text:
    2003 OK 30
    Elaine Desouza GLADSTONE, As Special Administratrix of the Estate of Martin John Gladstone, and As the Widow of Martin John Gladstone, Plaintiff-Appellant, v. BARTLESVILLE INDEPENDENT SCHOOL DISTRICT NO. 30 (I-30), Defendant-Appellee.
    No. 97,544.
    Supreme Court of Oklahoma.
    March 18, 2003.

      Alan R. Carlson, William W. Busby, Garrison, Brown, Carlson, Buchanan & Busby, Bartlesville, OK, for Appellant.
    Frederick J. Hegenbart, Rosenstein, Fist & Ringold, Tulsa, OK, for Appellee.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, V.C.J.

T1 The dispositive issue on certiorari is whether the terms of § 155(14) of the Governmental Tort Claims Act [GTCAJ-which exclude from state tort liability claims for death (or bodily injury) from an on-the-job injury covered by workers' compensation but extend government's tort accountability to claims by persons with access to collateral sources of indemnity other than workers' compensation (and employer's liability)-violate (1) the Equal Protection Clause of the U.S. Constitution and the equal treatment notions protected by the state constitution and (2) the Due Process Clauses in both the Oklahoma and the U.S. Constitutions? We answer in the negative.

I

THE ANATOMY OF LITIGATION

12 Martin John Gladstone [decedent] was killed when struck by a school bus driven by an employee of the Bartlesville Independent School District No. 30 [District]. Decedent's widow, Elaine Desousa Gladstone [Gladstone or widow], received the statutory workers' compensation death benefits from the decedent's employer, Phillips Petroleum Company. Gladstone then brought a wrongful death action against District. The trial court gave summary judgment to District. The latter's quest for summary relief stood rested on § 155(14) of the GTCA [subdiv. 14], whose terms shield the state or political subdivision from liability for "any loss to any person covered by any workers' compensation act." Finding the facts to be undisputed (and inferentially not supportive of oppo-gite inferences), the trial court concluded (a) the case is governed by Childs v. State of Oklahoma and Smith v. State Dept. of Transportation as well as by Art. 28 § 7, Ok. Const., (b) there is a rational basis for the governing legislation, (c) no fundamental right of the plaintiff is violated and (d) the GTCA immunizes District from Hability because the plaintiffs loss is protected by workers' compensation coverage.

13 The Court of Civil Appeals [COCA] affirmed, noting that Hladstone's equal protection challenge stands rejected by extant jurisprudence. While it viewed Gladstone's arguments as both rational and persuasive, the appellate court declined her invitation to follow Minnesota authority and to strike down subdiv. 14 as constitutionally infirm.

T4 Although we reach today the same conclusion as COCA, we vacate that court's opinion to settle the point of law by a prece-dential pronouncement.

II

STANDARD OF REVIEW

15 The material facts in this cause are undisputed and support but a single inference in favor of the movant. The issues tendered on certiorari call solely for this court's resolution of legal questions. Review of contested issues of law is governed by a de movo standard. In its re-examination of a trial court's legal rulings an appellate court exercises plenary, independent and nondefer-ential authority.

IHI

CONSTITUTIONALITY OF THE SUBDIV. 14 EXEMPTION

16 Gladstone asserts that the subdiv. 14 contravenes the (a) Equal Protection Clause of the 14th Amend., U.S. Const., as well as the equal treatment notions protected by the state constitution and (b) the Due Process Clauses of both the Oklahoma and the U.S. Constitutions.

A.

Equal Protection Challenge

17 Gladstone argues that subdiv. 14 violates the equal protection guarantee because there is no rational basis for a classification that impermissibly exeludes from state tort liability all claims for on-the-job bodily injuries (or death) which are covered by compensation but not the claims in which the plaintiff may have access to a collateral indemnity source much more generous than that afforded by the workers' compensation regime. She urges that subdiv. 14 has not been tested by extant jurisprudence for constitutional conformity on the ground she presses. According to Gladstone, Childs is factually distinguishable. There subdiv. 14 was attacked as offensive to equal treatment either for (a) Texas and Oklahoma citizens or for (c) governmental and nongovernmental employees. She claims Smith provides no support for District's position because there the court relied solely on Childs without providing an independent equal protection analysis. She directs us to Bernthal v. City of St. Paul where a similar exemption was condemned as constitutionally infirm. Gladstone urges the court to adopt the Minnesota solution.

T8 District asserts that CHadstone has identified no reason for this court to depart from precedent established in Childs and Smith. According to District, West Virginia jurisprudence upheld an exemption similar to subdiv. 14 and expressly rejected the argument Gladstone presses here. We are urged to adopt the rationale of West Virginia and uphold the validity of the legislation in contest.

Y%9 The Equal Protection Clause of the Fourteenth Amendment mandates that no state "deny to any person within its jurisdiction the equal protection of the laws." An "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right [such as the right to vote, the right of interstate travel, rights guaranteed by the First Amendment, or the right to procreate] or operates to the peculiar disadvantage of a suspect class [such as a class based on race, alienage or ancestry]." Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Economic legislation-like that tendered for testing here-which is not drawn upon inherently suspect classifications or impinges upon anyone's fundamental rights must generally be upheld against an equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.

110 It is not urged here that the challenged scheme is drawn upon some inherently suspect classification. Nor does our research find that governmental tort claimants have ever been held to form a protected class entitled to a heightened standard of review. Gladstone claims that subdiv. 14 arbitrarily and unfairly burdens a fundamental right-the right to life as well as stifles the exercise of a fundamental personal liberty-that of obtaining redress from a governmental tortfeasor.

111 While the U.S. Supreme Court has examined "right-to-life" issues in other contexts, Gladstone has presented nothing to show that bringing a wrongful death action against a governmental tortfeasor is a fundamental right for federal equal protection purposes. Because there is no federal supreme court jurisprudence which imposes upon the states some canonical regime of constitutionally acceptable public tort liability, we must decline today either (a) to craft a mandate in advance of the highest court's authoritative pronouncement or (b) to hold that the legislature's exclusion from state tort liability of persons similarly situated to the decedent arbitrarily impinges upon a fundamental value.

Rational-Basis Review

"12 Because we are dealing here neither with a suspect classification nor with an infringement upon a fundamental right, the rational-basis standard of review governs this dispute. Rational-basis scrutiny is a highly deferential standard that proscribes only that which clearly lies beyond the outer limit of a legislature's power. A statutory classification is constitutional under rational-basis scrutiny so long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." The rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." For these reasons, legislative bodies are generally "presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.

The Legislative Objective Of § 155(14) Immunity

118 The common-law doctrine of governmental tort immunity protects public funds from claims by private persons. Vanderpool v. State abrogated Oklahoma's judge-made source of that doctrine and left unaffected the legislature's power to regulate the entire field of governmental tort lability. The legislature then enacted a modified form of sovereign immunity into the body of statutory law and waived its shield against liability (of the state and its political subdivisions) "only to the extent and in the manner provided in" the Act. Subject only to the Act's specific limitations and exceptions, the GTCA extends governmental accountability to all torts for which a private person or entity would be liable. The legislature kept in force certain forms of irmmunity from liability by providing in § 155 thirty-two carefully cireumseribed exemptions. Section 155(14) of the GTCA affords immunity to a governmental subdivision for claims of bodily injury or death from an on-the-job injury which are "covered by any workers' compensation act or any employer's liability act." In short, while the state and political subdivisions are not liable for injuries to tort claimants who stand covered by the workers' compensation regime, they are legally accountable for the injuries to tort claimants not otherwise protected.

{14 The hardship Gladstone complains of is the arguable unfairness in treating governmental tort claimants who are covered by workers' compensation differently from persons without that coverage. The latter class not only may sue in tort to recover damages for the negligent acts of governmental tort-feasors but is also accorded access to collateral indemnity sources without losing the right to press a public tort claim. The critical question here is whether the classification in question rests upon a difference which bears a reasonable relationship to the goals of the GTCA.

