author: OPALA, J.

text:
    2002 OK 51
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Fred M. SCHRAEDER, Respondent.
    No. 4597.
    Supreme Court of Oklahoma.
    June 18, 2002.

      Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for complainant.

      William G. LaSorsa, Jones, Givens, Gotcher & Bogan, Tulsa, OK, for respondent.
   OPALA, J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: [1] Does .the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and [2] Is a license suspension for thirty (30) days an appropriate disciplinary sanction for respondent’s breach of professional ethics? We answer both questions in the affirmative.

I

INTRODUCTION TO THE RECORD

¶ 2 On 26 January 2001 the Oklahoma Bar Association [Bar] commenced this disciplinary proceeding against Fred M. Schraeder [Schraeder or respondent], a licensed lawyer, by filing a formal complaint in accordance with the provisions of Rule 6 of the Rules Governing Disciplinary Proceedings [RGDP]. The complaint alleges in four counts multiple violations of the Oklahoma Rules of Professional Conduct [ORPC] and of the RGDP. The charges include two grievances advanced by separate clients and respondent’s failure to respond to the Bar’s investigative inquiries in both matters. The Bar has since withdrawn its reliance on ORPC Rules 1.1, 1.2, 1.3, 3.2 and 8.4(c) in Count I (the McMinn grievance); ORPC Rules 1.1, 1.3, 1.5, 1.16(b)(2), (d), 3.2 and 8.4(c) in Count II (the Parsons grievance); and on ORPC Rule 8.4(c) in Counts II and IV (for respondent’s failure timely to respond to the Bar’s inquiries). The Bar now rests the four counts solely on: (1) ORPC Rules 1.4,1.5,1.15(b), 1.16(b)2, (d), 3.2, 8.4(a) and RGDP Rule 1.3 in Count I; (2) ORPC Rules 1.4, 1.15(b), 8.4(a) and RGDP Rule 1.3 in Count III; and (3) ORPC Rules 8.1(b), 8.4(a) and RGDP Rules 1.3 and 5.2 in Counts II and IV.

¶ 3 At the commencement of its hearing on 16 May 2001 a trial panel of the Professional Responsibility Tribunal [panel or PRT] recognized for the record the admission of the parties’ stipulations of fact, conclusions of law and an agreed disciplinary recommendation. As for mitigation, the parties agreed that respondent had never before been disciplined (by the Professional Responsibility Commission or by this court) or been the subject of a formal investigation by the Bar’s counsel. The parties submit professional burnout syndrome as a factor to be considered in mitigation of respondent’s culpability.

.¶4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties’ stipulations). The panel recommended that respondent receive a private reprimand and be directed to pay the costs of this proceeding.

II

THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING

¶ 5 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance. The court’s jurisdiction rests on the eourt’s constitutionally vested, nondel-egable power to regulate the practice of law, including the licensure, ethics, and discipline of this State’s legal practitioners. In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts, in which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive. In its task, the court is not guided by the scope-of-review rules that govern corrective relief on appeal or in certiorari proceedings in which another tribunal’s findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.

¶ 6 The court’s duty can be discharged only if the trial panel submits a complete record of the proceedings. Our initial task is to ascertain whether the tendered record is sufficient to permit (a) an independent on-the-record determination of the critical facts and (b) the crafting of an appropriate discipline. The latter is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment of an offending lawyer.

¶ 7 Having carefully scrutinized the record submitted, we conclude that it is adequate for de novo consideration of the respondent’s alleged professional misconduct and of the discipline to be imposed.

Ill

FACTS ADMITTED BY STIPULATION

¶ 8 The parties have tendered their stipulations by which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands admitted. It serves as an evidentiary substitute that dispenses with a need for proof of facts that are conceded by the parties’ agreement. Stipulations are subject to the approval of the court in which they are entered. Respondent’s stipulations of facts (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties’ tendered stipulations.

A

Count I — The McMinn Grievance

¶ 9 Count one is predicated upon a grievance by Perry A. McMinn [McMinn]. McMinn hired respondent to assist in a criminal appeal filed in the United States District Court for the Northern District of Oklahoma. He paid respondent on 4 September 1997 the sum of $2,000 by cashier’s cheek as part of the agreed fee of $10,000 and gave Schraeder an additional $800 on 21 January 1998.

¶ 10 After writing McMinn in February, March and May of 1998, respondent ceased communicating with his client and failed to file any motions or briefs in his appeal. Following respondent’s inactivity, McMinn filed a motion on his own behalf and wrote respondent a letter, dated 5 May 1999, asking him to review and revise the document. When respondent failed to reply, McMinn wrote him again on 2 June 1999 and enclosed copies of several eases that he wanted him to review. Respondent did not answer the June 2 letter; he claims that he never received the letter or the enclosed cases. By letter dated 27 September 1999 McMinn requested a detailed accounting of all costs and legal services expended on his behalf and a refund of the unearned portion of the $2,800 fee. Respondent failed to answer the September 27 letter.

¶ 11 Schraeder insists (1) that he filed no briefs or pleadings in the McMinn case because he was waiting to receive pertinent information from McMinn’s family to proceed with the appeal and claims (2) that he neither responded to the September 27 letter nor provided the requested accounting because he believed that he had earned the $2,800 fee by (a) researching the various issues in the McMinn appeal, (b) speaking on several occasions to members of McMinn’s family and (e) traveling twice to visit McMinn at the Adult Detention Center in Tulsa, Oklahoma.

¶ 12 The Bar and respondent agree that the latter’s misconduct violates the mandatory provisions of ORPC Rules 1.4 (failure promptly to communicate with his client’s request for information),1.5 (failure to charge reasonable fees), 1.15(b) (failure promptly to account for and return any unearned fees), 1.16(b)(2) and (d) (failure promptly to notify McMinn of his withdrawal from the appeal), 8.4(a) (misconduct) and RGDP Rule 1.3 (bringing discredit upon the legal profession). Upon de novo review of the record, we hold the charges are supported by clear and convincing proof that respondent’s conduct warrants the imposition of discipline.

B

Count III — The Parsons Grievance

¶ 13 In Count three of the complaint the Bar charged respondent with failure to communicate with a client and to perform the work for which he was hired. Around 13 February 1999 Loretta Parsons [Parsons] retained Schraeder to represent her grandchildren’s interest in her deceased daughter’s estate. He was also to represent another granddaughter in both a criminal and a domestic matter. Parsons paid him $1,500.00. She also delivered to him several documents relevant to the estate as well as to possible civil litigation pertaining to her daughter’s death. Respondent claims that Parsons paid him the fee to represent two of Parsons’ adult children in three legal matters but that he never agreed to represent her in any wrongful death or other civil action. He insists that he completed the criminal and domestic matters for one granddaughter and performed work in the probate case.

¶ 14 The record is replete with letters from Parsons to respondent in which she insists that her efforts to communicate with respondent and to retrieve from him personal documents relating to a wrongful death suit proved unsuccessful. Schraeder takes the position that he terminated all communications with Parsons because his representation ended after the conclusion of the estate matters for her grandchildren and another family member’s criminal case and annulment.

¶ 15 A constant flow of communication between an attorney and client constitutes a vital part of a lawyer’s professional undertaking. When a client seeks information from one who is retained for representation, prompt responsive action should be forthcoming. Prolonged and willful silence by the lawyer’s failure to return calls or answer letters is the very kind of neglect that destroys the public’s confidence in the lawyer’s integrity,

¶ 16 Both the Bar and respondent agree that the latter’s actions violate the mandatory provisions of ORPC Rules 1.4, 1.15(b), and 8.4(a) and RGDP Rule 1.3 and constitute grounds for the imposition of professional discipline. On de novo review of the record, we hold there is clear and convincing probative support in the record for a breach of professional ethics and that the imposition of discipline is warranted.

C

COUNTS II AND TV — Failure Timely to Respond to the Bar’s Investigative Inquiries into the McMinn and Parsons Grievances

¶ 17 Counts II and IV address respondent’s delay in filing his response to the Bar’s investigative inquiries in the McMinn and Parsons grievances. Respondent failed timely to respond to the Bar’s three written requests and promptly to take action with respect to statements he made on two occasions to the Bar’s investigator.

The McMinn Grievance

¶ 18 The Bar notified respondent by letter dated 16 February 2000 that the McMinn grievance was being opened for formal investigation, invoMng the requirement that Schraeder provide a complete response within a twenty-day (20) period. On March 14 the Bar notified Schraeder by certified mail containing a warning that failure to respond would result in the issuance of a subpoena duces tecum and require his testimony at the Bar Center. Respondent offered an explanation in a belated letter to the Bar (dated March 13 and postmarked March 16). He claimed that McMinn failed to provide critical information in a timely fashion and that any delay was caused by the lack of information he needed to proceed with the McMinn appeal.

¶ 19 The Bar’s assigned investigator, Ray Page [Page or investigator] met with Schrae-der concerning the McMinn and Parsons grievances. Schraeder assured Page that he would attempt to resolve with McMinn the dispute over the unearned portion of fees. Respondent’s undated letter to the Bar, received 22 November 2000, shows that he wrote McMinn asWng what portion of the fee he desired to have returned to him. McMinn’s November 28 letter to respondent requested a refund of the entire $2,800.

