author: CAROL M. HANSEN, Presiding Judge.

text:
    2002 OK CIV APP 110
    PRAIRIE EXPLORATION and Darryl F. Roberts, Petitioner/Appellees, v. TRI-STAR ENERGY, L.L.C., Respondent/Appellant.
    No. 97,366.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 4, 2002.

      Darryl P. Roberts, Ardmore, OK, for Petitioner/Appellees.
    Charles B. Davis, Oklahoma City, OK, for Respondent/Appellant.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

. ¶ 1 Respondeni/Appellant, Tri-Star Energy, L.L.C. (Tri Star), seeks review of orders of the Oklahoma Corporation Commission enforcing the gas gathering statutes, 52 O.S. 1991 § 21 et seq. We decline to review the Commission’s interim order, reverse its emergency order as outside its authority, and affirm its final order directing Tri-Star to provide Petitioner/Appellees, Prairie Exploration Company and Darryl F. Roberts (collectively Prairie), with access to Tri-Star’s gathering system at a gathering fee of $.0584 per mmbtu.

¶2 Prairie petitioned the Commission for relief under 52 O.S.Supp.1999 § 24.5, alleging Tri-Star, as gatherer, had refused Prairie access to its pipeline in violation of the statute. Prairie sought interim relief allowing it access to the pipeline during the pendency of the case. After a hearing on the application for interim relief, the parties reached an agreement allowing Prairie access to TriStar’s system at $.10 per mcf for a period of 120 days. Tri Star’s counsel was present when Prairie’s counsel stated the agreement for the record. The Commission entered an interim order imposing the agreed terms. Soon after the interim order expired, the Commission entered an agreed order extending its effectiveness until further order of the Commission.

¶ 3 Several months later, Prairie applied for an emergency order, alleging Tri-Star’s manager was interfering with Prairie’s operations. Tri-Star moved to vacate, amend, or modify the interim order. After a hearing on both motions, the Commission entered an emergency order, over Tri-Star’s objection, allowing Prairie to repair and restore, at Tri Star’s expense, valves and lines disrupted by Tri-Star. It ordered Tri-Star to return to Prairie equipment Tri-Star had removed. It also allowed Prairie to repair and restore lines necessary to gather gas from certain wells listed in the interim order.

¶ 4 Before the hearing on the merits, TriStar moved to dismiss the action, alleging it had given thirty days notice of its intent to abandon its gathering facilities. After the hearing on the merits, at which Tri-Star put on no evidence, the Commission issued its final order, directing Tri-Star and Kirkpatrick to provide Prairie access to the gathering system at a gathering fee of $.0584 per mmbtu. Tri-Star appeals from this order.

¶ 5 Tri-Star contends (1) implementation of the Commission’s oi'der constitutes an uncompensated taking of private property, (2) the Commission’s action violates its statutory authority in 52 O.S.Supp.1999 §§ 24.4 and 24.5, (3) the Commission exceeded its jurisdiction by authorizing use of the gathering system by Prairie, and (4) Tri-Star has been denied equal protection under the law. TriStar asks this Court to vacate all orders of the Commission issued in this matter.

[1]¶ 6 Appeals from Commission orders under the gas gathering statutes are allowed “as now provided by law for appeals in other cases.” 52 O.S.1991 § 34. While the interim and emergency orders in this case may have been appealable pursuant to 12 O.S.1991 § 952(b)(3), Tri-Star’s failure to appeal those orders does not preclude it from asserting error in them after the final order is rendered. However, in order to preserve error, Tri Star must have made known its objection to the lower tribunal at the time of its ruling. 12 O.S.1991 § 630. Tri Star raised no objection to the interim order at the time the Commission entered it. Therefore, it preserved no error arising from the Commission’s action in entering the order.

¶ 7 The emergency order in this case materially affected a substantial part of the merits of the controversy. It stated it was effective until further order of the Commission. The final order did not modify the emergency order. Therefore, the emergency order is reviewable along with the final order.

¶ 8 The usual standard of review for a Commission order is whether the Commission has regularly pursued its authority and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Okla. Const. Art. 9, § 20. However, if the appellant asserts violation of its constitutional rights, this Court must exercise its own independent judgment as to both the law and the facts. Id. TriStar has asserted violation of its rights to due process and equal protection; therefore, we will exercise de novo review. Anderson-Prichard Oil Corp. v. Corporation Comm’n, 1951 OK 234, 205 Okla. 672, 241 P.2d 363, 368.

¶ 9 The gravamen of Tri-Star’s appeal is the Commission unlawfully allowed Prairie to isolate and take control of Tri Star’s pipeline. It argues this action violated its right to due process by taking its private property for private use in violation of Okla. Const. Art. 2, § 23. It argues the gas gathering statutes, 52 O.S.Supp.1999 §§ 24.4 and 24.5, do not authorize the Commission to transfer possession and control of Tri-Star’s system to Prairie, and the Commission exceeded its jurisdiction in so doing. Lastly, Tri-Star contends the Commission allowed Prairie to operate beyond the authority in existing orders and faded to require Prairie to comply with the emergency order. It argues this action violated its right to equal protection by enforcing the law against one litigant but not the other.

¶ 10 Prairie does not address whether it exerted control over Tri-Star’s pipeline. Rather, it argues Tri-Star agreed to the interim order, employed a ruse to attempt to defeat the Commission’s jurisdiction, and failed to proceed in good faith. In addition, it argues the gas gathering statutes are a constitutional exercise of police power.

¶ 11 The transportation of natural gas by pipelines is regulated by 52 O.S.1991 §§ 21 to 34 (Pipeline Act). The Legislature amended the Pipeline Act in 1999 to repeal § 24.3 and replace it with §§ 24.4 and 24.5. Okla.Sess.Laws 1999, c. 317, §§ 2 and 3. Section 24.4 defines terms used in § 24.5. The latter section prohibits a gatherer from imposing unfair, unjust, unreasonable, or unduly discriminatory fees and terms of service. 52 O.S.Supp.1999 § 24.5(A). It grants the Commission the authority to remedy such fees or terms by ordering an adjustment. 52 O.S.Supp.1999 § 24.5(A)(1). It also prohibits a gatherer from “refusing] to provide open access natural gas gathering, including the redelivery of such natural gas to existing redelivery points, for a fee for any person seeking such gathering,” subject to certain exceptions which depend upon whether or not the natural gas is already connected to the gatherer’s pipeline. 52 O.S.Supp.1999 § 24.5(B) and (C). The Commission has authority to determine, if a gatherer has refused service, and if so, to fix the fee and terms for such gathering.

¶ 12 The Commission is a tribunal of limited jurisdiction. Burmah Oil & Gas Co. v. Corporation Commission, 1975 OK 138, 541 P.2d 834, 835. It has no power to adjust the rights between private parties except as granted by the Oklahoma Constitution and statutes. Id. at 836. The Commission’s authority to enforce the Pipeline Act is limited to that granted by the act itself. In 52 O.S.1991 § 34, the Commission is “authorized and empowered to enforce all the provisions-of this act ... except where jurisdiction is conferred on some other branch of the state government by the Constitution of this state.” :

¶ 13 While § 24.5 does not specify a remedy for the violation of Commission orders entered in its enforcement, other sections of the- Pipeline Act provide remedies for its violation. Pursuant to 52 O.S.1991 § 25, the Commission may prevent a violator from operating any gas wells, leases, holdings, or interests. In addition, the Pipeline Act provides a criminal penalty for its violation; however, “the court of competent jurisdiction of the county in which the ... violation .. has occurred,” not the Commission, has jurisdiction to impose the criminal penalty. 52 O.S.1991 § 31. The Pipeline Act also authorizes the Commission to recommend to the Attorney General that a corporation in violation of the act be placed in receivership. 52 O.S.1991 § 32. Within ten days- of receiving the Commission’s recommendation, the Attorney General must file a petition in district court for appointment of a receiver. The statute further provides,

The receiver, when appointed, shall immediately take charge of .all the business, property and assets of such corporation in the state and shall retain possession thereof until it shall be determined upon the trial whether or not such corporation has violated the provisions of this act, then, in addition to the other penalties herein provided, all the property of said corporation shall be retained under such receivership until the penalties incurred hereunder are paid, after which the receivership may be discharged upon such terms and conditions as the court may impose as an assurance for the further compliance with this. act.

Id.

¶ 14 The Commission exceeded its authority under the Pipeline Act in entering its emergency order allowing Prairie to repair and restore Tri-Star’s valves and lines. It had jurisdiction to order access and set a fee, but it could not remedy Tri-Star’s violation by allowing Prairie to exercise control over Tri-Star’s property. Only the district court may effect such a remedy by ordering a receivership. Therefore, we must reverse the emergency order. Because we reverse the emergency order based on its being in excess of statutory authority, we need not consider whether it violated Tri-Star’s constitutional rights.