115 The Equal Protection Clause does not, for purposes of rational-basis review, demand that a legislature actually articulate the purpose or rationale that supports its classification. A court will hypothesize reasons for the law's enact, ment if the legislature fails to do so. While there is nothing in the statutory language to indicate the Legislature's purpose in excluding from government tort liability all claims covered by workers' compensation liability, the obvious objective is to protect the public fise by limiting recov-erability for public wrongs. We must next consider whether the subdiv. 14 exemption is rationally related to this legitimate state objective.

[16 Gladstone argues that the existence of a collateral source of benefits-workers' compensation-is not a reasonable basis for the classification. She claims subdiv. 14 cannot withstand a rationality test because it creates an impermissible classification based upon criteria-source of collateral benefits-wholly unrelated to the legislative objective. She urges there is an absence of reason for this arbitrary distinction.

117 The parties inform us that a similar exclusion from governmental tort liability has withstood an equal protection challenge in West Virginia (O'Dell v. Town of Gauley Bridge ) but was struck down in Minnesota (Bernthal v. City of St. Paul). The West Virginia court observed that in Oregon (Edwards v. State Military Dept.) a like exemption had passed constitutional muster. In Edwards, the court reasoned that the legislature need not include all persons who were otherwise covered by insurance within the excepted class because that body is not required to enact laws which operate to solve every aspect of the problem in a perfect manner. The Oregon court also opined that the legislature may have concluded it was best to confine the exception to a compensation system with which it was familiar (i.e., one that it had created). Citing Edwards with approval, the West Virginia court reached a similar result in O'Dell. There the line drawn between the two classes of tort claimants was declared not to be without logic. This is so because persons covered by workers' compensation must also forego their common-law tort remedies against the employers, while those who have no access to compensation benefits retain the right to sue their employers for a full range of damages. The court explicitly rejected the Minnesota solution in Bernthal. Bernthal, on the other hand, focused on the lack of any legislative history shedding light on the purpose of the statute. It perceived the want of legislative facts to be critical to its constitutional analysis, holding that even if the statute furthered the legislative purpose of protecting the political subdivision's financial integrity, the classification was nonetheless based upon impermissible criteria wholly unrelated to that objective-the source of indemnity benefits.

118 Although Oklahoma, like Minnesota, lacks legislative history materials that identify the basis for the exception in contest, that fact alone affords no basis for judging the legislative wisdom in excluding the disputed category of claims from public tort liability. Making classifications is at the heart of the legislative function. In the economic sphere, it is only the invidious discrimination-the purely arbitrary act that cannot stand in harmony with the federal and state equal rights guarantee-which will doom legislation. Because the legislature could have eliminated from the benefit of public tort liability all classes of persons who have access to collateral sources of indemnity, it is not constitutionally impermissible for the legislature to have drawn lines between groups of insured persons for the purpose of protecting the public fise by reducing the number of potential tort claimants or of phasing out those benefits. Legislative reform may take "one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." The task of classifying persons for exclusion from public tort liability inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, judgment. We cannot say that the challenged classification so lacks rationality as to amount to a denial of equal protection.

B.

Due Process Challenge

T 19 Gladstone argues that subdiv. 14 is an arbitrary act because it requires that an Oklahoma citizen be restricted to workers compensation benefits as her sole redress for the deprivation of her husband's life (or health) while the real wrongdoer (the public entity) escapes without any accountability to the tort victim. She asserts that state and federal fundamental law requires that government action affecting "life, liberty or property" must conform to that measure of fairness which accords with the minimum standards of due process.

€20 Gladstone's due process challenge requires little discussion. Like the Equal Protection Clause, "the Due Process Clause does not empower the judiciary to sit as a superlegislature to weigh the wisdom of legislation." In the area of economic legislation, due process challenges on substantive-law grounds, similar to equal protection contests, are also assessed against a rational-basis standard of review. Given our rational-basis analysis in Part III(A), supra, we have no difficulty in concluding that subdiv. 14 does not contravene the mandate for testing due process application on substantive-law grounds.

21 In sum, while the legislatively crafted incidence of public tort liability (insofar as it excludes only those protected by workers' compensation) does at first blush appear unfair and inequitable, we cannot find it constitutionally infirm.

IV

NONCONSTITUTIONAL CHALLENGES

122 Gladstone argues that subdiv. 14 violates the "rule of reason" and "public policy of fairness" because it places the burden of indemnity on the wrong person-the employer's compensation carrier rather than on the negligent party, the public tortfeasor. According to ladstone, subdiv. 14 is contrary to the collateral source rule in that it immunizes the public tortfeasor simply because the injured party has a collateral source of indemnity, namely workers' compensation. She claims that subdiv. 14 would encourage reckless disregard for public safety because the governmental entity would suffer no consequences for its wrongdoing whenever the injured party is covered by workers' compensation. Lastly, she urges that the exemption radically departs from the principles announced in Vanderpool and creates disharmony with existing Oklahoma law.

128 Gladstone's arguments target the fairness and wisdom of the challenged legislative enactment. When called upon to examine a statute, this court is confined to entertaining attacks on its construction or on its constitutional validity. A legislative act is presumed to be constitutional and will be upheld until the contrary is shown. We cannot be concerned with arguments addressing themselves to desirability, wisdom or logic of legislation unless it offends the constitution. By placing responsibility on a workers' compensation carrier for the tort of a governmental employee, the legislature has violated no constitutional norm. We are hence powerless to invalidate its act. This court is not a roving commission to scrutinize legislative fairness or to invalidate enactments that, though unfair or inequitable, are nonetheless free from constitutional warp. If we were to strike down all statutes that appear unwise or unsound, our course of conduct would severely undermine the tripartite division of powers among the three branches of state government.

V

SUMMARY

124 Because the subdiv 14 exclusion of claims from state tort liability is neither drawn upon inherently suspect classifications nor impinges upon fundamental rights, the rational-basis standard of review governs the equal protection challenge mounted in this cause. A legislative classification must be upheld against an equal protection attack if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. In the area of economic legislation the judiciary extends great deference to the lawmakers' judgment. Deferential review is grounded in part on the philosophy that line-drawing is an inevitable aspect of the legislative function. Acknowledging, as we must, the presumptive validity of legislative enactments, coupled with the well-settled rule that courts do not sit as superlegislatures, we cannot say that the disputed classification scheme is so irrational as to fail constitutional serutiny.

$25 Although we are not unmindful that the exelusion of only those persons who are protected by workers' compensation might appear unfair and inequitable, we find absolutely no basis in the equal protection or due process analyses for its condemnation as invidious discrimination or as otherwise offensive to some principle of fundamental federal or state law.

126 On certiorari granted upon the widow's petition, the Court of Civil Appeals' opinion is vacated and the trial court's summary judgment is affirmed.

127 ALL JUSTICES CONCUR.

      . The pertinent terms of 51 0.$.2001 § 155(14) are:
      ''The state or a political subdivision shall not be liable if a loss or claim results from:
      (14) Amy loss to any person covered by any workers' compensation act or any employer's » liability act: ... -

      . 85 0.$.2001 § 22(8).

      . 51 0.$.2001 § 151 et seq.

      . Supra note 2.

      . 1993 OK 18, 848 P.2d 571. In Childs the court held the subdiv. 14 immunity embraced claims by all nongovernmental employees covered for the injurious event by the workers' compensation regime of any state. The exemption survived a due process and equal protection challenge in Childs because it neither made a distinction between resident and nonresident victims nor provided for nonresidents a regime that is different from that available to residents.

      . 1994 OK 61, 875 P.2d 1147. The court held in Smith that Childs, supra note 6, was dispositive of a truck driver's wrongful death claim against the state.

      . - The terms of Art. 23 § 7, OKI. Const., are:
      The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions.
      (emphasis added).