¶ 20 By a 16 December 2000 facsimile transmission, respondent advised Page of his letter to McMinn and of McMinn’s November 28 response. Contrary to respondent’s statement that he would send Page a copy of his response to McMinn’s November 28 request, the Bar received a December 26 letter from McMinn advising that he had not received a response to his November 28 letter. Respondent concedes that he did not promptly respond to McMinn’s November 28 refund request, but claims that the delay was caused by the closing of his private practice and the moving of his law office. Respondent eventually provided McMinn with a full accounting of legal services and has refunded approximately $1,195.00 of the $2,800 fee. The respondent’s conduct violates the mandatory provisions of ORPC Rules 8.1(b) and 8.4(a) and RGDP Rules 1.3 and 5.2 and warrants the imposition of discipline.

The Parsons Grievance

¶21 By letter of 10 May 2000 the Bar advised respondent of Parsons’ complaint and directed him to communicate with her within two weeks. Respondent wrote to Parsons and was informed by her letter of May 23 which items she wanted him to return. Because respondent neither returned the requested documents nor responded to her letter, the Bar demanded (by letter of June 5) that respondent return the items to her by June 13 or at least offer an explanation as to why it would have been impossible for him to do so. Respondent was advised by the Bar’s letter that failure timely to respond would be grounds for discipline and result in a formal investigation.

¶ 22 One 14 June 2000 the Bar received a letter from Parsons stating that respondent had neither communicated with her nor returned the requested items. Two days later the Bar received a letter from respondent, dated June 12 and post-marked June 15, which advised that he had previously forwarded all documents to Parsons and that he could find no additional items in his office.

¶ 23 The Bar notified Schraeder by letter of 10 July 2000 that it was opening the Parsons matter for formal investigation, again invoking the requirement of a written response within twenty days. On Auyust 1 Parsons notified Page, the Bar’s investigator, that she had entrusted certain documents to respondent when she retained him to file a wrongful death action. She explained that the documents were needed so that a lawsuit could be filed by another lawyer before it became time barred. Page’s August 11 letter to respondent requested that he again search for the items, stressing that a response was needed within 10 days to prevent the statute of limitations from running out. No reply was forthcoming from Schraeder.

¶24 After being advised by Parsons on August 22 that respondent had not contacted her about the missing documents, Page called respondent, leaving a message on his machine to return his call. Schraeder failed to respond.

¶ 25 Page finally met with respondent at his Drumright office on 7 November 2000. Respondent assured him that he would contact his former secretary to see if she could help him locate Parsons’ missing documents. The following day respondent telephoned Parsons, advising her of his plan to enlist the aid of his former secretary. On December 14 respondent advised Page that he had located the missing documents and would mail them to Parsons the next day, as well as send the Bar a copy of the returned mail receipt. Respondent confirmed these plans by December 16 facsimile transmission to Page. The record indicates respondent did not return the remainder of Parsons’ files until on or about 21 March 2001. Respondent insists that the delay was due to activity in closing his private practice.

¶ 26 The terms of RGDP Rule 5.2 provide that the failure of a lawyer to answer the Bar’s request for information shall be grounds for discipline. A lawyer’s obligation to respond to a Bar complaint is mandatory and leaves no room for interpretation about the proper form or time for filing a response. Respondent admits that he violated the mandatory provisions of ORPC Rules 8.1(b), 8.4(a) and RGDP Rules 1.3, 5.2 and that his misconduct constitutes grounds for the imposition of professional discipline. We agree. The only question remaining here is the proper disciplinary measure to be imposed for respondent’s breach of professional ethics.

IY

FACTORS TO BE CONSIDERED IN MITIGATION OF DISCIPLINE

¶ 27 Mitigating circumstances may be considered in the process of assessing the appropriate quantum of discipline. Respondent has raised several factors in mitigation.

¶ 28 Respondent submits medical proof that he suffered from occupational burnout diagnosed by his physician during the time of the breach. When the condition is tendered as a mitigating factor for assessment of one’s culpability there must be a causal relationship between a medical condition and the professional misconduct charged. Fef emotional or psychological disability, though it may serve to reduce the actor’s ethical culpability, does not immunize one ñ'om imposition of disciplinary measures that are necessary to protect the public. The record provides a sufficient causal connection between respondent’s ethical lapses and his professional burnout syndrome. His condition is now believed by his physician to have been arrested. Respondent continues to be seen once a week as part of an ongoing counseling program.

¶ 29 Shortly after he became aware of his inability fully to serve his clients respondent sought to correct certain deficiencies in the way his office was managed by closing out his private practice and joining an assemblage of practitioners who can assist him.

¶ 30 Respondent has been a member of the bar for over 19 years and his professional record reflects neither previous blemishes nor a pattern of misconduct. He has acknowledged and accepted responsibility for his professional derelictions. The record shows that respondent’s actions caused no grave economic harm. We note that respondent’s dealings with the Bar, albeit dilatory during the initial investigative stages, were characterized by candor and cooperation during the latter stages and in the PRT proceedings.

¶31 We have taken these matters into account in fashioning the appropriate measure of discipline.

Y

RESPONDENT’S MISCONDUCT WARRANTS A LICENSE SUSPENSION FOR THIRTY (30) DAYS TOGETHER WITH PAYMENT OF THE COSTS OF THIS PROCEEDING

¶32 A bar disciplinary process, including that for imposition of a disciplinary sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, of the judiciary, and of the legal profession. Neglect of a lawyer’s responsibilities compromises the independence of the profession and the public interest which that independence serves. A license to practice law is not conferred for the benefit of an individual, but for that of the public. The disciplinary measure imposed upon an offending lawyer should be consistent with the discipline imposed upon other practitioners for similar acts of professional misconduct ¶ 33 A lawyer’s failure to respond to the bar’s investigative inquiries is a serious offense. This court in State ex rel. Oklahoma Bar Association v. Robb imposed a suspension of two years and one day for a lawyer’s failure to respond to three client grievances or appear for depositions in response to subpoenas and for failure to respond to the disciplinary complaint.

¶ 34 The trial panel recommends a private reprimand as a fit discipline for respondent’s breach of professional ethics. After a review of the record and the court’s acceptance of the tendered mitigating factors, we hold that the appropriate disciplinary measure to be imposed is a thirty-day suspension of license to practice law. Today’s decision is based upon the cumulative effect of the following factors: (1) respondent’s utter failure promptly to respond to the bar’s investigative inquires, (2) his lack of concern for a client’s economic interest by refusal promptly to account for and restore the unearned portion of fees for nearly a three-year period and (3) his disreyard for a client’s right to know the status of her case. Although we take note that upon his own initiative respondent sought to determine if there was an underlying cause for his apathy and lost sense of career satisfaction and now seeks professional counseling on a continual basis, the standards to be followed are those that best protect the public and not those that shield the offending lawyer.

VI

SUMMARY

¶ 35 In sum, the record bears clear and convincing proof that respondent’s participation in several episodes of unprofessional conduct violates the rules governing professional ethics. After a thorough review of the record and recognition of the tendered mitigating factors,

RESPONDENT’S LICENSE TO PRACTICE LAW STANDS ORDERED SUSPENDED FOR THIRTY (30) DAYS AND HE IS DIRECTED TO PAY THE COSTS OF THE INVESTIGATION, RECORD AND PROCEEDING IN THE AMOUNT OF $571.03, WHICH SHALL BECOME DUE NOT LATER THAN THIRTY (30) DAYS AFTER THIS OPINION BECOMES FINAL.

¶ 36 HARGRAVE, C.J., KAUGER, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

¶ 37 WATT, V.C.J., HODGES and LAVENDER, JJ., concur in part and dissent in part.

LAVENDER, J., with whom WATT, V.C.J., and HODGES, J., join, concurring in part and dissenting in part.

¶ 11 would administer a public reprimand.

      . The record consists of a transcript of the PRT hearing, the PRT’s report, the parties' stipulations of fact, conclusions of law, factors to be considered in mitigation of charges, sixty-three (63) exhibits offered by the parties (including joint exhibits on professional burnout syndrome) and a joint brief of the parties in support of the report and recommendation of the PRT.

      . The provisions of RGDP Rule 6.1, 5 O.S.2001, Ch. 1, App. 1-A, state in pertinent part:
      "The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court.”

      . 5 O.S.2001, Ch. 1, App. 3-A.

      . For a discussion of professional burnout syndrome, see infra note 40.

      . State ex rel. Okla. Bar Ass’n v. Leigh, 1996 OK 37, ¶ 10, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 647-48; State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass’n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265-66.

      . Eakin, supra note 5, at ¶ 8, at 648; State ex rel. Okla. Bar Ass'n v. Downing, 1990 OK 102, ¶ 12, 804 P.2d 1120, 1122-23; Raskin, supra note 5, at ¶ 11, at 265-66.

      . Leigh, supra note 5, at 666-67; Eakin, supra note 5, at ¶ 8, at 647-48; State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, ¶ 8, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass’n v. Stubblefield, 1988 OK 141, ¶ 7, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass’n v. Brandon, 1969 OK 28, ¶ 5, 450 P.2d 824, 827. Because this court's cognizance of disciplinary proceedings cannot be shared with any other institution, every aspect of the Bar's adjudicative process must be revisited by our de novo consideration. The attribute of nondelegable jurisdiction serves to distinguish the conduct of bar disciplinary functions from trial de novo — a retrial in a different court — or even from de novo appellate review on the record, which stands for an independent, non-deferential examination of another tribunal's record.

