*1 Complaints; Judicial the Councilon remanded to the
matter further Council Judicial of Oklahoma Complaints
on with the
proceedings not inconsistent views
expressed in opinion. TRIAL'
JUDGMENT OF THE COURT
VACATED. CASE REMANDED TO THE
COUNCIL ON JUDICIAL COMPLAINTS
WITH DIRECTIONS.
LAVENDER, J. (Acting V. Chief C. Jus-
tice), WILLIAMS, IRWIN and
BARNES, JJ., ROMANG, REYNOLDS CORNISH, Special Judges, concur.
DOOLIN, J., participating.
HODGES, J., BERRY, J., C. certified disqualification
their in this cause. WALTON, Lynn Appellant,
Norris COMPANY, INC., &
CHARLES PFIZER al., corporation, Appellees.
No. 49833. Court Oklahoma. 26, 1978.
Dec.
As Rehearing Corrected on Denial of
Feb.
1191 Martin, Martin, Baker, Baker C. Rabón & basis of the it, record and pleadings before Tulsa, appellant. including for a stipulation plaintiff between Tulsa, City and the of there was no substan- Bales, Gann, Atty., Tom City Waldo F. R. tial controversy any fact, as to material and Tulsa, Atty., appellees. City Asst. for upon that the tort sued arose of out the WILLIAMS, performance governmental of a Justice. function. appeals. Plaintiff 1966, Clinic, an Variety In the Health out-patient operated health clinic and main- Court, In this plaintiff the brief of City through tained the of Tulsa the (appellant) a includes discussion the of his Department, Tulsa Health ad- City-County tory, philosophical political and ba Walton, plaintiff, Lynn ministered to Norris sis, of the sovereign doctrine of immunity, charge, free of three different kinds of vac- argument and principal the advanced is cines at same time. From these the vac- abrogate that this Court should the doctrine cines, allegedly plaintiff suffered adverse figment as imagination”. “a consisting permanent of paralysis reactions Much the of discussion is taken from the the damage of the lower extremities and Chisholm, of early case Ex’r Georgia, 2 organs body, including lower inconti- 419, 419, 440, U.S. Dall. 1 L.Ed. bladder. nence of the “ * ** strongly recommended that 1973, attaining one after year In within Chisholm v. be Georgia read in entirety; plaintiff an for majority, his filed action intelligent judicial as the most utterance on Tulsa, the of the damages against City governmental immunity through America’s Tulsa, private corpo- County of several years, reading”. is worth manufacture, in the rations involved distri- accordingly We have done so. At the of the vaccines. bution and sale After outset, it appears plaintiff that laboring time-consuming proceedings during which misconception under a basic as to what was interrogatories, of consisting several sets of actually decided in which was questions, propound- were several hundred 1793, promulgated in before the 11th answered, plaintiff the ed and dismissed Amendment of the United States Constitu- except City action as to all defendants the adopted. brief, tion appellant’s was In it is of Tulsa. ment tion and filed motion for limits effective on position that the ernmental Tort ernmental “arising 1971, Thereafter applicable performance of for Sec. set out of plaintiff 1755(a)(1), function” out Tulsa was liable for July the limitation Liability Act which became tort sued City Sec. performance a (Sec. 1753) portion of provided 1755. It amount upon Under Tulsa summary judg- arose within of a in 11 of took that any may $2000, out func- Gov- gov- O.S. tort act, the be of said: citizen sued to controversies between a state and a of first of another State ‘ * Supreme Court of [*] “The n Constitution ** 1> [*] of new impression State of Court of between that U.S. to resolve state, was Constitution the was * * * However, silent with United States with State and Citizens so when Chisholm presented United States. controversies ’. vested the respect to the a case that in the doctrine observed also impression, Chisolm was a case of first “governmental immunity from tort lia- suggested but not for the in plain- reason bility” statutory as was enacted a rule opening presentation tiff’s brief. The law, subject provisions act. Attorney Randolph, General representing L.Ed., the plaintiff, 440 of 1 summary judgment for was shows motion judgment for Chisholm was not a citizen “of that was entered sustained (Georgia), judgment, In the state” a citizen plaintiff South $2000. upon court found effect Carolina. also shows that the action trial contend, assumpsit, always was an action in shall the states are us, not, as in the case now before sovereignties”. page, On the next after sounding in action tort. which, noting three methods under older governments, British and French relief was Thus, Chisholmwas not a case in which a in effect sovereign obtained as citizens, in tort of its own state was sued droit, (petitions right, monstrans de in which a state was sued in but a case *3 process in exchequer), the he said that assumpsit by a citizen of another state. “* * * III, widely of the United all of them are remote Article Under (as originally adopted), Constitution from involuntary subjection, States of the sov- judicial power of the United States the ereign, cognizance to the his own courts” controversies “between a extended to State (emphasis supplied). State”, and Citizens of another dissenter, Justice Iredell was the sole be- Supreme given Court was United States ing of the view that enabling legislation original jurisdiction of all cases “in which a required was Supreme before the Party”. question The shall be a State jurisdiction; could exercise page at 446 of 1 impression presented by first Chisholm L.Ed., he said that appears “This to me to because, arose for the first time in such a cases, others, be one of those many in case, the of the the state denied which an article of the constitution cannot Supreme U.S. Court. be effectuated without the intervention of Supreme in ruling The of the U.S. legislative authority”. Chisholm in effect sustained a motion Blair, Justice after a scholarly considera-