      . - For this view, COCA cites Childs, supra note 6, Smith, supra 7, and Maltsberger v. Board of County Comm'rs, 1999 OK CIV APP 79, 987 P.2d 437. In Maltsberger affirmance of summary judgment for the county in an injured postal employee's claim for damages was rested on subdiv. 14 immunity, even though the compensation claim of the employee had been denied for insufficiency of the medical evidence.

      . - Gladstone relies on Bernthal v. City of St. Paul, 376 N.W.2d 422 (Minn.1985).

      . Shamblin v. Beasley, 1998 OK 88, ¶9, 967 P.2d 1200, 1207.

      . - An order that grants summary relief, in whole or in part, disposes solely of law questions. It is hence reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321.

      . Mahan v. NTC of America, 1992 OK 8, ¶2, 832 P.2d 805, 808 (Opala, C.J., concurring) de novo standard of review is utterly nonde-ferential because it ascribes absolutely no weight to a lower tribunal's findings "), Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084; Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

      . The Equal Protection Clause of the 14th Amend., § 1, U.S. Const., commands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992).

      . Although the Oklahoma Constitution does not contain an equal protection provision like or similar to that found in its federal counterpart, this court has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section, Art. 2, § 7, Okl. Const.; Fair School Finance Council v. State, 1987 OK 114, ¶54, 746 P.2d 1135, 1148 n. 48; McKeever Drilling Co. v. Egbert, 1934 OK 763, ¶15, 40 P.2d 32, 35, 170 Okla. 259. The terms of § 7 are:
      No person shall be deprived of life, liberty, or property, without due process of law.

      . Art. 2 § 7, OK. Const., supra note 15; Art. 14 § 1, U.S. Const., supra note 14. Our due process clause "has a definitional sweep that is coextensive with its federal counterpart." Fair School Finance Council, supra note 15 at 1148; McKeever Drilling Co., supra note 15 at 35. See Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972) (citing Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 17 L.Ed. 531 (1863) and Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).

      . Supra note 6.

      . Supra note 7.

      . Bernthal, supra note 10 at 425-26. There the court struck down as violative of equal protection an exemption in its governmental tort claim statute which excluded from suits against a municipality those where the plaintiff is eligible to receive workers' compensation.

      . District relies on Childs, supra note 6, Smith, supra note 7 and Maltsberger, supra note 9.

      . O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992).

      . Art. 14 § 1, U.S. Const. When called upon to analyze a case on equal protection grounds, a court will apply one of three standards of review; (a) rational basis, (b) heightened scrutiny, or (c) strict scrutiny. If the classification does not implicate a suspect class or abridge a fundamental right, the rational-basis test is used, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-42, 105 S.Ct. 3249, 3254-255, 87 L.Ed.2d 313 (1985).

      . Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976), citing San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 LEd.2d 16 (1973). The Court defined a suspect class as one that is "saddled with such disabilities, or subjected to such history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the ma-joritarian political process." Murgia, supra, 427 U.S. at 313, 96 S.Ct. at 2567.

      . When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-75, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Ross v. Peters, 1993 OK 8, ¶23, 846 P.2d 1107, 1117-18.

      . Unless a classification warrants some form of heightened review because it jeopardizes the exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest. Cleburne, supra note 22, 473 U.S. at 440-41, 105 S.Ct. at 3254-55; Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981); Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970).

      . Gladstone cites to Art. 2 § 2, OKL Const. Its terms are:
      All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry

      . See, eg., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (capital punishment); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)(mercy killing).

      . Childs, supra note 6 at 120, at 577; Black v. Ball Janitorial Serv., Inc., 1986 OK 75, ¶7, 730 P.2d 510, 513.

      . "[Ujuless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest." - Nordlinger, supra note 14, 505 U.S. at 10, 112 S.Ct. at 2331; Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); United States Railroad Retirement Board, supra note 24, 449 U.S. at 174-175, 101 S.Ct. at 459-460; Vance v. Bradley, 440 U.S. 93, 96-97, 99 S.Ct. 939, 942-43, 59 L.Ed.2d 171 (1979); New Orleans, supra note 24, 427 U.S. at 303, 96 S.Ct. at 2516-17.

      . In the area of equal protection challenges to economic legislation, the judiciary extends great deference to the legislature's judgment. Deferential review is grounded in part on the view that line-drawing is an inevitable aspect of the legislative function and that "even improvident decisions will eventually be rectified by the democratic processes." City of Cleburne, supra note 22, 473 U.S. at 440, 105 S.Ct. at 3254; New Orleans, supra note 24, 427 U.S. at 303, 96 S.Ct. at 2516, citing Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973) (when local economic regulation is challenged solely for violating the Equal Protection Clause, the U.S. Supreme Court defers to legislative determinations as to the desirability of particular statutory discriminations).

      . F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). The U.S. Supreme Court has explained that: "Where there are' plausible reasons' for Congress' action, 'our inquiry is at an end.' United States R.R. Retirement Bd., supra [note 24], 449 U.S. at 179, 101 S.Ct. at 461. This standard of review is a paradigm of judicial restraint." F.C.C. supra, 508 U.S. at 313-14, 113 S.Ct. at 2101.

      . F.C.C., supra note 31, 508 U.S. at 313, 113 S.Ct. at 2101; Dandridge, supra note 25, 397 U.S. at 486, 90 S.Ct. at 1162.

      . Nordlinger, supra note 14, 505 U.S. at 10, 112 S.Ct. at 2331, quoting McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). "In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'" - Dandridge, supra note 25, 397 U.S. at 485, 90 S.Ct. at 1161 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)).

      . 1983 OK 82, 672 P.2d 1153, 1156-57. Van-derpool teaches that in the absence of a statute conferring partial or total immunity, the state, its political subdivisions and their employees acting within the scope of their employment would stand liable in tort in the same manner as a private individual or corporation.

      . The exemptions set forth in 51 O0.$.2001 § 155 address themselves to claims over which the state expressly retains its sovereign immunity. The § 155 terms provide that the state or a political subdivision shall not be liable if a loss or claim results from any one of thirty-two specified activities of the state or its agents.

      . This exception (§ 155(14)) will not avail if the workers' compensation protection proves unavailable either because the deceased was not within the scope of employment or any other employment-related risk. The record in this case does not reflect that the workers' compensation Liability's protection failed for any reason. See in this connection Malisberger, supra note 9.

      . Nordlinger, supra note 14, 505 U.S. at 15, 112 S.Ct. at 2334; United States Railroad Retirement Bd., supra note 24, 449 U.S. at 179, 101 S.Ct. at 461 (the U.S. Supreme "Court has never insisted that a legislative body articulate its reasons for enacting a statute"); McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969) (a legitimate state purpose may be ascertained even when the legislative or administrative history is silent).

      . T.I.M. Co., Inc. v. Oklahoma Land Title Ass'n, 1984 OK 66, 698 P.2d 915, 920; Williamson v. Lee Optical Co., 348 U.S. 483, 490, 75 S.Ct. 461, 465-66, 99 L.Ed. 563 (1955).

      . - Gladstone asserts that the distinction is particularly arbitrary where, as here, the governmental tortfeasor would not be exposed to "double dipping" because a third party, the private employer, would be responsible for statutory death benefits,

      . O'Dell, supra note 21.

      . - Bernthal, supra note 10.

      . 8 Or.App. 620, 494 P.2d 891 (1972). Edwards was followed in Ward v. Romig, 101 Or.App. 235, 790 P.2d 44 (1990); Jungen v. State, 94 Or.App. 101, 764 P.2d 938, 941 (1988), review denied, 307 Or. 658, 772 P.2d 1341 (1989), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 313 (1989).

      . According to Edwards, the fact that a tort claimant could recover more against the state than under the compensation act did not detract from the overall reasonableness of the classification. Edwards, supra note 42 at 894.