      . Eakin, supra note 5, at ¶ 8, at 648; Raskin, supra note 5, at ¶ 11, at 265.

      . The court’s range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a), 5 O.S.1991, Ch. 1, App 1-A, which states: "The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate.” Eakin, supra note 5 at V 8, at 648; State ex rel. Okla. Bar Ass’n v. Farrant, 1994 OK 13, ¶ 7, 867 P.2d 1279, 1284; Bolton, supra note 5, at ¶ 15, at 344; Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983).

      . Eakin, supra note 5, at ¶ 9, at 648. A deficient record can never afford grounds for this court's abdication of its constitutional responsibility to conduct a meaningful de novo review. This court has declined to exercise jurisdiction by returning a case for a full-scale evidentiary hearing before the trial panel, see Lloyd, supra note 7, at 858 (for a complete explanation of the applicable procedure).

      . Eakin, supra note 5, at ¶ 9, at 648, Bolton, supra note 5, at ¶ 16 at 345.

      . Eakin, supra note 5, at ¶ 9, at 648; Bolton, supra note 5, at ¶ 16, at 345; State ex rel. Okla. Bar Ass’n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630.

      . State ex rel. Okla. Bar Ass’n v. Livshee, 1994 OK 12, ¶ 7, 870 P.2d 770, 774.

      . United States of America v. Perry A. McMinn, 97-CR-26 (United States District Court for the Northern District of Oklahoma).

      . Schraeder's main reason for not proceeding with the appeal is that he was waiting on information from McMinn's family about his genealogy (whether they had proof of his Native American heritage) to either materially assist a motion to dismiss the case from federal court for lack of jurisdiction over a criminal matter that allegedly occurred on Indian land or ask for re-sentencing to a term that would require McMinn's immediate release.

      . The critical terms of ORPC Rule 1.4, 5 O.S. 2001, Ch. 1, App. 3-A provide:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . The pertinent terms of ORPC Rule 1.5(a), 5 O.S.2001, Ch. 1, App. 3-A provide:
      (a) A lawyer's fee shall be reasonable. * * *

      . The pertinent terms of ORPC Rule 1.15(b), 5 O.S.2001, Ch.l, App. 3-A provide:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

      (emphasis added).

      . The terms of ORPC Rule 1.16(b)(2) and (d), 5 O.S.2001, Ch. 1, App. 3-A provide in part:
      (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

      (2) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and properly to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

      .The terms of ORPC Rule 8.4, 5 O.S.2001, Ch. 1, App. 3-A provide in pertinent part:
      It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; * * *

      . The pertinent terms of RGDP Rule 1.3, 5 O.S.2001, Ch. 1, App. 1-A provide:
      The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action....

      . "Professional competence — i.e., acting promptly in pending matters and communicating with a client — is a mandatory obligation imposed upon licensed practitioners. Albeit onerous, this obligation is the very minimum to be expected from a lawyer. It epitomizes professionalism. Anything less is a breach of a lawyer’s duty to serve the client.” State ex rel. Oklahoma Bar Ass'n v. Evans, 1994 OK 45, ¶ 16, 880 P.2d 333, 338-39 (citing Raskin, supra note 5 at 267) (emphasis in the original).

      . Id.

      . For the pertinent terms of ORPC Rule 1.4, see supra note 16.

      . For the pertinent terms of ORPC Rule 1.15(b) see supra note 18.

      . For the pertinent terms of ORPC Rule 8.4(a), see supra note 20.

      . For the terms of RGDP Rule 1.3, see supra note 21.

      . See the terms of RGDP Rule 5.2, infra note 32.

      .The terms of ORPC Rule 8.1(b) provide in pertinent part:
      An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

      (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority....

      . For the critical terms of ORPC Rule 8.4(a), see supra note 20.

      . For the pertinent terms of RGDP 1.3, see supra note 21.

      . The terms of RGDP Rule 5.2 (Investigations), 5 O.S.1981, Ch. 1, App. 1-A provide in pertinent part:
      After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall ... (2) file and serve a copy of the grievance ... upon the lawyer who shall thereafter make a written response which contains a full and fair disclosure of all facts and circumstances pertaining to the respondent lawyer’s alleged misconduct.... The failure of the lawyer to answer within twenty (20) days after service of the grievance ... shall be grounds for discipline. ...

      (emphasis added).

      . Id.

      . Id.

      . The relevant portion of ORPC Rule 8.1(b), 5 O.S.1991, Ch.l, App. 1-A provides in part:
      An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not ... (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

      . For the terms of ORPC Rule 8.4(a), see supra note 20.

      . See supra note 21 for the terms of ORPC Rule 1.3.

      . For the pertinent terms of RGDP Rule 5.2, see supra note 32.

      . See State ex rel. Okla. Bar Ass’n v. Colston, 1989 OK 74, 777 P.2d 920; see also Raskin, supra note 5 at 267.

      . Professional burnout syndrome has been used in bar disciplinary matters either as a defense or as a mitigating factor. See State ex rel. Okla. Bar Ass’n v. Wolfe, 1996 OK 75, 919 P.2d 427 (lawyer's license to practice law was suspended for two years and one day despite the use of burnout as a defense); In re Conduct of Loew, 292 Or. 806, 642 P.2d 1171 (1982) (a lawyer's license was suspended for thirty days despite the court’s recognition of burnout as mitigating factor for neglect of a legal matter and for misrepresentation to a client); In re Ontell, 593 A.2d 1038, 1042 (D.C.1991) (a lawyer's license was suspended for thirty days for two instances of neglect of legal matters coupled with misrepresentation to clients despite the court’s recognition of burnout as a mitigating factor). In Loew, supra, at 1173, the respondent’s psychiatrist described the condition as follows:
      "A number of things occur when somebody has reached this so[-]call[ed] bum out point. They feel fatigue all the time, they have difficulty sleeping, they feel drained, may have an array of physical ailments which occur which are quite real, maybe hospitalized as you were, have memory lapses, impaired concentration, frequently miss deadlines, backlog of work, financial problems, begin to view patients or clients or whatever people you're working with, or you begin to view your work as the enemy and 'Oh, my God, here comes another patient, another client,' and so on. Rather than someone who is a team member, it’s an opponent.”
      In Judith L. Maute, Balanced Lives in a Stressful Profession: an Impossible Dream?, 21 Cap. U.L.Rev. 797, 812 n. 54 (1992), the author observes that in many discipline cases evidence of burnout results in neglect, citing in footnote 54:

        In re Sullivan, 530 A.2d 1115 (Del.1987) (lawyer disbarred for pattern of serious misconduct; court rejected claim of mental incompetence); Colorado v. Heilbrunn, 814 P.2d 819 (Colo.1991) (repeated instances of neglect related to lawyer’s severe chronic depression which led to drug and alcohol abuse). A number of articles have been written on the subject. See, e.g., Michael J. Sweeney, Stress, Anxiety & Burnout, Practical Skills Seminar (1989); Thomas L. Cory, Stress: How it Affects Trial Lawyers and Their Clients, 24 TRIAL 54-57 (May 1988); Sarah B. Singer, Stress and the Sole Practitioner Hard Times for Lawyers, Boston B. J., Nov-Dec.1987 at 16; Stress Takes Heavy Toll on Profession ... [B. Leader-Sept. Oct.1990, at 19]; Marion R. Frank, How to Avoid Burnout, Penn. L.J. Rep., March 7, 1988, at § 2.
      In Charles J. Ogletree, Jr. Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L.Rev. 1239, 1241 n. 9 (1993), the author states:
      Burnout has been studied empirically in various contexts. See, e.g., Deborah L. Arron, Running from the Law: Why Good Lawyers Are Getting Out of the Legal Profession 2-3 (1989); Barry A. Farber, Crisis in Education. Stress and Burnout in the American Teacher 24 (1991) ("Burnout is a work related syndrome that stems from an individual’s perceptions of a significant discrepancy between effort (input) and reward (output).... It occurs most often in those who work face to face with troubled or needy clients ....” (emphasis omitted)); Paul Ligda, Work Overload and Defender Bum-out, 35 NLADA Briefcase 5, 5 (1977) (noting the effects of working environment on public defender performance)....

      . "When alcoholism is tendered as a mitigating factor there must be some causal relationship between one's alcoholic affliction and the professional misconduct charged." State ex rel. Okla. Bar Ass’n v. Giger, 2001 OK 96, ¶ 15, 37 P.3d 856, 863 n. 31 (quoting Donnelly, supra note 5, at ¶ 17, n. 21, at 548 n. 21).

      . Coppock v. State Bar, 44 Cal.3d 665, 244 Cal.Rptr. 462, 749 P.2d 1317 (1988) (citing Palomo v. State Bar, 36 Cal.3d 785, 205 Cal.Rptr. 834, 685 P.2d 1185 (1984)).

      . A lawyer’s good character, reputation and exemplary professional standing are factors to be considered in mitigation of charges. State ex rel. Okla. Bar Ass’n v. Steger, 1966 OK 188, 433 P.2d 225, 227.

      . State ex rel. Okla. Bar Ass’n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014, 1018.

      . See Preamble to the Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A.

      . Smith, supra note 44, at IF 21, at 1018; State ex rel. Okla. Bar Ass’n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361, 1363.