¶ 15 The Commission’s final order was within its authority and well supported by the evidence. Prairie’s evidence established Tri-Star was a gatherer within the meaning of §§ 24.4 and 24.5 and had refused Prairie access to its pipeline in violation of § 24.5. Therefore, the Commission properly determined Tri-Star was required to provide open access natural gas gathering to Prairie. The testimony of Prairie’s expert witness established the reasonableness of the gathering fee. Tri-Star has not challenged the amount of the fee, and the actions which it complains violated its constitutional rights arise only from the emergency order and not from the final order. Accordingly, we leave the final order undisturbed.

¶ 16 For the foregoing reasons, we REVERSE the Commission’s emergency order and AFFIRM its final order.

ADAMS, J., and MITCHELL, J., concur.

      . MmBtu = one million British thermal units.

      . Prairie initially named William Kirkpatrick as respondent. It later added Tri-Star as a party and dismissed Kirkpatrick.

      . Mcf = one thousand cubic feet. 1 mcf of gas = 1.03 mmBtu.

      . The record contains no motion seeking to join Kirkpatrick as a party again following his dismissal.


source: Caselaw Access Project

author: KEITH RAPP, Judge.

license: Public Domain

text:
    2004 OK CIV APP 12
    FABSCO SHELL & TUBE LLC and National American Ins. Co., Petitioners, v. Michael Steve EUBANK, Zeeco, Inc., and The Workers’ Compensation Court, Respondents.
    No. 98,414.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 12, 2003.
    Rehearing Denied Sept. 29, 2003.
    Certiorari Dismissed Jan. 5, 2004.

      John G. Barnhart, Layman, Padgett & Barnhart, Tulsa, OK, For Petitioners.
    Gus Farrar, Tulsa, OK, For Respondent Eubank.
    James Durant, Tulsa, OK, For Respondent Zeeco, Inc.
   Opinion by

KEITH RAPP, Judge.

¶ 1 Petitioners, Fabsco Shell & Tube LLC and its insurer (Employer) appeal a decision by the Workers’ Compensation Court Three-Judge Panel (Panel) in favor of Michael Steve Eubank (Claimant) and his former employer, Zeeco, Inc. (Zeeco) awarding Claimant permanent partial disability (PPD) benefits for cumulative hearing loss. The Panel affirmed the trial judge’s assessment of the entire responsibility for the benefits to Employer.

BACKGROUND

¶ 2 Claimant sustained a hearing loss after long-term exposure resulting in PPD. The last exposure to the cause of the injury occurred while he was employed with Employer. He had worked for Employer for about a year and seven months. Prior to that he worked for Zeeco for just over three years. Prior to his employment with Zeeco he worked for a company named AGC for one year and prior to that he had worked for Employer.

¶ 3 Claimant’s occupation as a fitter welder exposed him to industrial noise. He experienced progressive loss of hearing leading to the present claim. Medical reports in evidence reached conflicting conclusions as to the degree of hearing loss. However, none of the reports attributed the total hearing loss to the last exposure during employment with Employer. Two of the reports apportioned the loss among the last periods of employment.

¶ 4 Zeeco had been a party to the proceedings but was dismissed by the trial court over objection of Employer. Zeeco did not appeal that dismissal nor did it appeal any decision by the trial judge or the Panel. Thus, Zeeeo’s request for relief in this matter is denied.

¶ 5 The trial judge attributed the total responsibility for payment of benefits to Employer pursuant to statute. 85 O.S.2001, § 11(B)(5). Petitioners appealed to the Panel, which affirmed. Employer appeals.

STANDARD OF REVIEW

¶ 6 Employer’s appeal presents questions of law. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. If an appeal asserts a violation of constitutional rights, the appellate court will exercise its own independent judgment, if it becomes necessary to determine the constitutional question. Ranola Oil Co. v. Corporation Commission of Oklahoma, 1988 OK 28, ¶ 7, 752 P.2d 1116, 1118. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court’s ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

A. Constitutionality of 85 O.S.2001, § 11(B)(5)

¶ 7 Employer’s principal argument presented here asserts that Section 11(B)(5), the “last injurious exposure rule,” violates constitutional guarantees of Equal Protection of Laws and Due Process because it sets up classifications of employers and treats them disparately all without rational basis or advancement of a legitimate state interest. Both sides agree that the statute sets up a classification of employers.

¶ 8 Employer acknowledges that its argument has not been accepted in a number of eases beginning with Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2nd Cir.1955). The cases upholding the rule reason that it satisfies two problems pertinent to exposure injuries. These are: (1) proof; and (2) assignment of responsibility. In re Runft, 303 Or. 493, 739 P.2d 12 (1987). Employer further acknowledges that the rational basis test applies.

¶ 9 The Employer’s assertion before the trial court is that neither of the premises for upholding the statute can be found to support a permissible state interest and thus must be rejected. The proof problem existed below, and Employer has not demonstrated that, as a general matter in other cumulative trauma cases, the proof problem is nonexistent. The assignment of responsibility to the last employer satisfies a rational basis because it provides a definite measure of relief to the worker. See Rivas, 2000 OK 68 at ¶ 12, 12 P.3d at 456. The classification here is far less arbitrary than the classification upheld in Rivas and the rationale of Rivas, applied here, results in the statute being found to pass constitutional challenge.

¶ 10 This conclusion resolves Employer’s claim that Zeeco should not have been dismissed from this action. The claim that Zee-co should bear a proportion of the claim is also resolved by this conclusion. Employer’s assertion that Claimant’s hearing loss is, in part, not work-related is not supported by the medical reports.

B. Conflict Between Section 11(B)(5) and Other Provisions

¶ 11 Employer next asserts Section 11(B)(5) conflicts with other provisions of the Act. Specifically, Employer argues that:

1. Section 11(B)(5) permits impairment otherwise excluded by Section 22(7) pertaining to aggravation of a pre-ex-isting disability or impairments and allowing only incremental benefits;
2. Section 11(B)(5) does not serve the goal of providing limited and certain monetary exposure to employers;
3. Section 11(B)(5) permits any claimant to avoid the notice and statute of limitations provisions of the Act; and
4. Section 11(B)(5) expands the liability of the insurer to time periods beyond that provided in the Act.

¶ 12 Review of this argument incorporates the rule that statutes are to be construed to achieve harmony with each other rather than conflict whenever possible. Sharp v. Tulsa County Election Bd., 1994 OK 104, ¶ 11, 890 P.2d 836, 840.

1. Conflict With Section 22(7)

¶ 13 The conflict contention was addressed and rejected in Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 814 P.2d 629 (1991). There the Court characterized the Washington equivalent of Section 22(7) as a “segregation of prior disabilities” provision. The Court distinguished those provisions from the “last exposure” rule. The Court reasoned that the “segregation of prior disabilities” dealt with the amount of award whereas the “last exposure” rule dealt with responsibility for the award. The Court noted that the Washington scheme did allow for apportionment in other instances so that the inference was that its legislature intentionally refused to provide for apportionment in the cumulative trauma, last exposure situation.

V14 This Court finds that the Weyerhaeu-ser Co. decision is here persuasive. Consequently, this Court rejects the argument that the last exposure rule of Section 11(B)(5) conflicts with Section 22(7).

2. Conflict With Goals of Act

¶ 15 Weyerhaeuser Co. also addresses this argument concerning conflict with the goals of the Act. Weyerhaeuser Co., 814 P.2d at 632-33. The Court observed that providing limited and certain monetary exposure to employers was one goal of the workers’ compensation scheme, but not the only one. The “last exposure” rule does serve the goal of providing the injured worker a swift and sure remedy. Moreover, as the Court stated, the averages over time will spread through the employer class, so that even though a single instance may seem unfair where the employer is bearing a full responsibility, such is not the case when the entire work force and employer community is considered over time. Correction of any specific inequities was deferred to the legislature. Again, this Court finds the rationale of Weyerhaeuser Co. to be persuasive.

3.Avoidance of Notice and Limitations

¶ 16 Implicit in Employer’s argument in this area is the assumption that the notice and limitation period begins on an awareness of injury date. Employer’s argument fails to account for the fact that a cumulative trauma injury is a single injury for purposes of notice and limitations. Southwest United Industries v. Polston, 1998 OK 78, ¶ 7, 964 P.2d 210, 212. The date of last exposure applies. Southwest United Industries, 1998 OK 78 at ¶ 7, 964 P.2d at 212. Thus, no conflict exists in this category.

4.Expansion of Insurer Liability

¶ 17 Employer’s argument concerning liability expansion maintains that the insurer’s liability is extended beyond the periods specified in Sections 65.2 and 65.3. These provisions relate to coverage and enforcement of the workers’ compensation insurance.