      . The Oregon court also noted that the statute affected a small class of plaintiffs. Persons in the excepted class must satisfy four requirements before their claims are barred by the immunity provisions: (F) the plaintiff must have been injured by the negligence of a political subdivision's employee; (2) the plaintiff must have been injured in the course of his employment; (3) the plaintiff's employer must have workers' compensation coverage and (4) the plaintiff must be eligible for such benefits. Edwards, supra note 42 at 894. -

      . The West Virginia court held that the statute did not offend the Equal Protection Clause when considered (a) in light of its legislative purpose of protecting the governmental entity by making insurance affordable (by reducing the number of cases filed against them) and (b) from the perspective of the other class of tort claimants who are barred from suing the governmental entity (its own employees).

      . In O'Dell, the court disagreed with the Bernthal (supra note 10) rationale that while a classification based on the tort claimant's source of insurance benefits may reduce the number of suits possible against a municipality, it is nonetheless "completely unrelated to the purposes of the statute." O'Dell, supra note 21 at 603. The court noted that unlike in Bernthal, the legitimate state purpose underlying West Virginia statute was clear-to enable political subdivisions of the state to obtain affordable liability insurance. The court concluded that the legislature's exclusion from state tort Hability of certain claimants, but not others, is not, of itself, evidence that the distinction bears no rational relationship to the state interest. Id.

      . - Bernthal, supra note 10.

      . The Minnesota court reasoned that excluding persons covered by workers' compensation was no more rational than basing the exception on gender. Id.

      . City of New Orleans, supra note 24, 427 U.S. at 303-04, 96 S.Ct. at 2517.

      . Id.

      . Williamson, supra note 38, 348 U.S. at 489, 75 S.Ct. at 465; F.C.C., supra note 31, 508 U.S. at 316, 113 S.Ct. at 2102.

      . F.C.C., supra note 31, 508 U.S. at 315-16, 113 S.Ct. at 2102; United States R.R. Retirement Bd., supra note 24, 449 U.S. at 179, 101 S.Ct. at 461.

      . Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978)(quoting Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963)); New Orleans, supra note 24, 427 U.S. at 303, 96 S.Ct. at 2515-2517. The principle of judicial restraint includes recognition of the inability and undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected legislature. Ferguson, supra, 372 U.S. at 731-32, 83 S.Ct. at 1032.

      . Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 82-84, 98 S.Ct. 2620, 2635-2636, 57 L.Ed.2d 595 (1978), notes that economic legislation also comes to the Court with a presumption of constitutionality and that to demonstrate a due process violation, the complaining party must " 'establish that the legislature has acted in an arbitrary and irrational way.'" (citations omitted) There, the Court concludes the Price-Anderson Act, which imposed limitations on liability for nuclear accidents, passes consiitutional muster under a rational-basis analysis. See T.LM., supra note 38 at 920.

      . "Substantive due process" review is "the judicial determination of the compatibility of the substance of a law or governmental action with the Constitution. The Court is concerned with the constitutionality of the underlying rule rather than with the fairness of the process [procedural due process] by which the government applies the rule to an Individual." 2 Roxarp D. Rotunpa & Jorn E. Nowa®, Treatises on Constrrurionat Law § 14.6 at 356 (2nd Ed.1992).

      . Under the collateral source rule, benefits received by the plaintiff from any source other than the tortfeasor will not reduce the quantum of recoverable damages. Porter v. Manes, 1959 OK 239, 347 P.2d 210, 212; Huey v. Stephens, 1954 OK 222, 275 P.2d 254, 257.

      . Gladstone claims that subdiv. 14 is disharmonious with the following provisions of state constitutional and statutory law-15 0.$.2001 § 212, 23 0.$.2001 § 3 and Art. 2 §§ 2, 6, 7, OKI. Const.

      . Nordlinger, supra note 14, 505 U.S. at 10, 112 S.Ct. at 2331.

      . F.C.C., supra note 31, 508 U.S. at 313, 113 S.Ct. at 2101; Dandridge, supra note 25, 397 U.S. at 487, 90 S.Ct. at 1162.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    2003 OK 33
    Rusty ROBERTS, Own Risk, Petitioner, v. The UNIVERSITY OF IOWA HOSPITALS AND CLINICS, and The Workers' Compensation Court, Respondents.
    No. 95,817.
    Supreme Court of Oklahoma.
    March 18, 2003

      Daniel L. Durocher, Edmond, OK, for Petitioner.
    David Custar, Norman, OK, for Respondents.
   HODGES, J.

T1 In this matter, the Court of Civil Appeals reviewed a Workers' Compensation Court order directing payment for medical services provided to an injured employee. This Court holds that the medical provider's Form 19 request for medical payment was not barred by the statute of limitations and that on remand the Workers' Compensation Court must provide the basis for its decision concerning the amount of allowed charges.

T2 Cole Jungers (Claimant) sustained a work related injury in 1989 while working for Rusty Roberts (Employer). In June, 1992, the Workers' Compensation Court determined that Claimant was permanently partially disabled as a result of injuries to his head, neck, shoulders, lower back, and right foot. A December, 19983, order found that Claimant had sustained a change of condition for the worse and authorized medical treatment. It expressly reserved the issue of alleged bladder and bowel dysfunction for future hearing. Another change of condition for the worse was adjudicated in July, 1996. That order was silent as to any bladder or bowel dysfunction. In February, 1998, Claimant and Employer entered a Joint Petition settlement, approved by the Workers' Compensation Court, covering claims for injury to Claimant's "[hlead, left shoulder, neck, back, right foot, body as a whole, including all injuries known and unknown."

T3 The medical provider, University of Towa Hospital and Clinics (Hospital), filed its Form 19 request for payment of medical charges on December 7, 1998. The request covered $22,348.03 in charges from February 18, 1994, to the date of filing with $1,285.48 having been paid. Employer opposed the request asserting the statute of limitations and also asserting that the Workers' Compensation Court Administrator's Schedule of Medical and Hospital Fees (Fee Schedule) should be applied to reduce the unpaid charges.

T4 The Workers' Compensation Court rejected Employer's statute of limitations defense and ordered payment of "$21,112.55 as full, final and complete payment per the Oklahoma Medical Fee Schedule." A three judge panel affirmed the order. The Court of Civil Appeals vacated and remanded holding that a portion of the requested payment was barred by the statute of limitations. It required the trial tribunal, on remand, to make specific findings concerning its apparent refusal to follow the Fee Schedule. This Court granted certiorari review.

I. STATUTE OF LIMITATIONS

T5 Statute of limitations issues in Workers' Compensation ordinarily are mixed questions of fact and law. Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001, 1004; Munsingwear, Inc. v. Tullis. 557 P.2d 899. (Okla 1976). "Even though the trial court's factual determinations relative to the statutory time bar, if supported by any competent evidence, will not be independently reviewed," if application of the time bar is a mere conclusion of law, it is subject to de novo review by this Court. Sneed, 991 P.2d at 1004 (footnotes omitted). See also Tullis, 557 P.2d at 902.

16 The three year limitations period provided in Title 12, section 95(2), of the Oklahoma Statutes applies to a medical provider's Form 19 claim for payment. Fortenbacher v. Guardsmark, Inc., 867 P.2d 487, 489 (Okla.Ct.Civ.App.19983). The limitations period does not begin to run until all elements are present to pursue a request for payment to a successful conclusion. Chumley v. Climate Master, Inc., 1999 OK CIV APP 34, 979 P.2d 759, 761. "It is only after a claim/notice has been filed, Workers' Compensation Court jurisdiction has been assumed, and an adjudication has been made that the injury was work-related, that a medical care provider may seek in the Workers' Compensation Court reimbursement for services rendered." Romero v. Workers' Compensation Court, 863 P.2d 1251, 1254 (Okla.1993).

17 The Court of Civil Appeals held that Employer was liable only for services provided within the three years preceding the filing of Hospital's Form 19. It held that there had been no determination that the bladder and bowel dysfunction were work related. The record in this matter, however, does not support that conclusion.