      . Eakin, supra note 5, at V 9, at 648; Bolton, supra note 5, at ¶ 16, at 345.

      . 1997 OK 84, 942 P.2d 196.


source: Caselaw Access Project

author: WINCHESTER, J.:

license: Public Domain

text:
    2002 OK 64
    In the Matter of REINSTATEMENT OF Paul R. ANDERSON, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. SCBD 4649.
    Supreme Court of Oklahoma.
    July 2, 2002.

      Mark A. Ashton, Ashton, Wisener & Mun-kaesy, PC, Lawton, OK, for Petitioner.
    Dan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, Respondent.
   WINCHESTER, J.:

¶ 1 The applicant, Paul R. Anderson, was stricken from membership in the Oklahoma Bar Association on June 11, 1996. He resigned pending disciplinary proceedings. He filed a petition for reinstatement on October 5, 2001. A hearing was held before the Trial Panel of the Professional Responsibility Tribunal (PRT) on December 6, 2001. In their report of February 7, 2002, the PRT recommended the applicant’s i-equest for reinstatement must be denied. We agree.

Burden of Proof, Factors Considered in Reinstatement Proceedings

¶2 The trial panel’s recommendations are entitled to great weight, but are merely advisory in nature. In attorney disciplinary matters, including reinstatements, this Court does not sit in review of the panel’s recommendations, but instead exercises original jurisdiction. Matter of Page, 1993 OK 165, ¶ 3, 866 P.2d 1207,1209.

¶ 3 The requirements for reinstatement are found in Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.1991, ch.l app. 1-A. Rule 11.4 provides that an applicant must establish affirmatively that the applicant’s conduct will conform to the high standards required of a member of the Bar. The burden is on the applicant to establish by clear and convincing evidence that the applicant has met the prerequisites for reinstatement. The traditional factors considered by the courts in reinstatement cases include:

(1) the present moral fitness of the applicant,
(2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession,
(3) the extent of the applicant’s rehabilitation,
(4) the seriousness of the original misconduct,
(5) the conduct subsequent to discipline,
(6) the time that has elapsed since the original discipline,
(7) the applicant’s character, maturity, and experience at the time of discipline, and
(8) the applicant’s present competence in legal skills. Matter of Reinstatement of Kamins, 1988 OK 32, ¶ 20, 752 P.2d 1125, 1130, citing State v. Russo, 230 Kan. 5, 630 P.2d 711, 714 (1981).

¶ 4 Several eases, including the Matter of Reinstatement of Wright, 1995 OK 128, 907 P.2d 1060, the Matter of Reinstatement of Kirk, 1990 OK 122, 804 P.2d 443 and Matter of Reinstatement of Cook, 1989 OK 64, 772 P.2d 918 establish that a felony conviction is not tantamount to a death sentence regarding the reinstatement of the license to practice law. Rather, each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.

Evidence Concerning Reinstatement Determination

¶ 5 Paul R. Anderson was admitted to the Oklahoma Bar Association on April 1, 1969. The petitioner served as a member of the Judge Advocates Generals Corps of the United States Air Force from 1969 until 1972 when he began working as an assistant district attorney in Payne County. From 1974 until 1983, petitioner operated a private law practice in Stillwater. From all accounts, this was a flourishing practice which provided the petitioner with a lucrative income. In 1983, the petitioner was appointed as District Attorney for the 9th Judicial District (Payne and Logan counties). He served in that position until his resignation in April 1996.

¶ 6 During his tenure as District Attorney, the petitioner served as President of the National Organization for Victim’s Assistance, chairperson of the Governor’s Violent Crime and Drug Policy Board and as a board member of the National District Attorneys Association, as well as holding several other high-profile positions, on both the state and national level. The petitioner assisted in implementing one of the first drug courts in the nation and made significant contributions to the administration of justice in Oklahoma. By all accounts, the petitioner was highly respected by both the public and the legal profession prior to April 1996.

¶ 7 In April 1996, the State Auditor and Inspector conducted an investigative audit of the Payne County District Attorney’s office. When Clifton Scott, State Auditor, served Anderson with a subpoena, the petitioner quickly admitted his wrongdoing and assisted the State Auditor and Attorney General’s office in uncovering evidence of the money that had been misappropriated. Over a five-year-period, the petitioner embezzled $84,000.00 from the District Attorney’s office. The petitioner issued press releases taking full responsibility for his actions. He entered a blind plea to all three counts and was sentenced to serve two years in the custody of the Department of Corrections and to pay full restitution of the monies taken from the District Attorney checking accounts.

¶ 8 The petitioner was incarcerated on December 30, 1996, and released on September 9, 1997, after having completed all of his sentence once Department of Correction credits were taken into consideration. Petitioner paid the ordered restitution by July 1998. These actions satisfied the criminal aspect of the petitioner’s misconduct and while reinstatement could certainly not be considered without their completion, many other factors must also be considered.

¶ 9 In the interim period of time between his resignation as district attorney and incarceration, the petitioner was employed digging ditches in Stillwater. After release from prison, he took employment with the Sunnybrook Christian Church in Stillwater. It appears this position began as an “assistant” (running errands and assisting the pastor) and grew over the years into a true “associate pastor” position. The petitioner has been ordained, delivers sermons, teaches classes and ministers to the congregation. To remain in the community where he was so well known illustrates an acceptance of responsibility on the part of the petitioner and also demonstrates a great deal of courage.

¶ 10 Many attorneys who are without a license find employment as a paralegal or in other capacities at law offices. In his testimony, the petitioner stated that working in that capacity would give too much opportunity “to cross the line.” He, and several witnesses, stated that when someone asks the petitioner for legal advice, he is very quick to tell them he cannot assist them.

f 11 We now turn to the eight previously mentioned factors considered when a petitioner applies for reinstatement.

¶ 12 First, we consider present moral fitness of the petitioner.

¶ 13 The petitioner had several very credible, high profile witnesses testify on his behalf. In particular, Richard Wintory, who prosecuted the petitioner, testified that he should be reinstated.

¶ 14 Additionally, 137 letters were submitted on the petitioner’s behalf from various individuals in Stillwater and from around the state. While on its face this may seem very convincing evidence that the petitioner “possesses the moral and ethical values” required by the Bar Association (a phrase often repeated in the 137 letters), this evidence is not persuasive. Surely those who elected- the petitioner, served with him on various committees and worked closely with him for the five years he was embezzling funds were convinced of his high moral and ethical values as well.

¶ 15 The second factor concerns the demonstrated consciousness of the wrongful conduct and disrepute the conduct brought the profession.

¶ 16 The petitioner has demonstrated numerous times that he realizes he made a serious mistake. Initially following the investigation, he made public statements taking responsibility for his actions. Additionally, he has delivered several sermons discussing the temptation of materialism, his remorse and the consequences of his actions.

¶ 17 The disrepute the conduct brought the profession is more difficult to measure. The petitioner’s involvement in state and national organizations increased his reputation, making him more well-known than many district attorneys in the state. This reputation increased the disrepute brought to the profession and undermined the public’s confidence in the justice system.

¶ 18 Third, we must consider the extent of the applicant’s rehabilitation.

¶ 19 By all accounts, the petitioner has been completely rehabilitated. In the years since his resignation, he has learned to live on a modest salary. Many witnesses testified that the petitioner is now a humbler man who is grateful for that which he does have.

¶ 20 The fourth consideration is the seriousness of the original misconduct, a heavy burden indeed in this case. While it is true that the petitioner has made full restitution of the money he took, the bankruptcy of public trust can never be repaid. One of the three letters in opposition to reinstatement came from Charles Rogers, an assistant district attorney in Payne county who worked there when charges were filed against the petitioner. Rogers wrote, “the residual impact of Paul’s crimes upon the Office was great for some time and comes up even today.” He goes on to explain how questions surrounding the case moved from “how we felt about our former boss being a thief’ to “whether we believed his sentence was just” to the present, “whether we believe that a person who committed such crimes should be permitted to practice law.” He ends this section of his letter with the following observation: “It’s hard to heal wounds that are continually being reopened.”

¶ 21 We must also consider the petitioner’s conduct subsequent to discipline. By all accounts, the petitioner’s conduct has been exemplary since his resignation as district attorney.

¶22 The time elapsed since the original discipline is another factor to consider. Almost six years have passed since the petitioner resigned pending disciplinary proceedings. Four and a half years have passed since he was released from prison. Petitioner’s probation ended the same month that he filed for reinstatement.

¶ 23 Another factor to be weighed is the petitioner’s character, maturity and experience at the time of discipline. Since the petitioner was several years out of law school and had practiced for a significant amount of time when the embezzlement took place, this hardly seems a mitigating factor in this case.

¶ 24 Finally, we must consider the petitioner’s present competence in legal skills. The Bar Association stipulated that the petitioner has attended the required number of continuing legal education classes since his resignation and that he possesses the competency and learning in the law necessary for admission. They also stipulated that he has not engaged in any unauthorized practice of law since his resignation. We accept the stipulations in these areas.

Decision

¶ 25 When weighing the previously mentioned factors, three in particular seem to weigh against the defendant: the seriousness of the original misconduct, the disrepute the conduct has brought to the profession and finally, the amount of time elapsed since the original misconduct.