¶ 18 The underlying argument is that the risk assumed or covered has not been compensated for in the premiums charge. Neither of these Sections purport to limit or prescribe the amount of premium that can be charged to compensate for the risk of having to compensate an injured worker who suffers a cumulative trauma injury and who becomes entitled to compensation during the period of employment covered by the insurance in force at the time. Thus, Employer has failed to demonstrate a conflict for which relief can be granted.

5. Conflict With Section 47.T

¶ 19 Section 47.1 permits waiver of aggravation of condition compensation for pre-existing silicosis or asbestosis that may result from continuing employment in the same occupation. Employer argues, without authority, that the absence of a similar provision in Section 11(B)(5) creates an inequality of treatment and inconsistency in the Act. Assuming, without deciding, that an inequity exists, the inequity falls on the shoulders of the worker more so than the employer and its insurer who are benefitted by the waiver.

¶20 Moreover, Employer has not demonstrated that the promotion of employment opportunities purpose of Section 47.1, or the apparent corresponding absence thereof for any other occupational disease or cumulative trauma situation, fails to meet the standard of the “rational basis” test as reviewed in Rivas. Thus, this Court finds no irreconcilable conflict in this category.

SUMMARY AND CONCLUSION

¶21 The Employer’s argument that Section 11(B)(5), the “last injurious exposure rule,” violates constitutional guarantees of Equal Protection of Laws and Due Process because it sets up classifications of employers and treats them disparately all without rational basis or advancement of a legitimate state interest on analysis is not valid and must fail. Further, using the rational basis test, the statute is upheld. Additionally, examination of Employer’s sundry claims that the provisions of Section 11(B)(5) are in conflict with other provisions of the Act and the purposes and goals of the Act are unfounded. This Court’s review determines that Section 11(B)(5) does not present such conflicts. Therefore, the decision of the Three-Judge Panel is sustained.

¶ 22 SUSTAINED.

GOODMAN, P.J., and REIF, J., concur.

      . The statute provides:
      B. Liability of any person, firm, or corporation having an interest in the subject matter, employers and contracting employers, general or intermediate, for compensation under the Workers’ Compensation Act, when other than the immediate employer of the injured employee, shall be as follows:

      5. Where compensation is payable for an in-juiy resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to tire trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier. If there is no employer in whose employment the employee was injuriously exposed to the trauma for a period of at least ninety (90) days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, with right to contribution from any prior employer or insurance carrier.

      . Subject to employment periods not involved here, the class consists of all employers who employ persons exposed to cumulative trauma. The classification then separates the last employer from the class and assigns it full responsibility for the claim. On the other hand, all workers sustaining cumulative trauma are treated the same.

      . Under the rational basis test, legislation may draw certain classifications among individuals or groups of individuals, if those classifications are not arbitrary and capricious and bear some reasonable or rational relationship to a permissible public policy or goal. There must be relevance to the purpose for which the classification is made. Rational .basis is the lowest standard of scrutiny applied in equal protection analysis and is used when the classification does not jeopardize the exercise of a fundamental right or make a classification based upon an inherently suspect characteristic. A strong presumption exists in favor of legislative enactments. The statute will be upheld unless it is "clearly, palpably, and plainly inconsistent with fundamental law.” Rivas v. Parkland Manor, 2000 OK 68, ¶ 8, 12 P.3d 452, 456

      . Section 22(7) of the Act provides:
      (7) Previous Disability. The fact that an employee has suffered previous disability or impairment or received compensation therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease; but in determining compensation for the later accidental personal injury or occupational disease the employee's average weekly wages shall be such sum as will reasonably represent the employee’s earning capacity at the time of the later accidental personal injury or occupational disease. In the event there exists a previous impairment which produced permanent disability and the same is aggravated or accelerated by an accidental personal injury or occupational disease, compensation for permanent disability shall be only for such amount as was caused by such accidental personal injury or occupational disease and no additional compensation shall be allowed for the pre-existing disability or impairment. The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers’ Compensation Act if otherwise eligible as provided in the Workers' Compensation Act.

      . The facts do not involve a situation with a single employer, but with successive insurers, and whether contribution or apportionment should occur. This Court does not address that situation here.

      . Section 65.2 provides:
      Every employer and every insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a Worker's Compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the Worker's Compensation Law by reason of or upon the basis of the employment of any such employee shall be estopped to deny that such employee was employed by the employer in a hazardous employment subject to and covered by the Worker's Compensation Law if such person receives an accidental personal injury arising out of and in the course of his employment, during the period for which such premium was so received, regardless of the 1ype of business in which the employer was engaged or the type of employment in which the employee was engaged at the time of such injury.
      Section 65.3 provides:
      Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Worker's Compensation Act shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy for the payment of benefits as provided by the Worker's Compensation Act regardless of the type of business in which the employer of such person is engaged or the type of work being performed by the employee at the time of any injury received by such employee arising out of and in the course of his employment, which contract may be enforced by such employee as the beneficiary thereof.

      . Section 47.1 provides:
      Where an applicant for employment, though not actually disabled, is found to be affected by silicosis or asbestosis, he may, subject to the approval of the State Industrial Commission, be permitted to waive in writing full compensation for any aggravation of his condition that may result from his continuing in his hazardous- occupation. In the event of total disablement as a result of the disease with which the , employee was so affected, after such a waiver, compensation shall nevertheless be payable as herein elsewhere provided, but in no case for longer than one hundred (100) weeks or to exceed Two Thousand ($2,000.00) Dollars in the aggregate. A waiver so permitted shall remain effective, for the trade, occupation, process or employment for which executed, notwithstanding a change or changes of employer. The Commission shall make reasonable rules and regulations relative to the form, execution, filing or registration and public inspection of waivers or records thereof.


author: KENNETH L. BUETTNER, Judge.

text:
    2004 OK CIV APP 15
    CHEROKEE INDUSTRIES, INC. and CNA Insurance Company, Petitioners, v. Isac ALVAREZ and The Workers’ Compensation Court, Respondents.
    No. 99,173.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 23, 2003.
    Certiorari Denied Jan. 20, 2004.

      James Leo Gaston, Jr., McGivern, Gilliard & Curthoys, Oklahoma City, OK, for Petitioners.
    E.W. Keller, Keller, Keller & Dalton, Oklahoma City, OK, for Respondent Isac Alvarez.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 Isac Alvarez worked as a cleaner for Cherokee Industries, Inc. He first injured his back while working for Cherokee Industries September 6, 2001. He re-injured his back December 13, 2001 and March 20, 2002 in the course of his employment. He first filed his workers’ compensation claim July 17, 2002 and re-filed September 3, 2002 to include the third injury. As the claim progressed, it was discovered that Alvarez was an unauthorized (falsely documented) alien worker. Cherokee Industries then argued that no benefits should be paid. The Workers’ Compensation Court awarded Alvarez temporary total disability benefits and reserved the question of permanent disability. We sustain.

¶ 2 Petitioners first contend that Alvarez is an illegal alien who provided false documents to procure his employment in violation of the Immigration Reform and Control Act of 1986 and that therefore the employment contract was void ab initio, depriving Alvarez of entitlement to any benefits under the Workers’ Compensation Act. They next argue that even if they are estopped from asserting their first contention as a defense, that Alvarez is not entitled to TTD benefits, citing Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). Finally, Petitioners complain that even if Alvarez is entitled to TTD benefits, the TTD period should have been terminated at an earlier date.

¶ 3 With respect to the first allegation of error, the Oklahoma’s Workers’ Compensation Act does not exclude alien workers from coverage. As stated in Lang v. Landeros, 1996 OK CIV APP 4, 918 P.2d 404, workers’ compensation did not exist under common law so that the award of benefits is determined by statute. The Act has exceptions, for example, some sole proprietors, but it does not except illegal aliens or undocumented workers. “This Court may not legislate exceptions or exclusions. This is a matter to be addressed by the Legislature.” Id. at ¶ 5, p. 405:

¶ 4 Other states that have addressed this issue have likewise held that the mere status of illegal alien does not deprive an employee of all workers’ compensation benefits. In Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn.2003), the Minnesota Supreme Court held that the Immigration Reform Control Act of 1986 (IRCA) did not preclude an illegal alien from receiving temporary total disability payments. IRCA describes an unauthorized alien as a person who is neither lawfully admitted to the United States for permanent residence nor authorized by law to work. 8’ U.S.C-. § 1324a(h)(3)(2000). Correa was injured while working for Waymouth Farms as a candy order picker. His employer covered his surgery expenses, wage loss benefits, and provided rehabilitation services. Correa was released to work, but with restrictions to light duty. Approximately one year after the injury, Waymouth' Farms notified Correa that the Immigration and Naturalization Service had discovered that his alien registration number did’ not exist and his social security number was not a match. Correa was given forty-eight hours to provide valid documentation. He could not and his employment was terminated. Shortly thereafter, Waymouth Farms filed a notice of intention to discontinue Correa’s temporary total disability benefits on the ground that he was medically released to work (restricted to light work) but could not, as an unauthorized alien, legally work in the United States. Pursuant to Minnesota law, TTD ceases if the total disability ends and the employee fails to diligently search for appropriate work within his physical restrictions. M.S.A. § 176.101(g). The Correa Court stated, with respect to the argument of legal impairment, that IRCA does not prohibit unauthorized aliens from seeking or accepting jobs. It prohibits them from tendering fraudulent documents. The Minnesota Court also concluded that the Minnesota legislature could have, but did not, exclude aliens. “Applying the Act as it is written, ‘aliens,’ whether authorized or unauthorized, are employees and thus are subject to the Act’s provisions.” Id. at 330.

