issue. action of some In view ruling standing party Third, on the third not before the court.” it we do not reach the other issues “likely,” opposed raised must be merely to appeal.6 provide guidance this “speculative,” We to the injury that the will be “re- 1-2006(B) required 5. Section person proper OCIWDA party request whether the is the to finding permit granted, such a before a al- adjudication of a certain issue and does not de- though specify the section does not a written itself). ‍​​‌​‌​​​‌‌​​​‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​​‌‌‌‌​​​​‌‌‌​‌‌‍cide the issue finding requests be made when no one a hearing. fairly аlthough The record is clear that jurisprudence articulating 7.Federal stan- finding physical a written and technical suita- standing pursuant dards for to Art. Ill of the made, bility was not OSDH did make such a United necessarily States Constitution do not de- employee determination. An OSDH with re- standing pursuant fine to Art. VII of the Okla- sponsibility under the OCIWDA testified in a However, homa Constitution. in that our stand- hearing prior appeal held to the first in TWIG I ing analogous pronounced standards are to those prior the ing grant- determination was made to the by jurispru- the United States Court its permit. subject dence on the is instructive. Hendrick v. issue, 6. One such raised ESI in Walters, its second (Okla.1993). 865 P.2d 1236 f.n. 14 summary disposition, motiоn for is whether our pursue Since to an action in court is an Rood, (Okla. decision in Stewart v. 796 P.2d 321 case, indispensable part plaintiff's of a 1990), -part, DuLaney overruled in v. Oklahoma supported way any must be in the same other Health, (Okla.1993), Department 868 P.2d 676 upon matter which the bears the burden disposition proceeding controls of the individual proof. Lujan Wildlife, v. 504 U.S. Defendersof aspects parties of this case raised and 555, -, 2130, 112 S.Ct. 119 L.Ed.2d subject whether the was even to 364. This means that a must ini- review under the OAPA. We do not decide these later, tially allege, necessaiy, present and if evi- issues because the issue must be deter- showing injury dence at trial on thоse facts to the mined first. In that no definitive determination plaintiff from the conduct of the Id. defendant. has ever been made on this issue no other issue at-, 112 S.Ct. at L.Ed.2d 2136-37/119 may be decided because is a threshold at 364-365. question. Doan, See Matter Estate 727 P.2d (Okla.1986) (standing determines (cita- clearly authority grant islature to by a decision.” favorable dressed omitted) to statute done someone and has tions and footnote e.g. See so other contexts. Northwest 2136,119 at-, at at L.Ed.2d S.Ct. Id. Motor Datsun Oklahoma Vehicle Commis- sion, (Okla.1987) (automobile 736 P.2d 516 is jurisprudence own similar Our miles of the dealers within ten establishment that, normally, aggrieved status and has held given standing franchise to of new dealer pecuniary persons to whose is limited those dealer). protest licensing of new stand- Such subject directly in the matter interest necessarily ing any injury based rights in injuriously affected or one whose property right, right constitutional other a or is either established divested legally recognized right, may which be done appealed. Missouri-Kansas- the decision qualified group. Merely, to the interest it is (Okla. State, R. Texas Co. legislative policy decision the context 1985). direct, must be The adverse affect qualified groups, that the OCIWDA interest immediate, rather than con substantial public hearing, request granted stand- possible consеquence tingent on some remote participate permitting process. in the possibility of some unknown future even statutory if one assumes Even appropriate inqui tuality. Id. at 42-43. The grant participate permitting process in the ry question is whether the agency affords before administrative also injury legal to a plaintiff has fact suffered aggrieved a basis to claim status sufficient contemplated ly by stat protected interest as seek review under 318 of utory provisions. Indepen or constitutional OAPA, failed that TWIG Glass, District No. 9 v. dent School hearing longer claim can no it has stand (Okla.1982). Only if ex ing through In es avenue. proceed ] must the сase to the merits [Id. ists sence, qualified group its status as only the reason one whose substantial standing inquiry now irrelevant may injuriously appeal rights are position anyone is in no better than TWIG decision, from a however erroneous. See judicial sought might who have review else Motor National Club Oklahoma State § now has under 318. For us to rule TWIG Board, (Okla. 511, 513 393 P.2d Insurance statutory standing seek review 1964). Finally, only standing determines might merely it have had such because person proper party the is the whether group interest had it qualified as a issue; adjudication of a certain it does seek timely public hearing requested be a would the Matter Estate not decide issue itself. ruling appeal. the first antithetical to (Okla.1986). Doan, person mean a To rule would when otherwise TWIG, by failing virtue of entity statutory standing to granted or is hearing by public a force decision process they can participate permitting in a I, statutory cannot said to have TWIG be hearing requesting until wait the time qualified group. Only standing as a interest only go after lapsed then into court (or more more'probably if it one or of its granted and the permit the is claim error members) adversely or aggrieved fact particulars, in all was not followed its OAPA affected, §in as those are used terms though no such before even it mаde claims it now claim to contest the can agency. not and Such is administrative permit. of the issuance although Accordingly, cannot be the law. might