Attorney Randolph, General as counsel for question, tion of the page concluded at require Georgia, no- plaintiff, after “* * * L.Ed., of 1 tice, defend, follows that appear and or to suffer a state, when a by adopting constitution, judgment. Georgia represent- default Dallas, agreed has by Ingersoll presented and who to be amenable to ed protestation” power States, and has, “written remonstrance of the United she in that jurisdiction, the exercise of but “in respect, given up right her of sovereignty”. positive consequence of instructions” de- Justice Wilson apparently reached the participate argument. clined to The same page L.Ed., conclusion. At 459 of 1 reported of the record case consists of the he said: opening presentation by Attorney Gen- question “The opens fairly now to our separate opinions partic- eral and the of the view; people states, could the of those ipating opinions, Justices. Those written in among whom were Georgia, those of bind flowery literary style of day, show states, Georgia those and among the oth- that the members of the Court considered ers, by legislative, executive, ju- and question presented grave to be a one power dicial so vested? If the principles, indeed, they and that realized that a tre- on which I have myself, just founded responsibility mendous rested on their true, question and must unavoidably shoulders. After a careful consideration receive an affirmative answer.” thereof, (1) we think it say is fair to abrogate did not the rule that a Chisholm Cushing Justice based opinion solely his sovereign may not be sued without its own upon itself, the Constitution and did not consent, (2) the true and rationale practices examine the laws and of other and that, opinions by adopting is the United countries, older as most of the other Jus- Constitution, people Georgia States page L.Ed., tices did. At 461 of 1 he said had, effect, in consented to be sued in the “Whatever power deposited with the un- U.S. Court. people ion for their own necessary security, curtailing is so far a opening presentation, Attorney power In his of the clear, Randolph prerogatives page (emphasis General made it of states” add- L.Ed., acknowledge, ed). 442 of 1 that “I States; Jay power Justice John opinion Chief United but in cases scholarly enlightening. States, Af- of actions
especially the United considering aspects question, power all there is no ter which the courts can answer to the call to their he reached an affirmative aid. From this distinction “* * * important deducible, whether has question conclusions are not, by being party they place to the national com- the case of a state and the case States, to be suable individual United in pact, very consented different points of view.” (Emphasis added.) another state”. 464 of citizens of See 1 L.Ed. Possibly response holding to the Chisholm, protesta- Congress, the United
The “written remonstrance and States 1794,purposed the 11th Amendment by Ingersoll filed and Dallas on behalf to the tion” United States which was is not set out in adopted by people and became effective argu- we are therefore not advised as in 1798. effectively This amendment however, with- appears, therein. *4 ments raised drew from the United Supreme States considered that the Justices of Court its over controversies be- possible objections to the and discussed all tween a state and citizens of another state. sovereignty cannot be sued with- rule that a adoption amendment, With the of this it consent, possible and all con- out its own that, regard would seem to suits placed reasonably structions that could be against the state in its own courts without III, language from Article upon quoted consent, its the “important difference” ob- Section by Jay served Chief Justice no longer ex- problems of the involved was men- One ists. by Jay. Chief Justice John After tioned Other considerations reinforce this con- had, concluding by adopting clusion. is too well settled to require Constitution, the United States consented citation of authority taxing power that the Supreme to be sued in the United States belongs exclusively to the legislative branch Court, he said at 465 of 1 L.Ed.: government. Oklahoma, In various re- perceive, urges “I and therefore candor placed upon strictions are the taxing power, circumstance, mention, me to which X, 19, including Article of the Oklaho- opposite seems to favor the side of the Constitution, ma provides which as follows: It is this: the same section of question. “Every by act Legislature, enacted judi- the constitution which extends the and every ordinance and resolution power cial to controversies ‘between a passed town, by any county, city, or mu- state’, state and citizens of another does nicipal legislative board or local body, power also extend that to controversies to levying a tax shall specify distinctly the party. which the are a United States purpose levied, for which said tax is Now, said, word, may it be that if the no tax pur- levied and collected for one plaintiff and de- party, comprehends both pose shall ever be devoted to another fendant, follows, United purpose." (Emphasis added.) citizen, be- may by any be sued States may whom and them there be a This section has the denying tween effect of to controversy. appears judiciary This to me to be of this state power to issue reasoning; principles the same execution fair funds of the state or a urge municipality which me to mention this for the money candor collection of suggest judgments against me objection, urge municipal- also the state or a ity the two important prosecuted difference between rendered in a tort action cases. It is this: in all cases actions without the state’s consent. From the citizens, practical standpoint, may states or individual be said to supported are in all their support national courts amount to constitutional for the legal proceedings sovereign and Constitutional rule that not may be sued judgments, by the arm of the executive without its consent. suggests they governmental, that the rule that rather also than
Plaintiff may proprietary, not be sued without sovereign nature. violation of various amounts to a consent In support argument, plaintiff of his cites the state and federal constitu- provisions of City Okmulgee several cases such as However, holding to this effect is no tions. Carlton, 180 Okl. 71 P.2d in which cited, none. we know of activity in operating hospi- summary: plaintiff’s principal argu- In tal was held to be a proprietary function. judicial abrogation of a case, ment in favor In that decided in this Court held sovereign immunity is based the doctrine of paragraph syllabus second proposition that in upon the Court that municipal corpora- “Where a abrogated in toto. As we doctrine was voluntarily tion assumes pow- and exercises case; seen, this is not the on the have ers private intended for the benefit and opinions participating contrary, the advantage of the locality and inhabit- [its they were careful justices show that ants], it is not acting in a * * *” that, adopting the United point out capacity (emphasis added). Of the State of course, States us, in the case now before the City to be sued in the had in effect consented performing of Tulsa was a function manda- citizens of United States torily imposed by acting was not showing compliance another state —thus voluntarily. The function was therefore with, of, abrogation than an the rule rather governmental, and proprietary, not in na- sovereign sued may that the be without ture.