¶ 5 Addressing a public policy argument for denying workers’ compensation benefits to an unauthorized worker who was struck in the head by a steel beam, the Supreme Court of Pennsylvania, in The Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa.464, 810 A.2d 99 (2002), held that “... the Act is the legislature’s ‘definitive pronouncement of the law governing remedies for work-related injuries .... ’ ” Id. at 105 ... “Thus, consistent with our long-held view, we will not, in the face of the Act, consider announcing public policy with respect to the receipt of workers’ compensation benefits by unauthorized aliens. To do otherwise would be an exercise in judicial legislation, which we will not undertake.” Id. In Pennsylvania, however, when an employer moves to suspend benefits, it carries the burden of showing several things, among them, job availability. Astu-dillo was medically determined to be able to work, but with restrictions of avoiding climbing ladders and scaffolding and lifting no more than twenty-five pounds. Reinforced Earth argued that Astudillo’s disability was not due to his work-related injury but to his inability to work lawfully. Under Pennsylvania law, the extent of an employee’s disability is related both to capacity to work and availability of work. The Pennsylvania Court agreed that Astudillo’s loss of earning power was caused by his immigration status, not his injury. Therefore, the lower tribunal erred in requiring Reinforced Earth to prove “job availability” in order to prevail on a suspension of benefits motion. It remanded the case for determination of suspension.

¶ 6 Nevada has taken the view that IRCA may foreclose certain benefits under its workers’ compensation law. In Tarango v. State Industrial Insurance System, 117 Nev. 444, 25 P.3d 175 (2001), Tarango injured himself when he fell from a ladder while putting up drywall. He was released to work with restrictions. Because the restrictions precluded his former employment, his doctor recommended vocational rehabilitation. He was awarded permanent partial disability (PPD) benefits in June 1997. As part of his application for vocational rehabilitation benefits, Tarango was required to submit INS Form 1-9, alien’s proof of legal right to work in the U.S. Tarango failed to satisfy the requirement and the State Industrial Insurance System (SIIS) suspended his vocational rehabilitation benefits, but not his PPD. The Nevada Court agreed that the workers’ compensation laws applied to all workers, regardless of immigration status. However, the purpose of rehabilitation benefits is to return the worker to the workplace. It held that by requiring rehabilitation benefits, SIIS would be forced to violate Nevada law which requires the insurer to return the worker to his former job; to a job with the same employer with accommodations; to employment with a different employer using his existing skills; or provide training in another vocation. Because IRCA makes it illegal for an employer to employ an unauthorized worker, SIIS would be forcing the employer to violate federal law.

¶ 7 In Oklahoma, “[t]he purpose of temporary disability benefits is to replace wages lost during an employee’s healing period.” B.E. & K. Construction v. Abbott, 2002 OK 75, 59 P.3d 38, fn. 3. Disability must derive from injury which is defined at 85 O.S. Supp.1997 § 3(10)(a):

“Injury” or “personal injury” means only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally result therefrom and occupational disease arising out of and in the course of employment as herein defined. Only injuries having as their source a risk not purely personal but one that is causally connected with the conditions of employment shall be deemed to arise out of the employment.

¶ 8 Our law provides that an employee is any person engaged in the employment of any person under an agreement for work. Being unauthorized does not change the fact that Alvarez was an employee at the time of his injuries.

¶ 9 Next, Petitioners argue that Alvarez is not entitled to TTD benefits pursuant to Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). In that case, the National Labor Relations Board had awarded back pay to a worker who was fired for supporting union organizing activities. At the administrative hearing for reinstatement and for determination of amount of back pay, the worker testified that he had never been legally admitted into nor authorized to work in the U.S. The United States Supreme Court found tension between IRCA and the NLRB:

We therefore conclude that allowing the Board to award back pay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award.

535 U.S. at 151,122 S.Ct. at 1284-1285.

¶ 10 IRCA makes employers criminally liable for knowingly hiring an unauthorized alien, or • continuing to employ the worker after the status is discovered. The unauthorized worker also faces criminal penalties if he tenders fraudulent documents to the employer. The Supreme Court held that while employer conduct with respect to illegal aliens was covered by the National Labor Relations Act, that benefits awarded by the NLRB may be circumscribed by IRCA.

11 We do not disagree with this approach, i.e., that illegal aliens are covered by the Workers’ Compensation Act, but that certain benefits may not be available because of a claimant’s illegal status. Cherokee Industries argues that allowing an illegal alien’s claim, at all, would ignore and trivialize IRCA, and condone and encourage further criminal conduct by allowing a claimant to remain in the state and receive treatment and money as a result of his fraud. We do not believe allowing compensation for on the job injuries has such affect. Nor does the Workers’ Compensation Court have the authority to determine Alvarez’s ability to remain in this country. Some benefits, such as vocational rehabilitation or medical treatment by specific physicians may not be available to a claimant who cannot stay in this country. However, Alvarez is covered by the Workers’ Compensation Act.

¶ 12 Further, Cherokee Industries admitted that Alvarez was covered by its workers’ compensation insurance policy. Pursuant to 85 O.S.2001 § 65.2, Employer is estopped from denying that Alvarez was in its employ at the times of the industrial accidents.

¶ 13 Finally, Cherokee Industries claims that if Alvarez is entitled to TTD, the period should have been terminated in April 2002, or November 2002, as stated by the Independent Medical Examiner, or July 3, 2002, the date that Alvarez gave notice of his unauthorized status, resulting in his “for cause” termination from employment. The Workers’ Compensation Court found that Alvarez was temporarily totally disabled and was still TTD on the date of the order and that he should receive compensation during his period of disability not to exceed fifty-two weeks. “When this Court examines the compensation tribunal’s factual resolutions, we apply the any-competent-evidence standard. Whenever conflicting or inconsistent inferences may be drawn from undisputed facts, the issue is not one of law but rather of fact. The trial judge’s non-jurisdictional findings may not be disturbed on review if supported by competent proof. It is only in the absence of competent evidence that a trial tribunal’s decision may be viewed as erroneous as a matter of law and hence subject to appellate vacation.” Hughes v. Cole Grain Company, 1998 OK 76, ¶ 6, 964 P.2d 206, 208. There is medical evidence from an examination in October 2002 which found Alvarez TTD. In a follow-up examination March 29, 2003, the doctor described continuing complaints and recommended surgery. There was competent medical evidence to support the trial court’s order and we will not disturb the factual finding of TTD. Under the facts presented, the fact that Alvarez’ employment was terminated by the employer does not impact the order. See B.E. & K Construction v. Abbott, 2002 OK 75, 59 P.3d 38.

¶ 14 The Order of the Workers’ Compensation Court is SUSTAINED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . 85 O.S. Supp.1997 § 3(6), in part: "Employee” means any person engaged in the employment of any person, firm, limited liability company, or corporation covered by the terms of the Workers' Compensation Act, and shall include workers associating themselves together under an agreement for the performance of a particular piece of work, in which event such persons so associating themselves together shall be deemed employees of the person having the work executed; ...
      The 2001 amendments to this section resulted in this paragraph being renumbered to 85 O.S. 2001 § 3(8).

      . "The concept of temporary total disability is primarily dependent upon the employee's ability to find and hold a job, not his physical condition.” Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 134 (1967). Oklahoma does not have a requirement that workers who have been medically released with restrictions diligently search for work while receiving TTD benefits. Rather, if a worker is released to light duty, the employer has the burden of providing light duty or if the employer has no appropriate work, then the employee may continue to receive TTD benefits. See 85 O.S. Ch.4, 2001, Workers' Compensation Rule 15; Hinton v. Labor Source, 1998 OK CIV APP 2, 953 P.2d 358.

      . The Minnesota Court's decision is somewhat at odds with the U.S. Supreme Court in Hoffman which described IRCA as a "comprehensive scheme prohibiting the employment of illegal aliens in the United States." 535 U.S. at 147, 122 S.Ct. at 1282. Minnesota would require a diligent job search, which could only result in IRCA violations by either the searcher or the employer, in order to continue to receive TTD benefits.