organization group is an that qualified entities such TWIG As statutory statutory standing, gave up it such claimed granted have been stand- as TWIG by timely request a hear claim its failure to ing granting to contest the of a construction agency.8 Leg- before the administrative permit for a hazardous waste site. The unavailing. We did not rale in TWIG I response 8. TWIG claims its merit brief in this (really review of judicata TWIG had to obtain appeal some law of form of res doctrine) § as a applied 318 of the OAPAeither be on the under the case should group party argument qualified interest or as Such is issue its favor. can agency Neither TWIG’s be of an administrative under 318 of simply participation its agency based on OAPA must be shown the meetings. injuriously if decision affects Even one assumes the trial the substantial rights person. by National Motor Club is correct TWIG virtue of such Oklahoma, supra, 393 P.2d at 513-515. It participation party was a to an individual is also making well to remember that a case proceeding under the OAPA this fact alone one, easy such as TWIG’s is not an and that standing inquiry. does not answer the In when challenging government Oklahoma, swpra, National Motor Club of regulation aрplicant of an such as ESI facts right protest 393 P.2d at we held the necessary non-statutory standing are dif- agency and submit evidence before an does Lujan put way: ficult to show. it this ipso grant protesting party facto When the suit challenging is one right appeal agency to maintain an from the legality government inaction, action or protesting party decision. The must still the nature and extent of facts that must be aggrieved adversely show it is somehow or (at summary judgment stage) averred affected the administrative order. Id. (at proved or stage) the trial in order to question, The determinative whether it be a standing depends establish considerably party person seeking judicial or review of an upon whether the is himself an administrative decision under (or action) object foregone of the action at aggrieved adversely whether or affected sta is, If ordinarily issue. he there is little tus can be shown. See Roussel v. State ex question that the action or inaction has Grimes, (Okla.1980) rel. 56-57 injury, caused him judgment and that a (determinative question as to preventing requiring or the action will re- person under party 318 is whether the or When, however, case, dress it. as in this aggrieved adversely or affected plaintiff’s injury asserted arises from the decision).9 agency government’s alleged regulation unlawful mean, however, This does not (or else, regulation) lack of of someone TWIG, or, entity probably, as an more on much more is needed. In that circum- members, behalf of one or more of its would stance, redressability causation and ordi- precluded attempting from to show it narily hinge response regu- person somehow has in fact (or as a regulable) party gov- lated third aggrieved adversely grant affected ernment action or perhaps inaction —and However, permit. ag for one to be response of others as well. The grieved adversely the decision existence of one or more of thе essential process leading up the administrative property This owner was ESI’s lessor and all Thus, grant permit. lessor(s) of appear agree, the the law of the request case to said did not a apply public hearing doctrine does permit granted to favor TWIG on or the contest the to Therefore, standing oper issue the ESI. reason that doctrine no individual member of TWIG relitigation only any statutorily granted ates to standing bar of those can now claim issues actual ly appellate opinion. granting settled an under the OCIWDAto contest the Willis v. Now of the Co., Inc., not, however, TWIG, permit. preclude ata Land and This does Cattle. members, (Okla.1989). on standing f.n. behalf of one or more of its As to the from issue, however, attempting member(s) to show that said what TWIGI did determine was standing by right virtue of some request public hearing prior that constitutional to TWIG did not a opportunity hearing independent notice and filing to a proceeding to the in the district court seek DuLaney of the ing judicial OCIWDA. See granting Oklahoma De permit review of the of the Health, partment (Okla.1993). and forty-five it had no to contest the of (45) day requesting time limit for a hear conformity in with the rules of OSDH. Toxic 9. It should be remembered the OCIWDAallows Leavitt, Impact Group Waste 755 P.2d at 631. requesting public meeting by any for the of a These unеquivocally fully fairly issues were and person residing doing or business in Oklahoma. litigated Likewise, against 1-2006(C). TWIG in TWIGI. text, our § As noted in the even if it is conclusively decision in TWIG I determined persons participate assumed all who in the meet- only property there was one affected ings owner enti parties proceeding, to an individual to statutory personal tled to notice as an affected judicial § obtain review under 318 of the OAPA and, thus, owner aggrieved be, entitled the adversely OCIW- or must status public hearing. DA to Id. at 627-630. shown. adversely any will affected in “depends the un- been or be on of elements direct, way by the substantial and immediate by independent ac- choices made fettered permit. the it does granting and exer- of instant Until courts whose not before the tors case the no other in this can be decid- legitimate discretion so of broad and cise trial presume Accordingly, control or the decision of the either to ed.10 courts cannot ...; the bur- and REMANDED and it becomes REVERSED predict,” to showing facts to determine to adduce DIRECTIONS den of WITH will be have been or issue. that those choices produce causa- in manner as made such HODGES, injury. C.J., SIMMS, redressability permit