¶ 26 We have discussed the seriousness of the original misconduct and its effect on the Payne County District Attorney’s office. Let us now turn to the effect misconduct of public officials has on the public at large. State Auditor Clifton Scott aptly expressed the devastating effect in his testimony before the PRT. He stated that when a public official violates the public trust it casts a negative light on all government employees, “that all public officials are corrupt in some manner. I think that’s a general opinion of the public at large.”

¶27 The petitioner’s misconduct brought disrepute not only on himself, but on all attorneys and further on all public officials. We know the petitioner understands this from his own testimony.

¶ 28 While the petitioner has shown exceptional capabilities in rebuilding his life after making a devastating mistake, and we commend him for that, we cannot grant the petitioner’s request for reinstatement at this time. It is true that the requisite five years since resignation pending disciplinary proceedings has expired, but very little time has passed since the petitioner was released from probation. We find that an inadequate amount of time has elapsed since the original misconduct.

¶ 29 The Bar Association has filed an application to assess costs in the amount of $1,618.14 for this proceeding. That application is granted, and the applicant shall pay costs in the amount of $1,613.14 to the Oklahoma Bar Association within sixty days of the date of this opinion. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 16, 919 P.2d at 421.

PETITION FOR REINSTATEMENT IS DENIED.

ALL JUSTICES CONCUR.


author: HODGES, J. BOUDREAU, J., OPALA, J.,

text:
    2002 OK 61
    SATELLITE SYSTEM, INC., Plaintiffs/Appellee, v. BIRCH TELECOM OF OKLAHOMA, INC., Defendant/Appellant.
    No. 96,806.
    Supreme Court of Oklahoma.
    July 2, 2002.

      Michael Bickford, Fuller, Tubb, Pomeroy & Stokes, Oklahoma City, Oklahoma, Patrick J. Whalen, Spencer Fane Britt & Browne LLP, Kansas City, Missouri, for Appellant.
    Terry J. Garrett, Kelly J. Walker, Garrett & Walker, LLP, Norman, Oklahoma, for the Appellee.
    Nicole A. King, Cece L. Coleman, Assistant Attorneys General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the Amicus Curiae, the State of Oklahoma.
    William R. Burkett, Rachel Lawrence, Andrea P. Johnson, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for the Amicus Curiae, the Oklahoma Corporation Commission.
   HODGES, J.

I. ISSUE

¶ 1 This matter is before this Court for review of a certified interlocutory order. The issues are: (1) whether Oklahoma has adopted a state filed tariff doctrine, also know as a filed rate doctrine, which would bar actions against a public utility that has filed tariffs with the Oklahoma Corporation Commission (Commission), and (2) whether the limitation-of-liability provision approved as part of the defendant’s tariff acts to limit the defendant’s liability for fraudulent acts to a prorated refund for the service. We find that the plaintiffs fraud claim is not barred by the filed tariff doctrine nor are the plaintiffs damages limited by the tariffs limitation-of-liability provision.

II. FACTS

¶ 2 The alleged facts are as follows. The plaintiff, Satellite Systems, Inc. (SSI), is an Oklahoma corporation which uses telemarketing to sell its satellite systems mostly to customers in rural areas. It uses long distance calling in its telemarketing program. Initially, SSI had “local plus” service with Southwestern Bell Communications (SBC). Local plus service allowed SSI to make intrastate long distance calls for a flat monthly fee rather than on a cost-per-minute basis.

¶ 3 In April of 2001, representatives of Birch Telecom of Oklahoma, Inc. (Birch), an intrastate telecommunications carrier, contacted SSI and induced it to switch its telephone service to Birch. Birch represented that it could provide local plus service to SSI. After SSI changed its phone service to Birch, SSI immediately encountered problems when attempting to use local plus service. Thereafter, Birch informed SSI that it could not provide local plus service. SSI asserts in its brief that when it attempted to revert to SBC, Birch refused to allow SBC access to the telephone lines. SSI alleges that it was damaged by Birch’s fraudulent conduct.

¶4 SSI filed a petition claiming damages for breach of contract and for fraud. The district court dismissed the breach of contract claim but refused to dismiss the fraud claim. The district court certified the order for immediate review. This Court granted the petition for certiorari. At this Court’s invitation, the Commission and the Attorney General of Oklahoma both filed briefs as amicus curiae.

III.FEDERAL FILED TARIFF DOCTRINE

¶ 5 Birch argues that both the contract claim and the fraud claim should have been dismissed because they were barred under the filed tariff doctrine or, in the alternative, under its tariffs limitation-of-liability provision. First recognized in Keogh v. Chicago & Northwestern Railway, the federal filed tariff doctrine bars claims involving rates and services, including state fraud claims, when the defendant has filed its tariff with a federal agency. The federal filed tariff doctrine is an affirmative defense which recognizes a federal agency’s authority to set reasonable rates. The doctrine serves two purposes: (1) to prevent rate discrimination among customers, and (2) to preserve an agency’s authority to set reasonable rates for utilities. The federal doctrine has been criticized as no longer serving its original purpose. It is under attack particularly with the current trend toward deregulation and competitive markets.

IV.STATE FILED TARIFF DOCTRINE

¶ 6 Because Birch is an intrastate telecommunications company required to file its tariffs with the Commission, the federal filed tariff doctrine is not controlling in this appeal. Even so Oklahoma adheres to the same policies underlying the federal filed tariff doctrine: to prevent discriminatory rates and to vest an agency with authority to set reasonable rates. Section 165:55-5-1 of the Commission’s rules applies these statutory policy declarations and embodies a filed tariff doctrine by forbidding “deviation from the filed tariff ... without order of the Commission” and by providing “[the] filed tariff [is] binding upon the telecommunications service provider and the end-user as to the rates and charges for service and the terms and conditions of service.”

¶7 Although we agree that these provisions reflect a policy supporting a state filed tariff doctrine, other policies undermine a comprehensive doctrine which would bar a state claim for common law fraud. Title 12, section 2 of the Oklahoma Statutes provides: “The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma_” Thus, “[t]he common law remains in force in this state, unless a statute explicitly provides to the contrary.” A legislative intention to abolish a common law right must be clearly and plainly expressed. A presumption favors the preservation of common-law rights. The Oklahoma legislature has not expressed an intent, either explicitly or implicitly, that the policies supporting a state rate tariff doctrine were intended to abolish a common law fraud claim. Even if a state filed tariff doctrine has been adopted in Oklahoma, it does not bar a common law fraud claim. This pronouncement is in accord with the amicus curiae briefs of the Commission and Oklahoma’s Attorney General which advocate a limited state filed tariff rule which would not bar a common law fraud claim.

V. .TARIFF’S LIMITATION-OF-LIABILITY PROVISION

¶ 8 Birch attempts to utilize the limitation-of-liability provision to shield it from potential liability for the alleged fraudulent conduct. We do not agree that the limitation-of-liability provision filed as part of Birch’s tariff protects Birch from liability for fraudulent conduct. The tariff provides:

The liability of [Birch] for any claim or loss, expense or damage,-due to any interruption, delay, error, omission, or defect in any service, facility, or transmission provided under this Tariff or any service order shall not exceed the amount of the credit allowance described in Section 2.6 herein. The extension of credit allowances as described in Section 2.6 shall be the sole remedy of Customer and sole liability of the Company for any interruption, delay, error, omission, or defect in any service, facility, or transmission provided under this Tariff or any service order. In no event will [Birch] be liable for any direct, indirect, consequential, incidental, exemplary, punitive, or special damages, or for any lost business, goodwill, income or profits, even if advised of the possibility of the same.

This tariff is consistent with the Commission general rule which limits liability to a prorated refund for service interruptions lasting more than 24 hours and within the control of the telecommunications service provider.

¶ 9 Even though the limitation-of-liability provision does not explicitly address fraudulent conduct, the tariff limits the damages for which Birch may be liable. This provision purports to limit damages for the alleged fraudulent conduct to a credit allowance. As with all enforceable tariffs, this tariff was approved by the Commission. Because the local plus service was not a part of Birch’s tariff, there was not a Commission approved rate for this service which could be prorated.

¶ 10 The Commission is vested with authority to guard the public’s interest with regard to utility rates. Commission rules, including tariffs, adopted pursuant to this grant of authority are legislative rules limited by the grant of authority. Further, the tariff must be issued under the proper procedure and must be reasonable. If these three requirements are met, the legislative rule, including a tariff, will have the force and effect of law. Otherwise, the rule is not binding upon a court.

¶ 11 Oklahoma has a strong legislative public policy against contracts which attempt “to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another.” Although this Court had not previously applied this policy against regulatory attempts to limit liability for fraudulent conduct, it was addressed in Wheeler Stuckey, Inc. v. Southwestern Bell Tel. Co. Applying Oklahoma law, the court in Wheeler Stuckey stated:

“[T]he telephone company may, by contractual stipulation, or by general exchange tariff, rules and regulations applying to all customer’s contracts, which are on file and approved by the Oklahoma Corporation Commission limit the amount of its liability for injuries resulting from omissions and mistakes ... so long as it does not seek immunity from gross negligence or willful misconduct.” If gross negligence and willful misconduct are not shielded by a provision limiting liability, it follows fraudulent conduct would not be shielded either.

¶ 12 Based on Oklahoma’s public policy as stated in section 212 of title 15, attempts to limit liability for fraud either by tariff or by contract are unreasonable. Because Birch’s tariff attempted to limit its liability for fraud, it was unreasonable, does not have the force of law, and is not binding.