      . For example, 85 O.S. § 6 requires reinstatement of an employee discharged in violation of § 5 (an employee may not be discharged for the good faith filing a claim, hiring an attorney, instituting a proceeding, or testifying in a proceeding). This remedy would not be available for an illegal alien.

      . 85 O.S.2001 § 65.2: Every employer and every insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a Workmen's Compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the Workmen's Compensation Law by reason of or upon the basis of the employment of any such employee shall be estopped to deny that such employee was employed by the employer in a hazardous employment subject to and covered by the Workmen's Compensation Law if such person receives an accidental personal injury arising out of and in the course of his employment, during the period for which such premium was so received, regardless of the type of employment in which the employee was engaged at the time of such injury.

      . We need not address, in this case, whether an employee on light duty could be terminated because it was discovered he was an unauthorized alien. See Akers v. Seaboard Farms, 1998 OK CIV APP 169, 972 P.2d 885.


text:
    2004 OK CIV APP 16
    Carmel Teresa Maria AMEEN, Plaintiff/Appellant, v. William Richard AMEEN, Defendant/Appellee.
    No. 98,601.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 21, 2003.
    Certiorari Denied Feb. 2, 2004.

      Matthew P. Gomez, Amanda M. Folsom, Tulsa, OK, for Plaintiffi'Appellant.
    Marshall K. Dyer, Broken Arrow, OK, for Defendant/Appellee.
   KENNETH L. BUETTNER, Judge.

¶ 1 On appeal from the decision of the Department of Human Services, the District Court held that William Richard Ameen (Father) should be given credit against his gross income for the court ordered child support for a later-born child where Carmel Ameen, Mother, sought to increase his support obligation for his first born. We affirm.

¶2 Pursuant to 56 O.S.2001 § 240.3, appeals from final administrative child support orders are governed by the OWahoma Administrative Procedures Act, 75 O.S.2001 § 318 et seq. Although a reviewing court affords great deference to agency expertise and opinions, 75 O.S, 2001 § 318(d) permits the appellate court to set aside, modify, or reverse and remand the decision if it is “affected by other error of law.”

¶ 3 The parties agree to these facts. They were divorced in 1989 and Mother was granted custody of the minor child bom June 9, 1987. Father was ordered to pay $335.23 per month for child support. An agreed modification decree was entered in 1996 adjusting the child support obligation to $293.14 per month. Both support obligations were calculated using the OWahoma Child Support Guidelines. After the divorce, Father entered another marriage and had another child. That marriage ended in divorce and on March 9, 2000, a child support obligation in the amount of $513.12 was entered for the later-born child. Mother sought help from the OWahoma Department of Human Services (DHS) because of unpaid child support. On January 9, 2002, an administrative hearing on the Motion to Modify Child Support was held. Father stipulated that he was current on his support obligations for his second child. The ALJ found as a matter of law that Father was not entitled to receive credit against his gross monthly income paid on behalf of his second child for the purpose of calculating a revised child support obligation for his first child. On appeal, the District Court reversed, holding that Father was entitled to a credit under 43 O.S. Supp. 2000 § 118(E)(5).

¶ 4 Title 43 O.S. Supp.2000 § 118(E)(5) provides:

The amount of any preexisting district or administrative court order for current child support for children not before the court or for support alimony arising in a prior case shall be deducted from gross income to the extent payment is actually made under the order;....

¶ 5 The question is whether Father is entitled to a credit under § 118(E)(5). Mother argues that the first child support order should never be affected by after-born children and subsequent child support orders. She relies on Nero v. Nero, 2002 OK CIV APP 64, 48 P.3d 127 and 43 O.S. Supp. 2002 § 118(E)(20). Section 118(E)(20) provides:

Child support orders issued for prior-born children of the payor- may not be modified for the purpose of providing support for later-born children;....

¶ 6 This section was applied in Nero where the father sought to modify a child support order for four children based upon a subsequent child support order for an after-born child. The court held at ¶ 16, p. 130:

Further, under the facts and circumstances of the present ease, any adjustment to Husband’s gross income for child support to his fifth, later-born child results in a reduction of Husband’s child support obligation to his four, prior children, and arguably, violates the spirit, if not the letter, of § 118(E)(20). We therefore reject this proposition.

¶ 7 We certainly believe that these two provisions may be read in harmony. Child support orders may not be modified solely because of after-born children. However, when one of the parties seeks to modify a prior order, the trial court must consider all of the facts and circumstances in existence at the time of the requested modification. If the payor party has incurred and is paying additional child support obligations, then § 118(E)(5) requires that they be considered. Likewise, if either parent has incurred additional support obligations for “natural, legal, or legally adopted minor children in the custody of the parent,” then that fact should also be considered under § 118(C). To hold otherwise would suggest that the Legislature intended that the first children) to receive a child support order should forever be treated as the only child(ren) of the payor parent, to the detriment of after-born children. This would be at odds with the normal rules for modification of support orders and unnecessary under the clear language of § 118.

¶ 8 We AFFIRM the order of the District Court allowing Father a credit under § 118(E)(5).

ADAMS, P.J., concurs in result, and JOPLIN, C.J., concurs.

      . The record is minimal for review purposes. Some of the information, such as the divorce decrees and the information they contained, is stipulated and admitted by the parties in their briefs. See Reeves v. Agee, 1989 OK 25, 769 P.2d 745.

      . DHS may modify child support orders in accordance with the Child Support Guidelines pursuant to 56 O.S.2001 § 240.1(A)(a)(4).

      . The ALJ raised Father’s monthly obligation to $576.74.

      . The later amendments do not change the wording or numbering of § 118(5).


author: LARRY JOPLIN, Judge.

text:
    2004 OK CIV APP 21
    TRANSWESTERN PUBLISHING, L.L.C., Plaintiff/Appellant, v. Barbara LANGDON, Defendant/Appellee.
    No. 99,855.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Jan. 23, 2004.

      Gary S. Chilton, Heidi J. Long, Holladay, Chilton & DeGuisti, Oklahoma City, OK, for Appellant.
    Jonathan E. Shook, Shook, Huggins & Johnson, P.C., and Robert S. Coffey, Tulsa, OK, for Appellee.
    Kevin M. Abel, General Counsel, John R. Brown, III, Staff Attorney, Oklahoma Department of Labor, Oklahoma City, OK, for Oklahoma Department of Labor. •
   Opinion by

LARRY JOPLIN, Judge.

¶ 1 Appellant TransWestern Publishing, L.L.C. (TWP or Employer’), seeks review of the trial court’s order dismissing its petition for review on motion of Appellee Barbara Langdon (Langdon or Employee), and, by special appearance, the Oklahoma Department of Labor (DOL), for failure to join DOL as a necessary party to the review proceeding. Having reviewed the record and applicable authorities, we find the trial court did not err, and hold the order of the trial court should be affirmed.

¶ 2 Upon conclusion of Langdon’s employment with TWP, Employer allegedly refused to pay wages Employee believed to be due, and she filed a wage claim with DOL. After investigation, DOL issued an Administrative Order of Determination awarding Employee back wages and penalties. Employer sought review before an Administrative Law Judge who entered an Agency Determination of Judgment affirming the earlier order.

¶ 3 Employer then filed its petition for judicial review of the agency order in the trial court, naming only Employee as defendant. Employee filed a motion to dismiss, asserting that Employer’s failure to join DOL, a necessary party defendant to the proceeding for review, deprived the trial court of subject matter jurisdiction. DOL specially appeared and moved to dismiss on the same grounds. The trial court granted the motions, and Employer appeals.

¶ 4 A wage dispute between an employer and employee is.the proper subject for administrative determination by the .DOL. 40 O.S. §§ 165.1, et seq, § 165.7. DOL’s determination of an employer/employee wage dispute is subject to judicial review under the Oklahoma Administrative Procedures Act, (OAPA), 75 O.S. §§ 250 et seq. 40 O.S. § 165.7(E).

¶ 5 In this respect, an OAPA proceeding for judicial review of an agency’s administrative order is commenced by filing of a petition for review in the district court within thirty days after the aggrieved party is notified of the final agency order, and timely filing of the petition for review is jurisdictional. 75 O.S. § 318(B)(2); Citizens’ Action for Safe Energy, Inc. v. Oklahoma Water Resources Bd., 1979 OK CIV APP 27, 598 P.2d 271. Upon filing of the petition for review, “[cjopies of the petition shall be served upon the agency and all other parties of record ...” 75 O.S. § 318(C). Then, “[w]ithin thirty (30) days after service of the petition for review ... the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review_” 75 O.S. § 320. Judicial review is confined to the administrative record. 75 O.S. § 321.