tion and HARGRAVE, SUMMERS, JJ., Thus, is not himself OPALA when government ‍​​‌​‌​​​‌‌​​​‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​​‌‌‌‌​​​​‌‌‌​‌‌‍action inaction object or concur. precluded, challenges, is not

he WATT, WILSON, ALMA KAUGER and “substantially more dif- ordinarily it but JJ., part. in in part; concur dissent establish, (emphasis original; in ficult” omitted) citations OPALA, Justice, concurring. — at-,

Lujan, supra, at S.Ct. U.S. today The court holds that Toxic Waste at 365. 119 L.Ed.2d Group, Impact Inc.’s claim must [TWIG] prius for nisi determination now claim remanded In that TWIG cannot qualified group, it has TWIG has as a Hohfeldian standing as a whether plaintiff1 ie., legally-pro- it has yet any it its has whether or of members shown — they by the Id. at September dismiss be made trial court. TWIG moved to rections 10. In expired appeal ESI's fin. 15. basis 1, supra, light September in terms on 1990. Mootness As stated note its own required on the basis ESI now decision on the issue which necessitates is claimed per- application deny a new construction make reversal of the trial court's decision rely response part and ESI in mit. In OSDH dismiss based on mootness. TWIG’s motions to O.S.1991, 1-2012.4, However, renum- [63 a new statute trial court determine TWIG should the Supp.1993, § 2-7-132 and in 1993 27A bered of the obtain review Okla.Sess.Law Serv. amended in 1994. See 1994 (West), granting permit, issues mootness they claim has the effect 25] Ch. proper subject be a raised TWIG would extending permit. contained in the time limit inquiry by parties at that court and the trial (5) year argues also time limit ESI five present arguments support of time could their stayed permit was on motion TWIG itself opposition application of eithеr of or in prior appeal and trial court to the initial statutes above. new set forth again filed a second motion on remand. TWIG July also based on mootness. to dismiss legal entity plaintiff is a A Hohfeldian 1. essence, argues [63 another new statute In it has "a determination that seeks O.S.1991, 1-2014.3, renumbered in 1993 immunity right, privilege, power" vis-a- or a an Supp.1993, § 2-7-114 amended 27A Jaffe, litigation. opposite party vis (West) Ch. See 1994 Serv. Okla.Sess.Law Litigant non- As In Public Actions: The Citizen being prohibits facility § 20] a new from Plaintiff, Ideological 116 U.Pa. Hohfeldian (8) any eight incorporated located within miles (1968). plaintiff, non-Hohfeldian L.Rev. A proposed city town and that the well is within hand, judicial rеlief sues to secure on the other (5) cities or distance from five Oklahoma this persons or the commu- that would benefit other towns. qui the nity of as a whole. Id. The tarn law, primarily to benefit common who sues Com’n, 745 American Ins. Ass'n v. Industrial In entity, typically Okla- is non-Hohfeldian. (Okla.1987), we held on review P.2d 737 unless Okl., Nigh, City v. News Broadcasters Ass’n homa liberty some interest which there is 72, (1984) J., (Opala, concurring 683 P.2d 78 n. 2 requires apply or vested us to to the accrued Moore, result); City Trimble in State ex rel. v. controversy rights the law in force at a fixed in of Okl., 889, (1991); v. 894 see Flast 818 P.2d prior change, point an in time to its most recent 1942, 1963, Cohen, 83, 120, 20 88 S.Ct. 392 U.S. controlling statutory of law between amendment (Harlan, J., (1968) dissenting); 947 L.Ed.2d aрpellate court decisions should the trial and Scott, Standing Func- the Court—A in recognized, applied. Id. at We also howev- 740. 645, er, Analysis, n. 1 86 Harí.Rev. 660-662 appellate tional (1973); cannot exercise first-in- an court Others, Davis, Standing: Taxpayers and making jurisdiction by decisions on stance initial 601, (1968); also necessary findings 604-607 see 35 U.Chi.L.Rev. law and facts or when 3, Morton, 727, absent, 92 v. 405 U.S. 732 n. with di- Sierra Club the case must be remanded 914 tangible in litigation interest I