¶ 13 This holding is consistent with the majority of jurisdictions applying state law. Although divided, courts have generally upheld tariff liability limitations for ordinary negligence within a regulatory agency’s authority to adopt reasonable rates for regulated services. However, Courts overwhelmingly reject attempts to limit liability either by contract or by tariff for gross negligence, willful misconduct, and fraud.

¶ 14 As discussed in Waters v. Pacific Telephone Company, the premise behind judicial recognition of the validity of limitation-of-liability provisions is that public utilities are strictly regulated and the limits on liability are part of the regulating body’s analysis when establishing reasonable rates. Recognition of technology has also been a consideration in the analysis of whether a tariff limiting liability is reasonable. The Court in Wilkinson v. New England Telephone & Telegraph Co. stated that “because of the complexities and intricacies of the modern telephone system in which” mechanical devices have substantially replaced the personal element, a provision limiting liability is not unreasonable. The court continued that a public utility should not be held liable for all possible failures. The rationale justifying liability limits for ordinary negligence simply do not support liability limits for fraudulent conduct.

VI. SSI’S FAILURE TO ADDRESS LIMITATION-OF-LIABILITY PROVISION IN TRIAL COURT

¶ 15 Birch asserts that SSI should not be allowed to address the issue of whether the tariff itself limits liability because SSI did not address the issue in its response to the motion to dismiss. We note that the cases cited by Birch in support of this assertion do not involve motions to dismiss. Because Birch argued the tariffs limiting liability in its brief in chief, SSI was entitled to address the issue in its response brief. Further, a motion to dismiss for failure to state a claim must be denied unless the moving party shows that without a doubt the plaintiff can prove no set of facts in support of the claim for relief. In the trial court, the burden was on Birch to show that there were no set of facts which would support SSI’s fraud claim. Because Birch did not meet its burden in the trial court, the motion to dismiss was properly denied.

VII. CONCLUSION

¶ 16 The trial court properly dismissed SSI’s rate-based contract claim based on the filed tariff doctrine and properly denied the motion to dismiss as to the fraud claim. The trial court is affirmed, and the cause remanded for further proceedings.

CERTIFIED INTERLOCUTORY ORDER AFFIRMED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

¶ 17 HARGRAVE, C.J., WATT, V.C.J., LAVENDER, OPALA (by separate writing), KAUGER, SUMMERS, WINCHESTER, JJ., concur.

¶ 18 BOUDREAU, J., concur in result (by separate writing).

BOUDREAU, J.,

concurring in result:

¶ 1 I concur in the result reached by the majority opinion. I write separately only because I would expressly adopt the filed tariff doctrine (also known as the filed rate doctrine) in Oklahoma and then recognize the fraud exception to the doctrine.

If 2 Satellite Systems, Inc. (SSI) sued Birch Telecom of Oklahoma, Inc. (Birch). SSI asserted two theories of liability, breach of contract and fraudulent inducement. Birch moved to dismiss both theories on the ground that both are precluded by the filed tariff doctrine. The trial court agreed that the breach of contract theory is precluded by the filed tariff doctrine but allowed the fraud theory to go forward.

¶ 3 The trial court certified for appeal its interlocutory order denying Birch’s motion to dismiss the fraud theory. The majority opinion affirms the trial court, holding that “even if a state filed rate doctrine has been adopted in Oklahoma, it does not bar a common law fraud claim.”'

¶4 The majority opinion neither adopts nor rejects the filed tariff doctrine. Rather, it creates an exception to a doctrine it has not adopted. Without this court explicitly adopting the doctrine, the question of whether to create an exception to the doctrine is purely hypothetical.

¶ 5 It has long been the rule that we do not give advisory opinions or answer hypothetical questions. Dank v. Benson, 2000 OK 40, 5 P.3d 1088, 1091; Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 61; Application of Fun Country Development Authority, 1977 OK 138, 566 P.2d 1167; City of Shawnee v. Taylor, 1943 OK 11, 132 P.2d 950; Shinn v. Oklahoma City, 1939 OK 29, 87 P.2d 136 (1939). For this reason, I would expressly adopt the filed tariff doctrine and then recognize the fraud exception to the doctrine.

OPALA, J.,

concurring in the court’s opinion.

¶ 1 The qualifiedly concurring justice invites the court, once again, to expand its inquiry beyond the issues necessary to decide. Mindful as I am of the time-honored principle that appellate courts may not extend their pronouncements beyond the strict framework of matters that must be resolved, I join the court in declining his tempting offer. Myers v. Lashley, 2002 OK 14, 44 P.3d 553, 561. See Patterson v. Beall, 2000 OK 92, 19 P.3d 839, 849-50 (Opala, J., dissenting), for my warning against “hyper-global” pronouncements.

      . 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922).

      . Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 20 (2nd Cir.1994).

      . Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981).

      . Wegoland, 27 F.3d at 19.

      . Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347 (2nd Cir.1985), aff'g 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986).

      . Rendí L. Mann-Stadt, Note, Limitation of Liability for Interruption of Service for Regulated Telephone Companies: An Outmoded Protection?, 1993 U. Ill. L.Rev. 629.

      . Okla. Stat. tit. 17, § 139.103 (2002); see Pink Dot, Inc. v. Teleport Communications Group, 89 Cal.App.4th 407, 107 Cal.Rptr.2d 392, 398 (2001).

      . Okla. Stat. tit. 17, §§ 139.102(24), 139.103 (2001); Okla. Admin. Code § 165:55-5-1; 47 U.S.C. § 203.

      . Okla. Admin. Code 165:55-5-1.

      . Wagoner v. Bennett, 1991 OK 70, 814 P.2d 476.

      . Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶ 5, 873 P.2d 983, 987; Hull v. Sun Refining and Marketing Co., 1989 OK 168, 789 P.2d 1272.

      . Wright, 1994 OK 37 at 115, 873 P.¿d at 987.

      . Okla. Admin. Code 165:55-9-6.

      . Okla. Const. Art. 9, § 18; Okla. Stat. tit. 17, § 152 (2002); Public Service Co. v. State ex rel. Corp. Comm’n, 1997 OK 145, ¶ 10, 948 P.2d 713, 717.

      . Okla. Const, art. 9, § 18; Okla. Stat. tit. 17, § 152 (2002); Public Service Co., 1997 OK 145 at ¶ 10, 948 P.2d at 717; 1 Kenneth Culp Davis, Administrative Law Treatise § 5.03 at 299 (1st ed.1958) (hereinafter K.C. Davis); 1 Kenneth Culp Davis, Administrative Law Treatise § 6.3 at 233-34 (3rd ed.1994).

      . Henry v. Corporation Comm’n, 1990 OK 103, ¶3 n. 10, 825 P.2d 1262, 1270 n. 10 (Opala, J„ concurring specially); K.C. Davis, supra, § 5.03 at 299.

      . Henry, 1990 OK 103 at ¶ 3 n. 10, 825 P.2d at 1270 n. 10; K.C. Davis, supra, § 5.03 at 299.

      . SeeHenry, 1990 OK 103 at ¶3 n. 10, 825 P.2d at 1270 n. 10; K.C. Davis, supra, § 5.03 at 299.

      . Okla. Stat. tít 15, § 212 (2002).

      . 279 F.Supp. 712 (W.D.Okla.1967).

      . Id. at 714.

      . See Henry, 1990 OK 103 at ¶ 13 n. 10, 825 P.2d at 1270 n. 10; K.C. Davis, supra, § 5.03 at 299.

      . Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 825 P.2d 588, 590 (Nev.1992); Kunin, Unilateral Tariff Exculpation in the Era of Competitive Telecommunications, 41 Cath U.L.R. 907, 915—16 n. 45 (1922).

      . Holman v. Southwestern Bell Tel. Co., 358 F.Supp. 727, 728 (D.C.Kan.1973); Robinson Ins. & Real Estate v. Southwestern Bell Tel. Co., 366 F.Supp. 307, 311 (W.D.Ark.1973); Wheeler Stuckey Inc. v. Southwestern Bell Tel. Co., 279 F.Supp. 712, 714-15 (W.D.Okla.1967); Sommer v. Mountain States Tel. & Tel. Co., 21 Ariz.App. 385, 519 P.2d 874, 876 (1974); Pink Dot, 107 Cal.Rptr.2d at 398; Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga.App. 798, 204 S.E.2d 457 (Ga.Ct.App.1974); Burdick v. Southwestern Bell Tel. Co., 9 Kan.App.2d 182, 675 P.2d 922, 925 (1984); Danisco Ingredients United States, Inc. v. Kansas City Power & Light Co., 999 S.W.2d 326, 331-32 (Mo.Ct.App.1999) (applying Kansas law); Bulbman, 825 P.2d at 590; Garrison v. Pacific Northwest Bell, 45 Or.App. 523, 608 P.2d 1206, 1211 (1980); Tate v. Mountain States Tel. and Tel. Co., 647 P.2d 58, 60 (Wyo.1982); 74 Am.Jur.2d Telecommunications § 50 (2001); Tedson J. Meyers, Liability Limitations in International Data Traffic: The Consequences of Deregulation, 16 Case W. Res. J. Int'l L. 203, 215 (1984). None of the cases on which Birch relies deal with fraudulent conduct: all address ordinary negligence. See Bellsouth Telecommunications, Inc. v. Kerrigan, 55 F.Supp.2d 1314, 1319 (N.D.Fla.1999); Danisco Ingredients United States, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 986 P.2d 377, 385 (1999); Houston Lighting & Power Co. v. Auchan United States, 995 S.W.2d 668, 671-72 (Tex.1999); Warner v. Southwestern Bell Tel. Co., 428 S.W.2d 596 (Mo.1968).