¶ 6 In their motions to dismiss, both Employee and DOL argued that in an action for judicial review of an agency’s administrative order under the OAPA, § 318 and § 320 expressly or implicitly required joinder of the administrative agency as a necessary party defendant, and that failure in which deprived the trial court of jurisdiction to review the agency determination. Compare, Oklahoma Employment Sec. Com’n v. Carter, 1995 OK 74, ¶¶ 11, 13, 903 P.2d 868, 871. In response, Employer argued that the OAPA did not specifically mandate joinder of the administrative agency as a party defendant, and that § 318 required service of the petition on the administrative agency only as the vehicle to obtain transmission of the administrative record to the court pursuant to § 320.

¶7 Section 318(C) requires service of the petition for review “upon the agency and all other parties of record.” (Emphasis added.) By the use of the conjunction, “and,” between “agency” and the phrase, “all other parties of record,” we believe the Legislature plainly expressed its intent to treat the “agency” as a necessary “party” among all “other” necessary “parties” to review proceedings under the OAPA. We are bolstered in this conclusion by § 318(D), which allows an award of costs and attorney’s fees to the agency if the action for review is determined to be “frivolous or was brought to delay- the effect of said final agency order,” because we know of no authority under the OAPA permitting an award of fees and costs to a non-party. See also, Midwest Financial Corp. v. Equity Holding Co., 2000 OK CIV APP 108, 12 P.3d 475.

¶ 8 We accordingly hold the administrative agency is a necessary party defendant in proceedings for judicial review of the agency’s order under the OAPA. We further hold that failure to timely file the petition for review of an agency order naming all necessary party defendants constitutes a jurisdictional defect and renders the action subject to dismissal. The trial court so found, and we hold the order of the trial court should be and hereby is accordingly AFFIRMED.

HANSEN, J., and MITCHELL, P.J., concur.

      . This appeal stands submitted for accelerated appellate review on the trial court record under Rule 4(m), Rules for District Courts/ 12 O.S. 2001, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App.

      . Section § 2-610 of title 40, O.S., "provides that the [Oklahoma Employment Security] Commission shall be named a codefendant,” and "[w]hen the ten-day appeal period provided in 40 O.S. § 2-610 has run without all necessary parties being named, the district court is without jurisdiction” to entertain a petition for review of an OESC decision; held, writ of prohibition granted.

      . Held, no statutory basis for award of attorney fees and costs incurred by a party in responding to a nonparty’s motion to quash a subpoena.


text:
    2003 OK JUD ETH 3
    JUDICIAL ETHICS OPINION 2003-3
    Oklahoma Judicial Ethics Advisory Panel.
    May 12, 2003.
   QUESTION 1:

¶ 0 Can Administrative Law Judges appear at Commission “en banc” proceedings for the purpose of answering questions regarding their proposed orders or reports regarding a hearing that they have conducted?

QUESTION 2:

¶ 1 If the answer to Question 1 is affirmative, are there any restrictions on the actions of the Administrative Law Judge at these Commission proceedings?
¶ 2 FACT SITUATION:
1. The judge inquiring is employed by the Oklahoma Corporation Commission and as such, is assigned to hear public regulatory-cases which involve highly sensitive matters in which the Commission “en bane” has great interest in the out-eóme.
2. An amendment to the Commissions Rules of Practice 165:5-13-4(e) provides: “Upon request by a Commissioner, an Administrative Law Judge shall appear at any scheduled signing agenda, Commission hearing or public deliberation to respond to questions from the Commissioners concerning the proposed order or report of the Administrative Law Judge.”
3. All hearings at the Commission are concluded with the Administrative Law Judge issuing a recommendation that either results in an order setting forth their findings and recommendations, or a report setting forth the same. The applicable rule 165:5-13-4 comes into play when the recommendation or order is protested and a hearing is set before the Commission “en banc.”

¶ 3 Canon 3B(8): “A judge should not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect the outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing. The judge should require similar abstention on the part of court personnel subject the judge’s direction and control. This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.”

¶ 4 WE ANSWER: Question 1: Yes

Question 2: Yes, there are restrictions

DISCUSSION:

¶ 5 The Code of Judicial Conduct specifically enumerates Administrative Law Judges as among those to whom the code applies.

¶ 6 The Commission rule in question specifically provides that the Administrative Law Judge shall appear to respond to the questions from the Commissioners (emphasis added) and we presume would not be subject to questioning by parties or attorneys appearing before the Commission.

¶ 7 The Canon states, “This section does not prohibit Judges from making public statements in the course of their official duties ... ”, and appearing to respond to questions from the Commissioners would certainly be within such course, even though one would assume that it might reasonably be expected to affect the outcome of the hearing.

¶ 8 The responses would not be violative of the Code if they are limited to the facts found by the judge and the laws and rules to which the finding of fact were applied in making the recommendation being reviewed. The judge should not become engaged in arguments, philosophical discussions or debates as to matters of public policy.

¶ 9 It appears that there may be a “due process” question which may arise under these circumstances, but it is not our function to address due process claims.

¶ 10 ROBERT L. BAILEY, Chairman.

ROBERT D. SIMMS, Vice Chairman.

MILTON C. CRAIG, Secretary.


text:
    2003 OK JUD ETH 4
    JUDICIAL ETHICS OPINION 2003-4.
    Oklahoma Judicial Ethics Advisory Panel.
    June 4, 2003.
   ¶0 QUESTION:

May a judge serve on the Board of Directors of a closely held corporation engaged in the nursing home business?

¶1 FACT SITUATION:

1. This closely held corporation is currently owned by members of six (6) families. The inquiring judge owns a few shares and his family owns 1/6 of the stock.
2. The judge has had to recuse less than one time per year because of his family involvement in the nursing home business.
¶ 2 Canon 4D: “Financial Activities.
(1)A judge should not engage in financial and business dealings that: ,
(a) may reasonably be perceived to exploit ' the judge’s judicial position, or ...
(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge’s family, including real estate, and engage in other remunerative activity.
(3) A judge should not serve as an officer, director, manager, general partner, ad-visor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in: (a) a -business closely held by the judge or members of the judge’s family...”

¶ 3 WE ANSWER: No

¶ 4 DISCUSSION:

It appears that Canon 4D(3)(a) refers strictly to a totally owned family corporation and not to a small closely held corporation in which the judge’s family owns a minority interest.

ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman,

MILTON C. CRAIG, Secretary.


text:
    2003 OK JUD ETH 6
    Judicial Ethics Opinion 2003-6
    No. 2003-6.
    Oklahoma Judicial Ethics Advisory Panel.
    Sept. 29, 2003.
   QUESTION:

¶ 0 Upon assuming office, how long should a judge be required to disclose previous professional relationships with attorneys appearing in the judge’s court?

FACT SITUATION:

¶ 1 The judge is assigned to the Family Law Division in a metropolitan county. The judge previously practiced in that division as a member of a large fern, several small partnerships and for the seven years prior to assuming the bench, as a sole practitioner. The judge has been on the bench two years and has continued to disclose those past relationships in every ease in which a former associate or firm is involved. Lawyers are starting to complain, primarily because of the delay in getting another judge and setting. DISCUSSION:

¶ 2 The question falls within the purview of Canons 2 and 3 of the Code of Judicial Conduct, i.e., “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities” and “A judge should perform the duties of judicial office impartially and diligently.”

¶ 3 Just as Canon 2 specifically requires a judge to avoid impropriety and the appearance of impropriety (emphasis added), so too, is the appearance of impartiality as important to upholding the integrity and independence of the judiciary (Canon 1) as is the fact of impartiality.

¶ 4 We have previously stated that when a new judge assumes office, the judge should, for a reasonable period of time, disclose any immediate past association with an attorneys appearing before the judge. We have not suggested any bright line timetable.

¶ 5 Our research does not disclose Ethics Panels from other states responding directly to the period of time that such disclosure is required. The inquiries we have found are addressed to the period of time a judge should recuse when confronted with the situation. Several states have adopted a per se rule that prohibits a judge from hearing a case in which the judge’s former firm or associate appears for a specific period of time: Delaware, one year; Michigan and New York, two years; Illinois, three years and New Mexico, five years. Other states have refused to require automatic recusal. Arizona Advisory Opinion 95-11 states: “A policy requiring judges to disqualify themselves simply because they had a prior professional relationship with attorneys would be burdensome on the judiciary, particularly in rural areas where there are few judges and where judges know many of the litigants and lawyers.” West Virginia allows a judge to hear any case that came into the judge’s former office' after the judge left, but requires the judge to disclose the former relationship. The opinion does not address the period of time such disclosure is required.