T8 Following the initial determination in 1992, that a work related injury had left Claimant partially disabled and in need of medical treatment, the extent of the injury remained unresolved. The order adjudicating a change of condition for the worse in 1993 expressly reserved the issue of bladder and bowel dysfunction for future hearing. The extent of Claimant's injury remained unresolved in 1996 when a second change of condition order was silent as to the issue.

1 9 It was not until the 1998 Joint Petition which included "all injuries known and unknown" that a final determination of the extent of Claimant's injury was adjudicated and Employer agreed to be responsible for all reasonable and necessary medical bills resulting from the injury. Until that time, Hospital could not have successfully asserted its claim for reimbursement for the medical services it rendered concerning Claimant's bladder and bowel dysfunction. Hospital had three years from the Joint Petition settlement to file its Form 19. Its claim was not barred by the statute of limitations.

II. FEE SCHEDULE

110 The trial tribunal awarded the full unpaid amount which Hospital sought finding:

THAT the [Employer's] objection to payment is overruled. [Employer] shall pay [Hospital] the amount of $21,112.55 as full, final and complete payment per the Oklahoma Medical Fee Schedule.

In the finding, the trial tribunal purports to have followed the Fee Schedule, yet the entire unpaid amount claimed was awarded. There are at least three possible explanations for this result: (1) the trial tribunal declined to follow the Fee Schedule despite the representation that he did; (2) the trial tribunal applied the Fee Schedule but somehow found that it did not reduce the amount due the Hospital; or (8) the trial tribunal followed the Fee Schedule but entered the wrong amount in the order. On remand, the trial tribunal shall address the apparent internal inconsistency and record the basis for its decision in its order awarding payment of medical expenses.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; ORDER OF WORKERS' COMPENSATION COURT VACATED; CAUSE REMANDED TO WORKERS COMPENSATION COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

1 11 WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

1 12 KAUGER, J., concurs in result.


author: LUMPKIN, Judge: JOHNSON, P.J., CHAPEL, J., STRUBHAR, J.,

text:
    Patrick Dwayne MURPHY, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PCD-2001-1197.
    Court of Criminal Appeals of Oklahoma.
    March 21, 2003.
    Bryan Lester Dupler, Oklahoma Indigent Defense System, Norman, OK, for petitioner on appeal.
    W.A. Drew Edmondson, Attorney General, David Brockman, Assistant Attorney General, Oklahoma City, OK, for respondent on appeal.
   OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF REGARDING MENTAL RETARDATION AFTER REMAND FOR EVIDENTIA-RY HEARING

LUMPKIN, Judge:

11 Petitioner, Patrick Dwayne Murphy, was convicted of First Degree Murder in the District Court of MeIntosh County, Case Number CF-1999-164A, and sentenced to death. He appealed his conviction to this Court in Case No. D-2000-705. We affirmed Petitioner's conviction and sentence in Murphy v. State, 2002 OK CR 24, 47 P.3d 876.

12 Petitioner filed his Application for Post-Conviction Relief on February 7, 2002, claiming that, due to his "mild mental retardation," his execution would violate the state and - federal - constitutional - prohibitions against cruel and/or unusual punishments and would offend contemporary standards of decency. Petitioner's claim proved to be the test case for how this Court would proceed on the issue of mental retardation, following the United States Supreme Court's landmark decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

13 In light of Aikins, we found merit in Petitioner's mental retardation claim, raised in proposition three of his post-conviction application, to such an extent that required further attention. See Murphy v. State, 2002 OK CR 32, 54 P.3d 556. We therefore remanded the case to the District Court of Melntosh County for an evidentiary hearing "on the sole issue of Petitioner's claim of mental retardation." The District Court was ordered to "determine if Petitioner has raised sufficient evidence (at trial, on appeal, or at the evidentiary hearing) of his mental retardation, in accordance with the definition set forth herein, for the issue of mental retardation to be decided as a fact question by a jury at a resentencing hearing." We defined "sufficient evidence" as "enough evi-denee to create a fact question on the issue of whether the Petitioner is mentally retarded, as herein defined." We then instructed the District Court to submit its written findings to this Court.

T4 Before delving into the trial court's findings, we must point out that this case is unique, as most future cases will raise the issue of mental retardation in direct appeal proceedings. Our opinion on the issue of mental retardation, as set forth in Murphy v. State, 2002 OK CR 32, 54 P.3d 556, will not always be an easy fit, for it was this Court's well-intentioned attempt to give guidance and instruction for all cases involving the issue of mental retardation, as best we could. The opinion sets forth our position that all defendants should be given a fair opportunity to present the issue of mental retardation, and, where sufficient evidence of mental retardation has been demonstrated, that issue must be decided by a jury.

15 At Petitioner's jury trial, Dr. Bill Sharp, a licensed psychologist, testified that he had been able to visit with Petitioner for two hours, while Petitioner was in handcuffs. During the first stage of trial, Sharp testified that Petitioner "has probably a borderline mental capacity" (ie., an I.Q. of about 70 to 79), but Sharp's testimony primarily concentrated on Petitioner's chronic alcoholism and blackouts. During the second stage, however, Sharp testified that Petitioner scored a 67 on an abbreviated form of the Wechsler Adult Intelligence Test, which is in the mildly mentally retarded range.

16 Nevertheless, in his testimony and written report, Sharp indicated his belief that Petitioner would ultimately fall in the low average (Le., an I.Q. of about 80 to 89) to borderline range and that test results may have been affected by cultural concerns, Petitioner's impulsivity, and the testing conditions.

T7 At trial, Petitioner received the benefit of a jury instruction telling jurors to consider, as a mitigating factor, that he suffers from mild mental retardation. Jurors were thus given the opportunity to consider all the evidence Petitioner had presented regarding his claim of mental retardation and then to decide whether or not that factor, along with other matters of mitigation, should spare his life. The jury elected to assess the death penalty.

T8 In a way, the issue here is a simpler one. The sole question is whether or not Petitioner has raised sufficient evidence to create a fact question on the issue of his claim of mental retardation. If so, the issue must be submitted to a jury to be decided at a hearing, held solely on the issue of mental retardation, as we have defined it.

T9 The trial judge, the Honorable Steven W. Taylor, having heard all the evidence at trial and at the remanded evidentiary hearing answered this question with a resounding no. It is absolutely clear from Judge Taylor's order that he does not consider Petitioner to be mentally retarded under this Court's definition and the evidence presented. Judge Taylor is strongly of the opinion that a further hearing in this case would be futile.

{10 Among other things, Judge Taylor found: Petitioner's alcoholism directly impacted the 67 1.Q. finding made by Dr. Sharp in the partial and incomplete test given at the McIntosh County jail; the test administered by Dr. Sharp is not reliable due to the jail conditions, the incomplete testing, recent aleohol use, and lack of confidence in the test expressed by Dr. Sharp; a later complete L.Q. test which was given to the Defendant demonstrated an I.Q. of 80; the elementary school testing did not demonstrate mental retardation, only some academic weakness; in reference to the definition of mental retardation in the Remand Order, the evidence does not fit into any of the three categories; and there is a total lack of reliable evidence of mental retardation in this case.

I 11 While the determinative issue is, perhaps, a close one, most of Judge Taylor's findings are fairly supported by the record, and his ultimate conclusion, that Petitioner had not raised sufficient evidence to create a fact question on the issue of mental retardation, is not clearly erroneous.

112 We agree with Petitioner that the question of "sufficient evidence" is essentially the legal equivalent of a defendant making a prima facie showing of mental retardation with his or her evidence. Prima facie evidence has been defined as "[elvi-dence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient." Davis v. State, 1975 OK CR 211, 541 P.2d 1352, 1354; see also Bland v. State, 2000 OK CR 11, 4 P.3d 702, 719-20. However, that prima facie evidence must include all prongs of the definition for mental retardation.