      . 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161, 1164(1974).

      . Wilkinson v. New England Tel. & Tel. Co., 327 Mass. 132, 97 N.E.2d 413, 416 (1951).

      . Id.

      . Id.

      . Mothershed v. Mothershed, 1985 OK 23, 701 P.2d 405; Stillwater Industrial Foundation, Inc. v. State Bd. of Regents of Okla. Ag. and Mechanical Colleges, 1975 OK 127, 541 P.2d 173; Frey v. Independence Fire and Casualty Co., 1985 OK 25, 698 P.2d 17.

      . Patel v. OMH Medical Ctr., Inc., 1999 OK 33, ¶ 43 n. 62, 987 P.2d 1185, 1202 n. 62.


author: LARRY JOPLIN, Vice-Chief Judge:

text:
    2002 OK CIV APP 70
    Jeremy R. CHASTAIN, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
    No. 96,246.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    May 31, 2002.

      Kenneth Linn, Oklahoma City, OK, for Appellant.
    Joel W. Barr, Norman, OK, for Appellee.
   Opinion by

LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Defendant/Appellant State of Oklahoma, ex rel. Department of Public Safety (State or DPS) seeks review of the trial court’s order setting aside DPS’ revocation of the driver’s license of Plaintiff/Appellee Jeremy R. Chastain (Chastain) for lack of the arresting officer’s jurisdictional authority. Having reviewed the record, however, we hold the order of the trial court should be affirmed.

¶ 2 A University of Oklahoma police officer arrested Chastain for operation of a motor vehicle while under the influence of an intoxicating substance, and Chastain refused to submit to breath or blood testing. DPS consequently revoked Chastain’s driver’s license.

¶ 3 Chastain subsequently challenged the revocation for lack of a valid arrest within the geographical jurisdiction of the OU police officer. An administrative hearing officer sustained the revocation.

¶ 4 Chastain then commenced the instant action for review of the revocation by the trial court. At hearing, the parties stipulated that neither the offense nor the arrest occurred on the OU campus, or on a public way immediately adjacent thereto. State nevertheless asserted validity of Chastain’s arrest pursuant to a statutorily authorized “Law Enforcement Services Agreement” (Agreement) negotiated by and between the City of Norman and the OU Board of Regents in 1993, which, as amended by a joint memorandum of the OU and Norman Chiefs of Police in 2000, granted OU police officers jurisdiction to “initiate traffic enforcement actions upon public thoroughfares at any location within the incorporated limits of the City of Norman in response to observed violations of municipal ordinances or state law.”

¶ 5 On consideration of the stipulations and argument of counsel, the trial court set aside the revocation, “holding that 74 O.S. § 360.17 combined with the law enforcement services agreement of ... 1993 and the [subsequent] memorandum agreement ... is insufficient to grant the campus police jurisdiction to generally enforce Norman municipal ordinances.” State appeals, arguing the joint memo agreement of the Chiefs of Police was a statutorily permitted alteration of the OU Police Department’s (OUPD) jurisdiction to include the area of Chastain’s arrest.

¶ 6 On this issue, Oklahoma statute provides:

Jurisdiction of campus police officers — Authority of campus police departments
The jurisdiction of campus police officers includes the campus and pursuant to an agreement authorized by this act, the highways, streets, roads, alleys, easements, and other public ways immediately adjacent to their campus and any other areas authorized by such agreement. This delineation of jurisdiction, however, shall not be understood as limiting the completion of any necessary enforcement activities which began within these jurisdictions and are in compliance with the agreements made with the municipality or county sheriff pursuant to this act. In the absence of an agreement, only those law enforcement activities which began on campus may be completed off campus and such activities must be completed in a timely manner. Such law enforcement activities shall only be authorized if the campus police have coordinated the activities with the local law enforcement agency having jurisdiction in that off campus area. In addition, a campus police officer shall have jurisdiction in other locations pursuant to an agreement authorized by this act. Such agreement may authorize the chief administrative officer of the law enforcement agency to request assistance pursuant to the agreement. Campus police officers, commissioned pursuant to this act, shall have the same powers, liabilities, and immunities as sheriffs or police officers within their jurisdiction.

74 O.S. § 360.17(A). (Emphasis added.)

¶ 7 In 1993, the OU Board of Regents and the City of Norman entered the Agreement, as contemplated by § 360.17. The Agreement in relevant part provides:

1. The Police Division of the University of Oklahoma Department of Public Safety, hereinafter referred to as “OUPD,” and its duly commissioned and certified police officers have the authority to enforce criminal statutes, Norman municipal ordinances, and University rules and regulations on all property, including streets, highways, roads, alleys, easements and other public ways or public property, including streets, highways, and alleys that is surrounded by or predominantly surrounded by Board owned, leased or rented property.
2. The OUPD and its duly commissioned and certified police officers shall have the authority to enforce criminal statutes and Norman municipal ordinances on all property, including streets, highways, roads, alleys, easements, and other public ways or public areas adjacent to property owned, leased, or rented by the Board, and adjacent to property, including streets, highways, roads, alleys, easements and other public ways and areas surrounded or predominantly surrounded by Board oimed, leased or rented property.
11. The parties to this Agreement understand that as time passes, situations change and property ownership and occupancy varies. Parties therefore agree that the Chief Executive Officers of the respective law enforcement agencies are authorized, by the use of joint written memoranda and/or joint written mutual aid agreements and maps, to delineate the responsibilities of each respective department and the geographical boundaries thereof in accordance with the terms of this Agreement.

(Emphasis added.)

¶ 8 On February 8, 2000, in stated compliance with paragraph 11 of the Agreement, the OU and Norman Chiefs of Police executed and published a joint memorandum “to delineate the responsibilities of each department and the geographical boundaries thereof.” That memo provided in pertinent part:

4. Certified commissioned personnel of the University of Oklahoma, Norman Campus, Police Department may, whenever on duty in suitably equipped vehicles, initiate traffic enforcement actions upon public thoroughfares at any location within the incorporated limits of the City of Norman in response to observed violations of municipal ordinances or state law.
5. Certified commissioned personnel of the City of Norman Police Department may, whenever on duty in suitably equipped vehicles, initiate traffic enforcement actions upon public thoroughfares at any location upon property of the University of Oklahoma within or without the incorporated limits of the City of Norman in response to observed violations of municipal ordinances or state law.

¶ 9 As a matter of statutory construction, we are bound to “ascertain and follow the intent of the Legislature.” Bruner v. Sobel, 1998 OK 60, ¶ 9, 961 P.2d 815, 817. And, the plain language of an enactment governs its construction: “[Wjhere the Legislature has clearly expressed its intent, the use of additional rules of construction are unnecessary and a statute will be applied as written.” Id.

¶ 10 So guided, we are convinced that by § 360.17, the Legislature plainly expressed its intent to permit the negotiation of an agreement between a city and university delineating the jurisdictional boundaries of their respective law enforcement agencies. Indeed, the Oklahoma Court of Criminal Appeals construed the very agreement before us as not unconstitutionally vague in the delineation of jurisdiction, and approved an arrest by an OU police officer on property not adjacent to the OU campus where the offense occurred within the primary jurisdiction of OUPD as described by the 1993 Agreement. State v. Ockershauser, 1996 OK CR 42, ¶¶ 10, 11, 924 P.2d 775, 777.

¶ 11 We are likewise convinced that the plain language of § 370.17 permits a city and university to expand the law enforcement jurisdiction of a campus police department beyond the “highways, streets, roads, alleys, easements, and other public ways immediately adjacent to [the] campus” to include “any other areas” as the city and the university might agree. The Agreement in the present case validly and clearly expanded the jurisdiction of OUPD to public ways immediately “adjacent” to the OU campus, as well as “areas surrounded or predominantly surrounded by Board owned, leased or rented property.” To the extent the trial court’s remarks from the bench or the trial court’s order may be read to suggest the city and university could not or did not so validly agree in 1993, the trial court erred.

¶ 12 The question remains, however, whether the Agreement delegated to the Norman and OU Chiefs of Police the authority, by joint memorandum, to expand the jurisdiction of OUPD, or only to delineate the jurisdictional boundaries previously agreed upon by the City of Norman and the OU Board of Regents.

¶ 13 We hold the plain language of paragraph eleven of the Agreement between Norman and OU only grants authority to the OU and Norman Police Chiefs to delineate, by joint memorandum, the jurisdiction of the OU police department when “as time passes, situations change and property ownership and occupancy varies,” “in accordance with the terms of this agreement.” (Emphasis added.) So, where the ownership or occupancy of property within the jurisdiction of either the Norman Police Department or OUPD changes, the Agreement clearly permits the Norman and OU Chiefs of Police to redraw, by joint memorandum, the geographical boundaries of jurisdiction, but only in adjustment for the change in ownership or occupancy.