¶ 6 Criteria suggested for evaluating whether sufficient time has passed to avoid an appearance of impropriety and to impart the appearance of impartiality include:

• the length of the judge’s association with the other attorney or firm (Arizona Advisory Opinion 95-11; Massachusetts Advisory Opinion 95-6; New Mexico Advisory Opinion 89-^6);
• the closeness of the association (Arizona Advisory Opinion 95-11);
• the amount of time since the association ended (Arizona Advisory Opinion 95-11; Massachusetts Advisory Opinion 95-6; South Carolina Advisory Opinion 5-1985; South Carolina Advisory Opinion 1-1988; Utah Advisory Opinion 89-2);
• the size of the firm (Arizona Advisory Opinion 95-11; New Mexico Advisory Opinion 89-6; New York Advisory Opinion 89-81);
• whether the court is located in a non-metropolitan area (New York Advisory Opinion 89-81);
• any financial dealings the judge has with former partners (New York Advisory Opinion 89-62; South Carolina Advisory Opinion 1-1983; Utah Advisory Opinion 89-2);
• the duration and closeness of personal relationships between the judge and former partners and associates (U.S. Compendium of Selected Opinions § 3.3-1(f) (1995); Louisiana Advisory Opinion 70 (1986); South Carolina Advisory Opinion 5-1985; South Carolina Advisory Opinion 1-1983; Utah Advisory Opinion 89-2; New York Advisory Opinion 89-31);
• whether the judge has a personal bias or prejudice toward the former partner or firm (Alabama Advisory Opinion 95-54.9);
• whether the judge is still receiving money from the firm or lawyer (South Carolina Advisory Opinion 5-1985; South Carolina Advisory Opinion 1-1983; Utah Advisory Opinion 89-2; New Mexico Advisory Opinion 89-6); and
• any continuing social relationship with the attorney (Massachusetts Advisory Opinion 95-6).

¶ 7 We do not deem it our function to fix a specific time for disclosure as our opinions are advisory. We are not a rule-making body.

¶8 In direct response to the fact situation presented, it is our opinion that for a judge who was a sole practitioner for seven years immediately prior to becoming a judge, the two-year period the judge has been on the bench is certainly more than sufficient time to no longer require disclosure of past relationships unless in applying the criteria set out above, an appearance of impropriety or lack of impartiality would arise.

¶ 9 ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman,

MILTON C. CRAIG, Secretary.


text:
    2003 OK JUD ETH 7
    JUDICIAL ETHICS OPINION 2003-7.
    Oklahoma Judicial Ethics Advisory Panel.
    Sept. 29, 2003.
   ¶ 0 QUESTION: May an active retired judge, with or without pay, review for a law firm, Motions for Summary Judgment and the opposing parties response and render an opinion as to the clarity, arguments and presentations as to both federal and state law, and further render an opinion as to the merits? Does it matter whether the requests arise from litigation in a county other than the one in which the judge regularly sat?

¶ 1 WE ANSWER: No, and the county is immaterial.

¶ 2 DISCUSSION: The answer to the question appears in the Code of Judicial Conduct under the heading “Application of the Code of Judicial Conduct”.

“A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial function, including an officer such as an administrative law judge, magistrate, court commissioners, special master or referee, is a judge within the meaning of this Code. All judges should comply with this Code except as provided below.
B. Retired Judge Subject to Recall. A retired judge subject to recall who by law is not permitted to practice law is not required to comply:

1. except while serving as a judge, with Section 4F; and

2. at any time with Section 4E.”

¶ 3 The services sought are certainly “the practice of law,” and not an exempt activity as provided in the code, so both the code and law prohibit the activity.

¶ 4 ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman,

MILTON C. CRAIG, Secretary.


author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 3
    STATE of Utah, Plaintiff and Appellee, v. Parley Parker Pratt STUBBS, Defendant and Appellant.
    No. 20011035-CA.
    Court of Appeals of Utah.
    Jan. 8, 2004.
    Edward K. Brass, Salt Lake City, for Appellant.
    Mark L. Shurtleff, atty. gen., and Kenneth A. Bronston, asst. atty. gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., BENCH, Associate P.J. and THORNE, Jr., J.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 Defendant Stubbs appeals his conviction for rape, a first degree felony, in violation of Utah Code Annotated section 76-5-402 (1999). We reverse and remand.

BACKGROUND

¶ 2 Stubbs was charged with rape, a first degree felony, in violation of Utah Code Annotated section 76-5-402, and forcible sexual abuse, a second degree felony, in violation of Utah Code Annotated section 76-5-404 (1999). Stubbs did not deny sexual activity with J.J., the alleged victim, but claimed it was consensual. .

¶3 J.J. is from a prominent and highly-regarded family in Beaver, Utah. Her mother was, and is, the treasurer for Beaver County. Her grandparents (Grandmother and Grandfather) were both school teachers. Grandmother had been president of the Beaver Education Association and Grandfather had coached the local high school football team.

¶ 4 Stubbs is not a resident of Beaver. He was staying at a local motel while he worked pouring curb and gutter. Fearing he could not get a fair trial in Beaver, Stubbs filed a motion for a change of venue. At a status, conference, the court was to address the change of venue motion; however, the court instead took the motion under advisement until the time of trial.

¶ 5 On the first day of trial, the court did not address the change of venue motion until midway through jury selection. The court welcomed the potential jurors and each gave cursory introductions of themselves. The court asked the jurors whether they had any information about the case from any source other than the court. Ms. Riley said that a friend of J.J.’s mother had given her the details of the case. She was also neighbors with the prosecutor. J.J.’s mother had told both Ms. Mayer and Ms. Forest about J.J.’s experience. Mr. Cox had been told about the case by J.J.’s father. Mr. Cox also admitted to being “real good friends” with J.J.’s father and said that, based on the things he had heard, he was “kind of bitter” about the situation.

¶ 6 The court then asked the panel whether they had a relationship with any of the witnesses. Ms. Dalton told the court that she worked with Dr. Melling, a witness for the State, as his nurse. She said that she would not automatically believe anything Dr. Melling said. Ms. Moreno also worked in the local medical clinic with Dr. Melling, but not as his nurse. She saw him every day and told the court that her relationship with Dr, Melling would tend to influence her views. Mr. Lorenzo had worked for the Beaver County Sheriffs Office eight years earlier for a period of five months. He also knew Officer Chambers, one of the State’s witnesses. Ms. Burnette was a close friend of Officer Chambers and she had applied for a job with the prosecution’s office.

¶ 7 In chambers, while privately questioning a potential juror, counsel for Stubbs argued in support of his motion for a change of venue. The defense cited the four James factors to be used in deciding when a change of venue is required. See State v. James, 767 P.2d 549, 552 (Utah 1989). After argument from the prosecution and some discussion of the issue, the court denied the motion for a change of venue. The court reasoned that the law did not contemplate .that someone who wandered into a community and was charged with a crime would be able to have the case moved to a different county simply because the victim held a position of prominence. Further, both the court and the prosecutor had witnessed “several cases where in spite of testimony from Beaver County residents, the juries [had] found in favor of the person from outside the community.” The court then gave the following summation:

Overall looking at the entire picture, looking at the answers that I have received and with what I know about Beaver juries, I am satisfied that this jury is prepared to try this ease on the evidence presented during the trial and the law as I give it without reference to personalities.... So I’m going to deny the motion to change venue just because of [J.J.’s mother’s] ... position and the influence that that might have on the jurors. I haven’t found any evidence that it would influence them.

¶ 8 In open court, jury voir dire continued with a question that had been asked before the in-chambers discussion: whether any of the jurors knew J.J.’s grandparents. When numerous hands were raised, the court rephrased the question to ask who did not know J.J.’s grandparents. Of the sixteen potential jurors, nine knew the grandparents.

¶ 9 Mr. Nelson had worked with the grandparents on various projects. He also worked with J.J.’s mother. Mr. Barney’s son was married to Grandfather’s daughter, and Mr. Barney and Grandfather shared some of the same grandchildren. Mr. Gay was a school teacher and worked closely with Grandmother because she was president of the Beaver Education Association. He was also a wrestling coach at a neighboring high school when Grandfather was the wrestling coach in Beaver. Additionally, he was a former neighbor and friend of the prosecutor. Mr. Carpenter was in the same church group as the grandparents. He was also a former leader of J. J. and her mother’s church group. Mr. Sherwood’s stepbrother and cousin were, like J.J.’s mother, elected officials. Mr. Sherwood also knew Grandfather from when Grandfather was Beaver’s football coach. Ms. Albrecht acknowledged that she was “fond” of Grandfather. J.J. had also been on some group dates with one of her sons and had visited her home. Mr. Hansen’s wife worked for Dr. Melling. Dr. Melling was a leader of Mr. Hansen’s church group. Mr. Hansen also coached high school football and happened to coach Grandfather’s grandson; thus, Mr. Hansen often discussed football matters with Grandfather. Mr. Hansen knew who J.J.’s mother was, and had a close friend that was a deputy sheriff. Mr. Edwards bought hay from Grandfather and hauled hay for Grandfather. When asked whether his views would be influenced by the fact that the alleged victim in this case was a granddaughter of Grandfather, he answered, “[M]ost definitely.” Mr. Davis had been a neighbor of J.J.’s about twelve years earlier. Mr. Davis’s father worked in the same building as J.J.’s mother. Grandfather was Mr. Davis’s fifth grade teacher. Ms. McMullin said that Grandfather coached two of her sons and that Grandfather had been “real close” with one of them. Ms. McMullin worked on the Beaver County network board with Grandmother. She was also good friends with Officer Chambers. Ms. Kesler told the court that Grandfather was a teacher when she was in high school. Ms. Kesler would see the grandparents at church and might say, “Hi, how are you?” when passing them on the street. She had also worked in the kitchen at the Beaver County Correctional Facility. Although Ms. Barton did not have a relationship with the grandparents, her sister had been employed by the Beaver County Sheriffs Department and her mother worked with a victim advocacy group.