its consent. judgment The of the trial court is af- “regrettable
As a alternative” to the ab- firmed.
rogation sovereign immunity, plaintiff
argues in effect that activities of the LAVENDER, J., BARNES, V. C. City operating Variety of Tulsa in HARGRAVE, JJ., SIMMS concur. to a proprietary Health Clinic amounted rather than a func- function IRWIN, J., concurs in result. tion, that the limitations of the Govern- OPALA, J., specially concurs in result. Liability applica- mental Tort Act are not ble. HODGES, J., DOOLIN, J., C. dissent. However, concedes, plaintiff as OPALA, Justice, specially concurring in Department Health City-County Tulsa result: pursuant requirements established here, lawsuit, At issue as I view this is O.S.1971, seq., portion 1-210 et Sec. whether, broadly speaking, an Oklaho- adopted by Health our Leg the Public Code ma municipality may, consistent with the islature in 1963. An examination of those Due Equal Process and Protection Clauses the statute that the lan sections of shows of the Fourteenth Amendment to the Fed- guage mandatory, merely used is and not eral claim for itself common- directory. phrase “governmental func immunity law because, from tort liability in O.S.1971, tion” is defined in 11 1752 as the exercise of “governmental” function, “All functions of State Government and all possessed with “sovereign” attributes. municipalities functions of which are im law, posed by promote or tend to or serve “Any attempt to so formulate the issue health, general safety and welfare of would fail for want of any respectable fed- public”. precedent Since activities of the eral give support.”; Rather, to operating, through of Tulsa in the Tulsa question shaped the threshold proce- City-County Department, Health posture Varie dural of the case before us is the Clinic, ty required, Health and not constitutional validity of the since repealed merely permitted, by state Act, we hold Liability Governmental Tort 11 O.S.
H95 seq.,1 plain- which limits §§ herein.2 recovery right of tiff’s GARRETT, Appellant, W. R. Had I been on the court when Hamilton Okl., 527 City, v. Oklahoma P.2d 14 [1974] decision, I sought CITY,
came for would have The CITY OF OKLAHOMA act be- declare the cited unconstitutional municipal corporation, Appellee. infirmity in cause it is infected a fatal No. 50923. population its limitation to cities with a 200,000. is, my excess of This restriction Oklahoma, of Appeals opinion, based on unreasonable Division No. 2. hence impermissible classification. inBut this case I feel bound Hamil- Oct. 1978. precedential ton’s force. long So as it Rehearing 1978. Denied Nov. stands I must respect that shield it affords. would, course, I gladly join overruling Order of Released for Publication prospectively. Hamilton Appeals Feb. fall, the “Should Hamilton common-law granting government ‘sovereign rule immu-
nity’ liability from should tort be withheld recognition,
from effective
course at some convenient date in fu-
ture to allow time enactment of appro-
priate legislation fill the void. concept
“The archaic of immunity unfair- government,
ly singles out our tort- qua
feasor, for legal vastly treatment
more favorable than accorded an ordi- citizen in-
nary whose actionable conduct person.3 injury
flicts on another *6 question
“There can be no late power,
date about our both force
statute and the change any common
outdated owes origin norm that judge-made
continued existence to law.4” long as there is life in feel
So Hamilton I
constrained to concur result. Replaced initially provisions immunity legislative 1. of 11 O.S. has rule not received sanc- Supp. July seq., 1977 23-201 effective tion or it is unconsti- §§ where found to have been immunity tutionally Municipal has and then the Political Subdivision Tort enacted. 1, 1978, codified, July Act, O.S.Supp. recently effective Claims 51 1978 been §§ 151-170. 23-210, O.S.Supp. 1977 was then re- § My dispositive formulation of re- 2. issue pealed by O.S.Supp. and re- 1978 § opinion my municipal vac- from firm sults placed liability legislative declaration services, in connection with which the cination O.S.Supp. in 51 1978 153. § committed, alleged to have been tort herein “governmental” function. constituted 4. 12 O.S. 2.§ recognition effectively with- could be Judicial sovereign- instances where the in those drawn