¶ 14 However, we read nothing in the Agreement as delegating to the Norman and OU Chiefs of Police the authority to affect, by joint memorandum, the global expansion of OUPD jurisdiction to include anywhere within the corporate limits of the City of Norman. To construe paragraph 11 of the Agreement absent the geographical limitations of paragraphs 1 and 2 ignores the Agreement’s plain language. Further, such a construction would place the Chiefs of Police in the position of renegotiating the jurisdictional limits imposed on the campus police by both the statute and the Agreement’s terms without the consent of either the city or university governing authorities. Neither the Legislature, nor the governing authorities of Norman and OU as the parties to the Agreement, intended such a result, or they surely would have so specifically expressed.

¶ 15 In the present case, the parties stipulated that neither the offense nor the arrest occurred either on the OU campus, or on a public way immediately adjacent to the OU campus. Neither of the parties even suggest either an emergency situation, or a change in the ownership or occupancy of OU property as to justify the city-wide expansion of OUPD jurisdiction by joint memo.

¶ 16 While we have previously approved the Agreement as effective to delineate and expand the law enforcement jurisdiction of OUPD as including areas adjacent to, surrounded by, or substantially surrounded by OU property, we have also held the Agreement does not authorize the Norman and OU Chiefs of Police, by joint memorandum, to expand OUPD jurisdiction beyond the limits of the Agreement. Given the Agreement’s delineation of OUPD jurisdiction limited to property and public ways adjacent to or surrounded by OU property, and the parties’ stipulation that neither the offense nor the arrest occurred on the OU campus, or on a public way immediately adjacent thereto, we hold the trial court did not err in vacating the order of revocation.

¶ 17 The order of the trial court is therefore AFFIRMED.

JONES, J., and BUETTNER, J., concur.

      . "fT]he Agreement is not void for uncertainty or vagueness.”

      . After district court dismissed State's attempted appeal of magistrate's order sustaining criminal defendant's motion to suppress for lack of a valid arrest within OUPD jurisdiction, on a reserved question of law, the Court of Criminal Appeals held, ”[t]he order upholding the magistrate's decision was erroneous.”


author: CAROL M. HANSEN, Presiding Judge:

text:
    2002 OK CIV APP 76
    Henry WILKINS, Petitioner, v. ATLANTIC RICHFIELD CO., Ace American and The Workers’ Compensation Court, Respondents.
    No. 97,186.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    June 21, 2002.
    Robert A. Flynn, Tulsa, OK, for Petitioner.

      Kristin Blue Fisher, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Respondent.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Petitioner, Henry Wilkins (Claimant), seeks review of a Workers’ Compensation Court order finding his claim was barred, alternatively, by the limitations period set forth in 85 O.S.1991 § 43(A) (hereafter § 43(A)) for cumulative trauma injuries and occupational disease. We find Claimant’s contention that § 43(A) is unconstitutional in that it affords disparate rules to claimants to be without merit and affirm.

¶ 2 Petitioner worked for Respondent, Atlantic Richfield Co. (Employer), for “close to 12” years, with employment voluntarily ending in November 1992. He filed his Form 3, Employee’s First Notice of Accidental Injury and Claim for Compensation, on October 2, 1996, alleging cumulative trauma injury to “lungs, respiratory, joints, glands” due to “chemical exposure”. He further alleged the date of last exposure was March 15, 1991. In its Answer, Employer, among other things, asserted statute of limitations as an affirmative defense.

¶3 In February 2001, Claimant amended his Form 3 filing with a Form 3-B, Employee’s First Notice of Occupational Disease and Claim for Compensation. In this latter filing Claimant alleged injury to his lungs from chemical exposure, with partial loss of a lung. The date of last exposure was omitted, but the “[d]ate of first distinct manifestation” was noted on the form as February 1995.

¶ 4 At trial, Claimant announced the issue was “injury to the lungs and respiratory system due to a(sic) occupational disease, or in the alternative, a cumulative trauma exposure.” Employer reiterated its defense of the statute of limitations as to either theory of recovery. The trial court denied the claim, finding it was barred by the statute of limitations “as to either theory of recovery alleged by the claimant.” Claimant now seeks review of the trial court’s order denying his claim.

¶ 5 A statute of limitations defense is treated as a true affirmative defense, and is not independently reviewed by this Court as a jurisdictional question. Special Indemnity Fund v. Choate, 1993 OK 15, 847 P.2d 796. If a Workers’ Compensation Court determination on such a defense is reasonably supported by the evidence and not otherwise contrary to law, it will not be disturbed on review. Id., at 804. Here, Claimant’s lone contention is that § 43(A) is, in part, unconstitutional. Thus, by implication, he concedes the evidence supports the Workers’ Compensation Court’s statute of limitations findings. The question remains whether it is contrary to law.

¶ 6 Section 43(A) provides, in pertinent part:

A. The right to claim compensation under the Workers’ Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court_Provid-ed further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. Provided further however, in the case of asbestosis, silicosis or exposure to nuclear radiation causally connected with employment, a claim may be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date said condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs....

¶ 7 Claimant argues here on review that although he alternatively pleaded cumulative trauma injury, his expert evidence establishes he sustained an occupational disease due to chemical exposure, and that the limitation periods under § 43(A) did not bar his claim because the first distinct manifestation of the disease was in approximately May or June, 1995. Claimant recognizes § 43(A) only provides for application of a first manifestation test in cases of asbestosis, silicosis or exposure to nuclear radiation, but contends that provision violates Article 5, § 59 of the Oklahoma Constitution as a special law disfavoring those who suffer from occupational diseases other than the three statutorily specified.

¶ 8 The trae nature of Claimant’s contention is reflected in his assertion this “disparate application of’ § 43(A) is violative of the equal protection clause of the constitutions of Oklahoma and the United States. The Oklahoma Supreme Court considered a similar question in McDonald v. Time-DC, Inc., 1989 OK 76, 773 P.2d 1252. The McDonald claimant argued the statute of limitations on his single-event injury did not begin to run until he “discovered” the full extent of his injury. The Supreme Court held the language of § 43 “militates against a construction that would allow engrafting a tort-like discovery rule” and went on to state:

... Only for asbestosis, silicosis or exposure to nuclear radiation does the limitation period now in effect begin to run from the date of manifestation. 85 O.S. Supp. 1986 § 43(A). The cited enactment’s restriction operates as an explicit exception from the general regime for application to some forms of cumulative-effect injuries. The legislative enumeration of compensa-ble harms singled out from others clearly prohibits a judicial extension of similar exceptions both to single-event or to other kinds of cumulative-effect injuries, regardless of apparent hardship or inconvenience.

McDonald, 773 P.2d at 1257.

¶ 9 Thus, the McDonald Court expressly found the first manifestation test may only be applied in cases of those specifically enumerated conditions in § 43(A). The Court further held that a division of claimants based on the character of their disease or injuries did not “offend constitutional restrictions on the governmental use of classifications,” noting:

Single-event and cumulative-event injuries bear distinctive characteristics which require different treatment. Recognition of these separate classes is necessary for fair application of § 43’s one-year (now two-year) limitation. It is hence rationally related to legitimate state interests in orderly adjudication of claims and in judicial economy. There is here no violation of the U.S. Constitution’s Equal Protection Clause of the 14th Amendment.

McDonald, 773 P.2d at 1257.

¶ 10 The State has the same interests in extending the limitation period by application of a first manifestation test in only those certain limited circumstances where — -as contrasted to other injuries and occupational diseases — [1] the harmful employment related effects are normally imperceptible to the senses, and [2] the injuries are at first asymptomatic with latency periods of many years before becoming manifest. The limitations in § 43(A) allow no-fault compensation for loss of employees’ earning power while imposing reasonable time limits on employers’ liability particularized to the characteristics of each type of injury or disease. We find in the foregoing a legitimate state purpose in the § 43(A) classifications which satisfies a rational-basis inquiry. Special Indem. Fund v. Bedford, 1993 OK 60, 852 P.2d 150.

¶ 11 Claimant having conceded the evidence supports the Workers’ Compensation Court’s findings, and Claimant having failed to established the order on review is contrary to law, that order is SUSTAINED.

MITCHELL, J., concurs; ADAMS, J., concurs in result.

      . The Supreme Court has also specifically noted this § 43(A) differentiation in limitations periods between types of cumulative injuries or occupational diseases in other cases and has never suggested constitutional implications. See, e.g. Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001 ("Workers’ Compensation claims for cumulative-trauma injuries — other than injuries caused by asbestosis, silicosis or nuclear radiation — must be brought within two years of last exposure to the harm-dealing micro trauma."), and B.F. Goodrich Co. v. Williams, 1988 OK 62, 755 P.2d 676 ("... this provision would clearly seem to indicate an intent of the Legislature to limit the effectiveness of the ‘awareness doctrine’ to the case specifically mentioned and to preclude its application in all other cumulative trauma or hazardous exposure cases.”)

      . For cases acknowledging these exceptional characteristics of the conditions enumerated in § 43(A) — See, Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265 (Alaska 2001) (silicosis, asbestosis); Schirmer v. Homestake Min. Co., 118 N.M. 420, 882 P.2d 11 (1994) (exposure to radiation); Tomlinson v. Owens-Coming Fiberglas Corp., 244 Kan. 506, 770 P.2d 833 (1989) (asbestos-related disease); and White v. Johns-Manville Corp., 103 Wash.2d 344, 693 P.2d 687 (1985)(asbestos-relat-ed disease).