113 In Murphy, we defined mental retardation by dividing it into three separate prongs, as follows:

A person is "mentally retarded": (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work.

A defendant must satisfy each of these prongs in order to be considered mentally retarded for purposes of his or her ineligibility for the death penalty.

14 With respect to the first prong, the record clearly indicates Petitioner's intelli-genee does not substantially limit his ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses and to understand the reaction of others. Furthermore, with respect to the third prong, the record clearly indicates Petitioner does not have significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. As stated in the DSM-IV: Mental Retardation, "adaptive functioning" means "the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group."

1 15 While Petitioner has some weaknesses in controlling impulses and logical reasoning, the record does not indicate his intelligence is substantially limited, separate and apart from his excessive alcohol consumption. Furthermore, Petitioner's adaptive functioning appears fairly normal, in spite of his excessive alcohol consumption.

1 16 Petitioner's own expert questioned the validity of the 67 Petitioner scored on the abbreviated form of the Wechsler Scale of Intelligence, ultimately finding Petitioner was in the borderline range. Sharp had been hired by Petitioner's lawyers to look for signs and symptoms of chemical dependency and the addictive process; his focus was not mental retardation. Testing took place at the county jail, and Petitioner remained in shackles and handcuffs during the brief two-hour testing. Petitioner was "hyper" during the testing with a lot of excess motor movement. Testing cccurred seven months after Petitioner was arrested, and testimony indicated cognitive deficits from alcohol could stay with a person from six months to over a year. Indeed, Sharp thought Petitioner's restlessness was a sign that he was still affected by his earlier alcohol abuse. Sharp attributed Petitioner's more recent IQ score of 80 to the following: "I think he's continued to improve because he's been further away from having aleohol."

117 Sharp gave Petitioner the Wechsler Abbreviated Scale of Intelligence, which had two subscales instead of the four on the full-scale version of the test. Sharp did not do adaptive behavior rating scales in order to make a diagnosis of mildly mentally retarded. There were longer, more comprehensive, tests that could have been conducted, but Sharp's focus was on alcohol dependency, not intelligence. He generally agreed Petitioner would have performed better if given all the subtests of the Wechsler test.

18 Sharp noted Petitioner demonstrated good social skills and was extremely cooperative during testing. Further, Petitioner graduated from high school without ever being held back and then attended some college classes. He has a good work history and received praise from his employers and was promoted to being a supervisor at his last job. He was neat and appropriate in appearance and had no noticeable speech problems. His thought processes "seemed to be logical and coherent." His judgment was estimated to be fair to poor.

119 Simply stated, Dr. Sharp's testing does not establish evidence good and sufficient on its face to establish mental retardation, as defined, even without rebuttal or contradiction. His conclusion that Petitioner functions in the borderline range of intelli-genee was confirmed by testing performed by Dr. Faust Bianco, who described Petitioner as follows: amiable; well groomed; oriented in all spheres; good insight and awareness; clear and fluent speech; able to comprehend what he reads; able to write legible sentences; polite; good sense of humor; 1.5 years of college education; normal gross mental status; "[allthough his gross cognitive functioning was borderline in nature he was not judged to be formally cognitively challenged (mentally retarded);" average short term retention of verbal material; low average visual attention skills; average perception; low average memory and language skills; and full .Q. of 80.

120 Judge Taylor also found "mental retardation" did not manifest itself in the Defendant before age eighteen. His learning limitations, however, certainly did. He scored weak to extremely weak in many areas of the Wechsler Preschool and Primary Intelligence Scale for Children, given before he turned six. He was placed in classes for the educable mentally handicapped, a term no longer used but was said to be comparable to mildly mentally retarded. He scored a grand mean of 5.48 on the test, which indicated a score between 65 and 73 in intellectual functioning, a range that would now be either mildly mentally retarded or borderline.

T21 On the other hand, severe auditory problems were noted in the school reports, as well as low frustration tolerance and anxiety. Petitioner was never held back in school. He was able to adapt and function and improve his skills over time. There was no formal diagnosis of mildly mentally retarded.

122 Valid test scores, standing alone, might have been sufficient to raise a fact question as to the second prong of the Murphy definition of mental retardation. However, as has been noted by subsequent testing, Petitioner's scores have been determined more by external influences than intellectual ability, ie., auditory problems, low frustration tolerance and anxiety, and alcoholism. Because Petitioner did not present sufficient evidence to satisfy the first and third prongs, and subsequent validated testing has shown he is not within the range of mental retardation, there is not sufficient evidence as to any of the prongs and the fact that his learning limitations manifested before the age of eighteen is a moot point.

{23 We do note, however, that certain arguments presented to Judge Taylor during the evidentiary hearing make it readily apparent Petitioner is attempting to expand the definition of mental retardation to include that which is a result of alcoholism. We reject this argument wholeheartedly, finding it inconsistent with both Atkins and Murphy.

T2 As both cases clearly explain, mental retardation is a developmental condition that manifests before the age of eighteen, or, as the American Association on Mental Retardation puts it, one that appears "at birth or during the person's childhood." Mental retardation is not an after-acquired disability that arises from a person's lifestyle choices, but one that originates from birth. As Professor James E. Ellis from the University of New Mexico School of Law explains, "The purpose of this ... prong of the definition is to distinguish mental retardation from those forms of brain damage that may occur later in life. (Such later-developing mental impairment could result from causes such as traumatic head injury, dementia caused by disease, or similar conditions.)" Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, pg. 9 (2002).

1 25 While the literature indicates the disability manifests "during the developmental period," legislatures, and now the Supreme Court, have extended the manifestation to prior to the 18th birthday. This elongated period of discovery gives the benefit of proof to the charged offender, although in most cireamstances the condition will begin manifesting early in a child's learning cycle by slow development, inability to retain, and a limited ability (or no ability) to read and function within the person's age group. Indeed, persons with mild mental retardation can attain academic skills only up to a sixth grade level.

126 In this case, Petitioner's counsel presented evidence and argument that attempted to show Petitioner was suffering from "mental retardation" as a result of aleoholism. While alcoholism, and its effects, might be described as a disability, alcoholism is not a cause of mental retardation or even a factor in the mental retardation equation. Indeed, Petitioner's alcoholism, in a sense, has an opposite effect, by muddying the ability to measure a defendant's retardation. In the instant case, Petitioner's alcoholism brings his testing with Dr. Sharp into serious question, insofar as any conclusions regarding mental retardation are concerned, because the effects of alcoholism likely impacted Petitioner's test-taking abilities, as Sharp himself admitted. We simply must separate one from the other in order to resolve the issue of mental retardation.

T27 In other words, mental retardation is a cognitive disability originating as a part of the human makeup of the subject individual. That is why the U.S. Supreme Court, in Atkins, elevated the condition beyond a mere mitigating factor to one that disqualifies defendants from eligibility for the death penalty.

128 The Supreme Court of Alabama recently addressed this issue in a factually similar case relating to the proof of mental retardation. In Ex Parte Roy Edward Perkins v. State of Alabama, - So.2d --, 2002 WL 31630711 (Ala.2002) (rehearing pending, not yet released for publication), the Court found that, while the evidence-which included a defendant who had a full scale LQ. of 76, who had earned a GED certificate, who had completed a college course in prison, and whose intellectual functioning had probably declined because of alcohol abuse-presented a "strong mitigating cireumstance to be considered in determining the appropriate sentence," it was not sufficient to establish the common requirements for mental retardation.

129 The same is true here. The bottom line is that Appellant's adaptive functioning, including schooling and work history, and his 80 I.Q.-ealculated with retardation in mind, with complete testing, and at a time when alcoholism should have had no impact on testing-all demonstrate Petitioner is not mentally retarded. Accordingly, we find the trial court's findings are not clearly erroneous, and no resentencing hearing is required. Petitioner's death sentence is thus AFFIRMED, and his Application for Post-Conviction Relief is hereby DENIED.