tected and proceed trial court.2 To with its before the FEDERAL VERSUS STATE STANDING must that claim TWIG demonstrate there is Standing6 legal system the federal logical between the status it nexus asserts constitutional/jurisdictional imbued with di- adjudicated. and claim it seеks to have mension, body while of state law it fits predicated injury Its must be on an ordinary procedure. under the rubric of The “direct, to an which is immediate and Constitution, III, long U.S. Article been Although I concur in substantial.”3 require “controversy” held to that a “case” or of for court’s remand the cause determina- juris- is essential to invoke federal (a) standing, separately I tion of write person’s competence diction that a and reemphasize the distinctions between bring an is a component federal action core of stand- 4 (b) standing concepts and and to call state case-or-controversy inquiry.7 in a It is. the Bench the Bar to attention of and integral this reason that is an which, part invoking of jurisprudence5 through extant in- the mechanism for the feder- an power.8 judiciary’s al law, advertent reference to federal created misimpression legal that in the state places Oklahoma’s fundamental no law re- system standing “jurisdictional” has a di- judiciary’s straint power analogous on the case-or-controversy requirement. mension. the federal 1361, 1364-1365, Warth, (1972); 498, supra, S.Ct. 422 31 L.Ed.2d 636 U.S. at 95 S.Ct. at 2205. Valeo, 642, (D.C.1977). Clark v. 559 F.2d 675 controversy” In Because of the Art. Ill "case or requirement, stockholder's derivative suit is a com federal categoiy qui very plaintiff. same as a tam subject ponent jurisdiction. its matter In con of Inc., Okl., Century Bankcorporation, Warren v. trast, legal system standing in the Oklahoma 846, 847, (1987). 741 P.2d 853 component any indispens not a of of the three I, jurisdictional subpart able elements. See infra. case, opinion 2. An earlier Toxic Waste Leavitt, Okl., Group, Impact Inc. v. 755 P.2d 626 Doan, Okl., 5. See Matter Estate 727 P.2d /], (1988) of of held that did [TWIG TWIG not meet 574, (1986). 576 for the of criteria conferral Manage- under the Waste Oklahoma Hazardous [OHWMA], O.S.Supp.1993 § ment Act 27A 2-7- Standing system origin 6. federal owes its [previously 101 known as the Oklahoma Con- practice by English parliament to a historic (OCIWDA), Disposal trolled Waste Act Industrial "allowing only opponents legislative those seq.]. §§ 63 1-2001 et O.S.1991 proposals directly ... or were [who] interests Benck, specially affected to be heard.” Okl., Party Estep, 3. Democratic v. Oklahoma Standing Legislators, State and Federal 23 271, (1982); Application 652 P.2d 274 State ex 811, (1983), citing 813 J. Vin Sant.Clara L.Rev. Okl., 605, Dept, Transp., rel. 646 P.2d 609 55, ing, Identity (1978). Legal 55-56 Under this Okl., (1982); 514, Lathrop, Undersidev. 645 P.2d legislative procedure opponent an (1982); Harrison, Cleary Corp. 517 Petroleum v. proposed legislation was said have locus stan Okl., 528, (1980). 621 P.2d right appearance given ques di ["A ... on a requisite (5th The three elements for the Dictionary tion.” Ed.1979)]. at 848 Black’s Law (a) power’s jurisdiction exercise are: over the English judiciary adopted these (b) parties, jurisdiction subject over the matter interest-in-legislation required criteria and (c) power particular judgment. to render a parties litigation. an interest in the Id. Okl., Corp., Carlile Trust Cotton Petroleum at 813 n. 17. (1987); Chamberlin, P.2d Okl., Chamberlin v. (1986); Mayhue May standing, 7. When the claimant is without there is hue, Okl., (1985). n. 8 See simply "controversy”. no "case” or See C.A. also C.A. at 26 Courts Weight, Law of Federa! at 59-74 Courts Wright, Law Federal (4th 1983). litigant ed. In federal court must (1983). Lujan See also Part I of v. Defenders of overcome two threshold hurdles: "constitutional - -, -, Wildlife, U.S. 112 S.Ct. jurisdiction pru federal limitations of courts' I, (1994) [Part L.Ed.2d unlike Part dential limitations on its exercise.” Warth v. III-B, represents opinion majority of a Seldin, 490, 498, 2197, 2205, 422 U.S. S.Ct. 95 members]; Flast, supra Court’s nоte 1 at 392 (1975). [Emphasis supplied.] 45 L.Ed.2d 343 93-94, U.S. at 88 S.Ct. at 1949. aspect The constitutional of federal tied to "whether the has made out a Flast, 112-13, supra controversy’ 'case or ‍​​‌​‌​​​‌‌​​​‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​​‌‌‌‌​​​​‌‌‌​‌‌‍himself 8. See note 1 at between and the 392 U.S. 88 ' meaning defendant within the of Art. III.” S.Ct. at 1959.