¶ 10 Some on the panel were stricken for cause. Eight jurors were eventually impaneled and heard the case. Stubbs was convicted of rape and acquitted of forcible sexual abuse. He timely appealed his rape conviction to the Utah Supreme Court, which then transferred the appeal to this court pursuant to Utah Code Annotated section 78-2-2(4) (2002).

ISSUE AND STANDARD OF REVIEW

¶ 11 On appeal, Stubbs argues that the trial court erred in three ways: 1) by denying his motion for a change of venue; 2) by allowing the prosecutor to impeach him with evidence of prior bad acts; and 3) by instructing the jury on the theory of lack of consent by enticement. We address only the venue issue because it is dispositive to the outcome of this appeal.

¶ 12 “A decision to deny or grant a motion for a change of venue is within the discretion of the trial court and will not be reversed absent clear abuse of that discretion.” State v. Gayer, 814 P.2d 604, 608 (Utah Ct.App.1991) (citing State v. James, 767 P.2d 549, 551 (Utah 1989) (other citation omitted)).

ANALYSIS

¶ 13 In State v. James, 767 P.2d 549 (Utah 1989), “[i]n an attempt to more definitely define the standard to be followed by the trial judge in considering a motion for a change of venue,” the Utah Supreme Court explained that a trial judge should grant a motion for a change of venue whenever there is “a reasonable likelihood that a fair trial cannot be had.” Id. at 552.

¶ 14 There are four factors to consider in determining whether a fair trial can be had and, thus, whether a change of venue is required: “(1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity.” Id. When considering the impact of these factors, the totality of the circumstances is taken into account. See State v. Cayer, 814 P.2d 604, 608-09 (Utah Ct.App.1991); see also James, 767 P.2d at 552.

¶ 15 The first factor relates to the standing of both J.J. and Stubbs in the community. J.J. was the seventeen-year-old daughter of the elected Beaver County treasurer. J.J.’s grandparents were notable figures in the community, as evidenced by the large number of potential jurors who had some sort of connection with them. It appears from the record that J.J. had been a resident of Beaver County for most, if not all, of her life. She was seemingly exemplary in every respect. Stubbs, on the other hand, was an unknown transient who worked construction, or any other job he could find. He had been in town fewer than two weeks and was staying in a local motel for a short period of time while pouring concrete. He kept a pillow in the back of his truck for the times when he slept on the side of the road. Similarly, in Janies, where the appellate court reversed the denial of the - defendant’s motion for change of venue, the defendant had resided in Logan, Utah “for only two weeks prior to the disappearance of his son, a three month old infant.” See Cayer, 814 P.2d at 609.

¶ 16 The prosecution addressed this factor by claiming that there had been similar types of cases in the past where Beaver County juries had found in favor of an “outsider.” The court then applied a subjective standard by supplying a personal anecdote that “Beaver County juries are extremely independent and don’t tend to favor the local individual against the individual from outside.” Moreover, this factor deals not only with whether the victim and accused are residents of a particular community, but also with their standing within that community. Therefore, it is not enough to say that Beaver County juries have found for “outsiders” in the past. In this instance, the victim was not just an “insider,” she was also the daughter and granddaughter of well-known, highly-regarded members of the community.

¶ 17 The second factor addresses the size of the community — in this ease, Beaver County. “The James court emphasized that ‘the smaller the community, the more likely there will be a need for a change of venue in any event when a heinous crime is committed.’ ” Id. (quoting James, 767 P.2d at 553). The 2000 U.S. Census Bureau reported 6005 residents of Beaver County, ranking it number twenty-four out of twenty-nine counties in Utah in terms of population. The Janies court indicated that Cache County which, in 1986, had an estimated population of 69,200, was “small.” James, 767 P.2d at 553. Cache County, a small county, was roughly eleven and one-half times larger than Beaver County. The voir dire of the jury attests to the small size of the community: a few of the jurors knew one another, several jurors knew either the prosecutor or one of the State’s witnesses, and a majority of the jurors knew J.J.’s family. Although the trial court did not address this factor after it was raised by the defense, clearly, Beaver County is a very small community.

¶ 18 The third factor considers the nature and gravity of the crime. The trial court never mentioned this factor. “In James, the defendant was charged with first degree murder of an infant, a capital offense.” Cayer, 814 P.2d at 609. In Cayer, where the appellate court upheld the trial court’s denial of a motion for a change of venue, the “defendant was charged with the beating death of a less-helpless, adult victim and convicted of second degree murder.” Id. Here, the victim was a defenseless juvenile, a virgin who was allegedly raped by a near-stranger eight years older than she was. Rape is a first-degree felony, punishable to the same extent as murder. Considering that Beaver County has averaged only 1.09 rapes per year from 1990-2000, a single instance of rape is certainly a notable, memo-rabie, and heinous crime. See Utah Commission on Criminal & Juvenile Justice, Local Crime Information, at http://www.jus-tiee.utah.gov.

¶ 19 Finally, the fourth factor deals with the nature and extent of pretrial publicity. The trial court perfunctorily dismissed this factor. The voir dire demonstrates that a number of potential jurors had been given the details of the case from a source outside the courtroom. As for the nature of the publicity, the details of the case had been transmitted directly to the jurors via interested parties rather than from a more removed source like the media.

¶ 20 The State argues that the James factors are inapplicable in a situation like this one where a jury has already tried and convicted the defendant. In State v. Widdison, 2001 UT 60, 28 P.3d 1278, the supreme court explained that “[o]n appeal from a jury verdict, we do not look to the James factors to determine whether the trial court abused its discretion in denying a change of venue. Instead, we examine whether defendant was ultimately tried by a fair and impartial jury.” Id. at ¶ 38. However, this case is different from Widdison. Even though Stubbs takes his appeal from a jury verdict, we apply the James factors because they were never appropriately considered by the trial court. Further, the court began jury voir dire before even ruling on Stubbs’s motion for a change of venue. This is important because, in Widdison, the supreme court recognized that “the unique circumstance of the interlocutory appeal [in James ] ‘afforded us the opportunity to review the denial [of the change of venue motion] before any error committed would be prejudicial to the defendant.’ We reversed the order denying the motion to change venue in order to serve judicial economy.” Id. at ¶ 38 (citation omitted).

¶ 21 In Widdison, the defendant filed a motion to change venue in November 1996. See id. at ¶ 17. The trial court denied the motion, but allowed Widdison to raise the issue again at trial. See id. Widdison’s trial did not begin until April 30, 1998. See id. at ¶ 18. During the nearly eighteen months that elapsed between the time the court denied Widdison’s motion for a change of venue and trial, no interlocutory appeal was taken. By contrast, in this instance, because the trial court did not rule on Stubbs’s motion for a change of venue before trial, Stubbs did not have any opportunity to take an interlocutory appeal and thereby “serve judicial economy.” Id. at ¶ 38.

CONCLUSION

¶ 22 Under the totality of the circumstances, we conclude that the trial court abused its discretion 1) by not ruling on Stubbs’s motion for a change of venue before trial, and 2) by failing to properly apply the James factors.

¶ 23 We therefore reverse and remand for a new trial, and direct the trial court to grant Stubbs’s motion for a change of venue.

WE CONCUR: JUDITH M. BILLINGS, Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . The State cites to the 1999 version of the rape and sexual abuse statutes. Because these statutes have not been amended, we also cite to the 1999 edition of the Utah Code.

      . Citing a California case, the supreme court further explained that "a reasonable likelihood of prejudice does not mean that the prejudice must be more probable than not.” State v. James, 767 P.2d 549, 552 (Utah 1989).

      . The court and prosecution made much of the fact that J.J.’s mother's election was uncontested. We fail to see how an uncontested election changes the fact that J.J.’s mother assumed her position as a result of the popular vote.