LILE, V.P.J., concurs.

JOHNSON, P.J., specially concurs.

CHAPEL and STRUBHAR, JJ., dissent.

JOHNSON, P.J.,

SPECIALLY CONCURRING.

1 1 I specially concur in the majority opinion herein. I do wish to state that I have not changed my position from earlier writings as it relates to the procedure. I, along with Judge Chapel, would adopt a different procedure as previously recorded in this case.

1 2 If a petitioner establishes a prima facie ease in any of the three prongs set forth in the definition of mental retardation, then he or she should be allowed to present that evidence to a jury to decide the issue. In this case, there is a clear ruling from an excellent trial judge that there was evidence of possible mental retardation. However, the judge made the determination that that was due to previous alcohol problems, and when the alcohol was removed, so was the mental retardation possibility.

T3 I do wish to be clear that under the facts of this case, the judge made a proper ruling. However, under subsequent cases, if there is a prima facie showing of evidence of possible mental retardation under any of the three prongs, then a jury issue is established.

CHAPEL, J.,

DISSENTING.

T1 We remanded this case to the trial court for an evidentiary hearing on the issue of mental retardation. We specifically directed the trial court to determine whether Murphy had raised enough evidence to create a fact question on the issue of whether he was mentally retarded, as defined in our opinion on remand. That definition contained three categories: (1) sub-average intellectual functioning which significantly limits a person's ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses and to understand others' reactions; (2) manifestation before age 18; and (3) significant limitations in adaptive functioning in at least two of nine enumerated skill areas; in addition, a person must have an intelligence quotient of seventy or below. I agree with the majority that Murphy must make a prima facie showing of mental retardation before this becomes a jury issue. However, I disagree with the majority's conclusion that a defendant must present prima facie evidence of all three categories of mental retardation in an evi-dentiary hearing. I believe that, where a defendant makes a prima facie case that he is retarded in even one category using the Murphy definition, a jury ought to determine the issue. The majority here admits that Murphy presented sufficient evidence to raise a fact question regarding the see-ond Murphy category. I would remand the case for a jury determination of the issue of mental retardation. I dissent.

STRUBHAR, J.,

DISSENTING.

T1 I dissent as the evidence presented to the trial court was sufficient to submit the question of mental retardation to a jury.

      . We denied post-conviction relief on all other issues except proposition three.

      . Mental retardation was not raised as an issue in Petitioner's initial appeal. (It appears Petitioner's appellate attorneys were more concerned with his trial attorney's failure to present thorough expert testimony regarding Petitioner's alleged neuropsychological dysfunction due to chronic alcoholism and prior head injuries.) The issue of retardation was raised, however, in Petitioner's application for post-conviction relief. As noted above, we remanded the matter for an evidentiary hearing, and Petitioner was given a second opportunity to present any evidence he had concerning his claim of mental retardation, in light of Atkins and this Court's definition of mental retardation. Murphy, 2002 OK CR 32, 54 P.3d 556.

      . "Manifestation before the age of eighteen" is a fact question intended to establish that the first signs of mental retardation appeared and were recognized before the defendant turned eighteen. Lay opinion and poor school records may be considered. Thus, a defendant need not, necessarily, introduce an intelligent quotient test administered before the age of eighteen or a medical opinion given before the age of eighteen in order to prove his or her mental retardation manifested before the age of eighteen, although such proof would surely be the more credible of that fact.

      . Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed. (1994).

      . This estimate is corroborated by the 80 Petitioner scored on a more recent test, a full-scale version of the Wechsler Scale of Intelligence.

      . "Mental retardation is not a psychological or medical disorder; it is a permanent developmental or functional condition." Lyn Entzeroth, Put ting the Mentally Retarded Criminal Defendant to Death: Charting the Development of a National Consensus to Exempt the Mentally Retarded from 2753015351141 Penalty, 52 Ala.L.Rev. 911, 915-16

      . - See also DSM-IV, supra, note 4.

      . DSM-IV, supra note 4; People v. Braggs, 335 Ill.App.3d, 52, 268 Ill.Dec. 861, 779 N.E.2d 475, 488 (Ill.App. 1 Dist.2002); see also Entzeroth, supra note 6, 52 Ala.L.Rev. at 914.

      . Murphy v. State, 2002 OK CR 32, 54 P.3d 556, 566-67.

      . Throughout, the majority refers to the "clearly erroneous" standard of review for the trial court's findings. As the Murphy definition requires a defendant to make a prima facie case for mental retardation only by a preponderance of the evidence, the "clearly erroneous" standard would not be appropriate. I think these cases require a de novo review, and the majority discussion of the findings suggests that it performed a de novo review in reaching its conclusion.


author: KENNETH L. BUETTENER, Judge:

text:
    2003 OK CIV APP 22
    In the Matter of S.D., an alleged deprived child. State of Oklahoma, Appellee, v. Cassandra Kinnamon, Appellant.
    No. 96,743.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 25, 2002.
    Certiorari Denied Feb. 19, 2003.

      Bryan N.B. King, Fellers, Snider, Blank enship, Bailey & Tippens, P.C., and Bill McKinney, Office of Oklahoma County Public Defender, Oklahoma City, OK, for S.D.
    Mary Smith, Assistant District Attorney, District 7, Oklahoma City, OK, for Appellee, State of Oklahoma.
    Jim Pearson, Oklahoma City, OK, for Appellant.
   KENNETH L. BUETTENER, Judge:

T 1 The State of Oklahoma filed a petition to terminate the parental rights of Cassandra Kinnamon (Mother) in her daughter, S.D., alleging that Mother had intentionally administered an overdose of medication to S.D. Mother moved in limine to prevent State from using any evidence concerning allegedly bad acts with respect to her older child which occurred approximately eight years prior to the current action. She also requested that the court exelude evidence relating to her mental condition. The trial court allowed ' discovery of Mother's psychiatric condition and treatment, stating that the psychotherapist-patient privilege does not protect those records or information from discovery. At trial, evidence of prior acts relating to the older child, compelled testimony from Mother's psychologist, and Mother's psychological records were introduced over Mother's objection. The jury returned a verdict terminating Mother's parental rights in S.D. We affirm.

12 Mother contends that the trial court erred in allowing discovery of her mental health records and the admission at trial of her mental health records and testimony concerning her mental health; in permitting the video testimony of her child; in admitting testimony about prior bad acts with respect to her older daughter in 1992 and, in relation thereto, incorrectly applying 12 00.98.1991 § 2404 (character evidence not admissible to prove conduct); and finally, in refusing to give a limiting instruction about prior bad acts.

3 It is undisputed that S.D. overdosed on Mellaril, a medication the child had not taken for some months, that Mother and stepfather took the child to Mercy Hospital about midnight where the emergency room physician noted her symptoms (drowsiness) and gave the child a charcoal slurry which kept the medicine from being absorbed by the body. The emergency room doctor did not make a report of suspected child abuse. Stabilized, the child was transferred to Integris (Baptist) Hospital and was released by her treating physician later that day. The treating doctor did not make a report of suspected child abuse.

I 4 Mother claims that the trial court erred in ordering discovery of her psychological records and in admitting testimony about her psychological condition and therapeutic ree-ords over her objection on the ground of privilege. The question whether a court may order discovery or admit evidence in a parental rights termination hearing, which otherwise would be protected by privilege, has not been answered in Oklahoma. Title 12 0.8. 1991 § 2508 states:

A. As used in this section:

1. A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist;
2, A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized;
3. A "psychotherapist" is:
a. a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or
b. a person licensed or certified as a psychologist under the laws of any state or nation, or reasonably believed by the patient to be so licensed or certified, while similarly engaged; and
4, A communication is "confidential" if not intended to be disclosed to third person, except persons present to further the interest of the patient in the consultation, examination or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
B. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including aleohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
C. The privilege may be claimed by the patient, his guardian or conservator or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
D. The following shall be exceptions to a claim of privilege:
1. There is no privilege under this seetion for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization;
2, Communications made in the course of a court ordered examination of the physical, mental or emotional condition of a patient, whether a party or a witness, are not privileged under this seetion when they relate to the particular purpose for which the examination is ordered unless the court orders otherwise; or
3. The privilege under this Code as to a communication relevant to the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon that condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, is qualified to the extent that an adverse party in said proceeding may obtain relevant information regarding said condition by statutory discovery.