915 procedural party terms art —real Procedure9 earlier Code of Civil earlier Under interest, appealable interest, one one party with brought real suit had to be always pecuniary- occupying aggrieved-party requirement That has interest.10 during court It was this transi- non-jurisdietional.11 If state interest status.17 been pressed opinions18 inadvertently adjudicate a claim tion that one of our procеeded to status, jurisdic- “standing” its decision was of a one not that referred terms infirmity fraught jurisdictional requirement, creating but thus with misim- tional regarded jurisdictional as erroneous want pression rather that the term has a important an element proof establish no dimension. constitution has Oklahoma’s category is An error in this the claim.12 case-or-controversy Standing is clause. and, defendant; option adjective-law waivable at the as an hence to be viewed con- reviewing appeal, the court if not asserted on cept. The reference to the con- inadvertent despite a may reach merits the case as trаry should be treated ineffective to alter nisi apparent lack of at plaintiffs body standing’s character in the true prius. procedural law.

II Ill MAY INFER INSOFAR AS DOAN13 DETERMINE REMAND TO TWIG’S THAT HAS A JURIS- “STANDING” STATUS AND ITS POST-PROTEST DIMENSION, IT TO DICTIONAL IS THE CLAIM NEXUS TO ASSERTED BE AS VIEWED WITHDRAWN PROPER IS the Code of Civil Procedure14 Ever since Code,15 Today’s to determine TWIG’s remand replaced Pleading in 1984 i.e., as a Hohfeldian identifying party nomenclature for — sue, proprietary inter- began person personal that of with a entitled to which follow necessary. “standing” at stake19 —is Absent a con- jurisprudence,16 federal has used est definition, trary standing is equivalent if it tied were a functional 167, (1966); seq. Ewing, v. 263 §§ Woodrow P.2d 1908 3529 et 516 9. Okla.Stat. (1953). 171 22.01, K.C. 10. Davis, Law Administrative Treatise Doan, (1958), supra note 13. See 5. discussing be- at 210 the distinction tween state and federal notes: supra 8 for the Code of Civil Proce- 14. See note very broadly, "Speaking the state that courts dure’s citation. [of their own doctrine stand- constructed ing] independently of federal doctrine have seq. §§ O.S.Supp.1984 et 15. 12 2001 usually simpler, artifi- tended toward the less cial, satisfactory anyone idea and more today's opin- adopted in See the test 16. injured substantially who is fact adminis- ion, terminology Lujan, parallels which challenge trative it.” action - -, at supra U.S. at 112 S.Ct. note 7 at are analo- Little, 206, 459, 2134. Since our standards Baugh 140 282 462 v. Okl. P. 11. pronounced by though gous identical to those (1929). Bankcorporation Hawkеye v. also See Court, the latter's Commission, 798, the United States College 360 Iowa Aid N.W.2d always v. jurisprudence instructive. Hendrick (Iowa 1985); the Land v. Land Use 802 Life of Walters, 1232, (1993); Okl., n. 14 865 P.2d 1236 Com’n, 166, 431, etc., 438 63 Haw. 623 P.2d White, Okl., 255, 266 Campbell 856 P.2d Leatherwood, 806, v. (1981); v. 542 S.W.2d Knierim (1993). (Term.1976). Okl., See, e.g., Lathrop, v. 645 P.2d Underside power to decide includes 17. 12. (1982); Cleary Corp. Petroleum wrongly. power to decision decide An erroneous Harrison, (1980). Okl., P.2d 530-31 binding is set as one that is correct until it provided by in a law. aside or corrected manner Doan, supra Gillum, Okl., note 5 at 576. See P.2d 18. Hodges Co. Bill Truck (1989); Ferguson Ferguson v. Motor Okl, Co., Okl., (1988); Bailey, 844 P.2d See Fowler v. Citizens Okl., J., Hall, (1992) [Opala, concurring]. Hugo v. State Bank of concept plaintiff.20 of a Hohfeldiаn Nei- ther nor OCIWDA21 OHWMA22 discloses a

legislative beyond pro- intent to extend period test status autho- non-Hohfeldian stage proceedings.

rized for the earlier negative

TWIG I23 answered in the sin- question

gle statutory whether TWIG had standing. It did not address TWIG’s stand-

ing as a Hohfeldian or common-law post-protest

in the permit-issuing process.

IV

SUMMARY opinion

I concur today’s

disposition of this If I writing cause. were court, additionally

for the I would declare

that Doan’s inadvertent reference to federal

law is to be Lujan’s viewed as withdrawn.

tripartite test, which adopt to-

day, having must be treated as been received jurisdictional

sans its baggage. federal BALFOUR, D.C.,

Debora K. d/b/a Chiropractic Chickasha

Clinic, Appellant, NELSON, individually,

Debra Paul

Debra Paul Nelson as mother and ‍​​‌​‌​​​‌‌​​​‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​​‌‌‌‌​​​​‌‌‌​‌‌‍next Jeremy Sharay Phillips

friend of Latray Phillips, children;

Jerome minor Krabbinhoft, Jr.; Waggoners

Erhardt

Trucking Company; and Continental In Company, Appellees.

surance

No. 81569. Court Oklahoma. 20, 1994.

Dec. supra 20.See supra note 1 for the identification of a 21. See note 2 for the OCIWDA citation. plaintiff. general Hohfeldian aFor discussion of distinctions between and common- supra 22. See note 2 for the OHWMA citation. standing, law [Hohfeldian] see 3 K.C. Davis, Ad- 16.7, (3d at 47-49 ed. ministrative Law Treatise 1994). supra 23. See note this case’s citation.

Case Details

Case Name: Toxic Waste Impact Group, Inc. v. Leavitt

Court Name: Supreme Court of Oklahoma

Date Published: Dec 20, 1994

Citation: 890 P.2d 906

Docket Number: 72235

Court Abbreviation: Okla.