Thus, § 2508 provides a privilege against disclosure of confidential communications made for the purpose of treating a mental condition. The § 2508(D) exceptions do not appear to apply here: 1) this was not a proceeding to hospitalize Mother for mental illness; 2) the records and testimony involved were not the result of court-ordered evaluation, and, 3) Mother did not place her mental status at issue through claim or defense. In this regard, the court record does not contain any responsive pleading by Mother, and at trial, she claimed S.D. got the medicine bottle and took the medicine without Mother's knowledge. Thus, § 2503 applied to the information sought from Mother, and none of the exceptions in § 2508(D) apply. The question then is whether there is any other basis for requiring disclosure of Mother's mental health records.

15 The State argues that the otherwise privileged evidence was discoverable as well as admissible by reading together two statutes. First, it claims that the expressed intention of the legislature in the Oklahoma Child Abuse Reporting and Prevention Act (the Act), 10 0.8. Supp.1995 § 7101 et seq., that in responding to reports of child abuse or neglect that the "best of interests of the child shall be of paramount consideration," limits the privilege. 10 O.S. Supp.1995 § 7102.

T6 It then cites § 7108 of the Act which states that every person who believes that a child is the victim of abuse or neglect must report the incident to the Department of Human Services and that no privilege relieves the person of this requirement.

T7 Then, pursuant to 10 O.S. Supp.1995 § 7106, DHS is required to initiate an investigation of reported child abuse or neglect. The statute specifically states that the investigation may include access to the mental health records of a parent if DHS has reason to believe that the parent has a history of mental illness. If such a parent does not voluntarily allow DHS access to those records, the district attorney may apply to the court, who shall, upon good cause shown, order access to the records pursuant to terms and conditions prescribed by the court. Finally, the State cites $ 7113 which provides that "such report, contents, or other fact related thereto ... shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure."

T8 In the instant case, it is undisputed Father called DHS to report the suspected abuse. Father made the call after Mother told him that she had given the medicine to S.D. Father also advised of Mother's attempted suicides and an overdose involving an older daughter. As a result of the report, DHS conducted an investigation, determined that Mother might have a mental illness, and sought her mental health records. The trial court granted disclosure. Under these facts, we hold that the legislature has abrogated the § 2508 psychotherapist privilege. Section 7118 states:

In any proceeding resulting from a report made pursuant to the provisions of the Oklahoma Child Abuse Report and Prevention Act or in any proceeding where such a report or any contents of the report are sought to be introduced into evidence, such report, contents, or other fact related thereto or to the condition of the child or victim who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.

T9 We find support for this position in cases from other states. The North Dakota Supreme Court held that a similar child abuse reporting act abrogated privileged communications in child abuse cases. Interest of R.O., 631 N.W.2d 159, 163 (N.D.2001). Likewise, the Minnesota Supreme Court has said:

Information which is sheltered by the statutory medical privilege loses its privileged status to the extent its disclosure is authorized by the Child Abuse Reporting Act.

State v. Odenbrett, 349 N.W.2d 265, 268 (Minn.1984).

110 While the parameters of the abrogation in each state may differ, the concept of abrogation is the same. One must then look to the specific language of the Child Abuse Reporting Act to determine to what extent the privilege is abrogated. In Oklahoma, where an authorized report leads to an investigation which leads to the court authorizing access to mental health records pursuant to § 7106(C)(8), then, at least to the extent of the access granted, the privilege is abrogated. Likewise, where the privilege as to mental health records is abrogated, the psychologist/psychiatrist generating those records may be compelled to testify pursuant to terms and conditions prescribed by the court pursuant to $ 7106(C)(B).

T11 Mother also contends that the trial court erred in admitting the child's video testimony at trial. She does not argue that the court used the incorrect procedure, but claims the child's statements did not provide a sufficient indicia of reliability. She bases this argument on the fact that at the § 2808.1 hearing, the court did not determine whether the child had personal knowledge of the crime. The court's statutory direction, however, allows it discretion in determining the reliability of the minor's statement. There is no error on this account.

112 Mother's next two allegations of error concern 12 0.8.1991 § 2404, "Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes." She claims that some of the evidence was too remote, including evidence of 1992 incidences with S.D.'s older sister and that the evidence of the events which happened to the sister were not similar enough to the alleged overdosing of S.D. She objected at trial, but the court overruled her objections. - Section 2404(B) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

The prior bad acts to which Mother objected occurred in 1992. The older sister was admitted to a hospital because of an overdose of Tylenol. There was also testimony that Mother tried to smother the older daughter. The petition alleging S.D., the younger daughter, was deprived was filed May 15, 2000. Although the evidence could not be admitted to show Mother had the character of a person who attempts to injure her children, and therefore attempted to injure S.D., it was admissible and relevant for other reasons, such as absence of mistake or accident. The trial court did not abuse its discretion in admitting the evidence.

{13 Finally, Mother argues that the trial court erred in refusing to give a limiting instruction with respect to the testimony concerning the prior bad acts. She cites the Oklahoma Uniform Jury Instruction-Criminal 9.9 to support her complaint. Mother does not cite any authority that a limiting instruction is required in termination proceedings. In any event, unless an instruction, or instructions taken as a whole, mislead a jury, there is no reversible error in faulty instructions so long as the verdict rests on competent evidence. Missouri-Kansas-Texas Railroad Company v. Harper, 1970 OK 77, 468 P.2d 1014. We are convinced that did not occur here.

{14 For the reasons expressed, we AFFIRM.

JOPLIN, V.C.J., and JONES, J., concur.

      . See 10 0.8. Supp.1995 § 1073 which requires health care workers attending a child, who suspect the child is abused, to report to DHS. Privilege does not relieve the health care worker of the requirement. See n. 2 supra.

      . 10 0.S. Supp.1995 § 1073, provides, in part:
      A. 1. Every:
      a. physician or surgeon, including doctors of medicine and dentistry, licensed osteopathic physicians, residents and interns, examining, attending or treating a child under the age of eighteen (18) years,
      b. registered nurse examining, attending or treating such a child in the absence of a physician or surgeon,
      c. teacher of any child under the age of eighteen (18) years, and
      d. other person,
      having reason to believe that a child under the age of eighteen (18) years is a victim of abuse or neglect, shall report the matter promptly to the Department of Human Services. Such reports may be made by telephone, in writing, personally or by any other method prescribed by the Department. Any report of abuse or neglect made pursuant to this section shall be made in good faith.
      "hook ob
      3. No privilege or contract shall relieve any person from the requirement of reporting pursuant to this section.

      . Section 7106(4) also provides for notice and hearing whenever DHS seeks access to mental health records and states that access to mental health records does not constitute a waiver of confidentiality.

      . The therapist testified to his treatment of Mother. She was afraid she may have hurt her child, although she later described the incident as an accident. Mother was diagnosed with generalized anxiety syndrome. She had a history of childhood abuse, and her mother and step-father had a history of mental illness. The therapist did not think Mother was a danger to her children. The medical record from 1993 described a variety of mental problems including homicidal idea-tions relating to Mother's 19 month old daughter.

      . 12 O.S. Supp.2000 § 2803.1(A)(1), provides in part: The court finds, in a hearing conducted outside the presence of the jury, that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors: the spontaneity and consistent repetition of the statement, the mental state of the declarant, whether the terminology used is unexpected of a child of similar age or of an incapacitated person, and whether a lack of motive to fabricate exists.