author: HODGES, J. KAUGER, J.,

text:
    2003 OK 58
    Holly Suzanne INGRAM, Plaintiff/Appellee, v. John Michael KNIPPERS, Defendant, John C. Knippers, Third Party Defendant/Appellant.
    No. 96,331.
    Supreme Court of Oklahoma.
    June 3, 2003.

      Sharon L. Corbitt, Corbitt & Johnson, P.C., Brian S. Gaskill, Sneed Lang, P.C,., Tulsa, OK, for the Appellant.
    Mark A. Zannotti, Tulsa, OK, for the Ap-pellee.
   HODGES, J.

T1 The issues before this Court are: (1) whether the district court erred in refusing grandparent's request to enforce a consent visitation order, (2) whether the district erred in treating mother's motion to terminate visitation as an objection to request for enforcement of grandparental visitation, (3) what are the standards for terminating or modifying a consent decree granting grand-parental visitation, and (4) who should bear the burden of proof in modification proceedings.

I. FACTS

T2 Laine Christian Ingram (Child) was born on May 12, 1995, to Holly Suzanne Ingram (Mother) and John Michael Knippers (Father). The parents never married and live in separate households. Mother filed a petition against Father seeking custody and child support. On December 2, 1997, the district court awarded custody of Child to Mother, set a visitation schedule for Father, and fixed the Father's monthly child support obligation.

13 On June 2, 2000, Child's paternal grandfather, John C. Knippers (Grandfather), filed a motion to intervene and for visitation. - Grandfather alleged that he had been involved in Child's life since birth, that he had provided financial and other support for both Child and Mother, that grandparen-tal visitation would be in Child's best interest, and that Grandfather had unsuccessful attempted to effect visitation through his direct contact with Mother.

4 Pursuant to an agreement, the district court entered an order on November 29, 2000, allowing visitation between Child and Grandfather. The schedule covered October and November of 2000. The parties agreed and the court ordered that further visitation would be as recommended by Child's counselor.

5 In December of 2000, Mother unilaterally terminated Grandfather's visitation with Child. Mother did not seek court approval before terminating the visitation. Grandfather filed a motion to enforce his visitation rights, alleging that Mother had unreasonably interfered and denied him visitation. He requested an order setting a specific visitation schedule, requiring Mother to post a bond, and awarding him costs and attorney fees.

T6 Mother then filed a motion seeking to terminate Grandfather's visitation. She argued that courts may not order grandparen-tal visitation absent a showing that the custodial parent is unfit or that the child will suffer harm if the visitation is not allowed. She did not allege that termination of Grandparent's visitation was in Child's best interest. Even though Mother specifically requested that the visitation be terminated and that Grandfather's motion be denied, the district court treated Mother's motion only as an objection to Grandfather's motion to enforce visitation. Grandfather then filed an application for a contempt citation for Mother's - unilateral - action - terminating Grandfather's visitation in contravention of the November 20, 2000 order. He requested reinstatement of the order, Mother's incarceration, and an award of costs and attorney fees.

T7 At a hearing on the motions, the district court placed the burden of proof on Grandfather to show Mother's unfitness or potential harm to Child. Grandfather presented the testimony of Child's counselor that termination of grandparental visitation would result in harm to Child. Mother did not allege or present any evidence that there had been a substantial change of cireum-stances or that terminating visitation would be. in Child's best interest. On April 30, 2001, the district court entered an order denying Grandfather's motion to enforce his visitation, effectively terminating Grandfather's visitation and mooting the remaining issues.

18 Grandfather appealed. Mother has not submitted an appellate brief even though she was given opportunity to do so. Only Grandfather's brief was before the Court of Civil Appeals and is before this Court. The Court of Civil Appeals concluded that this Court's opinion in Scott v. Scott, 2001 OK 9, 19 P.3d 273, controlled. Rejecting the district court's reliance on Neal v. Lee, 2000 OK 90, 14 P.3d 547, and In re Herbst, 1998 OK 100, 971 P.2d 395, the Court of Civil Appeals found that the controlling factor of the present case was the procedural posture which was akin to that in Scott.

19 Mother petitioned for certiorari. This Court granted certiorari and now clarifies the standard and burden of proof necessary in proceedings to enforce agreed court-ordered grandparental visitation and to clarify the standard and burden of proof required to modify a grandparental visitation order. We do not address a scenario where a grandparent is attempting to expand visitation beyond what was agreed to by a parent. These facts are not before this Court.

II. HERBST, SCOTT, AND NEAL

110 Title 10, section 5 of the Oklahoma Statutes allows a court to grant grandparen-tal visitation with an unmarried minor grandchild under certain cireamstances if the court deems it to be in the child's best interest. In Herbst, this Court held section 5 to be unconstitutional to the extent it permitted district courts to grant grandparental visitation over the objection of fit parents without a showing of potential harm to the child when the family is intact. This Court extended Herbst to apply when the children are living with one parent and the other parent is deceased. Neal, 2000 OK 90, 14 P.8d 547.

{11 Then in Scott, this Court held that termination of an existing grandparental visitation order based on agreement of the parties is not subject to collateral attack in a modification proceeding but that the moving party is required to show a change in circumstances adversely effecting the child's best interest such that a change in visitation would improve the child's temporal, moral and mental welfare. Scott, 2001 OK 9 at 15, 19 P.3d at 275. Unlike Neal and Herbst, the child in Scott was adopted. However, this was not a factor in this Court's decision. Adoptive parents have no lesser rights than biological and single parents. Further, the remand in Scott was based on the district's court failure to follow statutory procedures required by title 10, section 5.

III. ENFORCEMENT AND STATUS OF AGREED GRANDPARENTAL VISITATION ORDER

{12 Mother claims: (1) the statute which allowed the initial grant of grandparental visitation required a showing of harm to Child or parental unfitness; (2) the Grandfather failed to meet his burden of showing harm; (8) the visitation should not have been granted, and (4) she should be allowed to unilaterally terminate the visitation. The problem with Mother's claim is that the initial visitation was a consent order entered after Mother and Grandfather had reached an agreement. Because Mother consented to the initial visitation, the order was not entered under authority of title 10, section 5, and Mother's rights were not infringed by the order. Further, visitation order is not now subject to collateral attack on the ground that title 10, section 5 is unconstitutional. '

118 Even if the grant of grandpa-rental visitation had been pursuant to title 10, section 5, the order is not subject to collateral attack on the grounds that section 5 was declared unconstitutional. A judgment based on a statute which is later declared, unconstitutional "is not void so as to be subject to collateral attack" but at most voidable and subject only to direct attack. Fitzsimmons v. City of Oklahoma City, 1942 OK 422, 18, 135 P.2d 340, 343. Applying this rule, a grant of grandparental visitation made under the authority of section 5 is "voidable and subject to direct attack, but it [is] not void so as to be subject to collateral attack." Fitzsimmons, 1942 OK 422 at 18, 135 P.2d at 343; see Scott, 2001 OK 9, 19 P.3d 273.

114 A judgment based on an agreement of "the parties is enforceable and valid even though it does what a trial court cannot [otherwise] do, provided the agreement does not contravene public policy." Whitehead v. Whitehead, 1999 OK 91, 110, 995 P.2d 1098, 1101. Nothing in title 10, section 5 or this Court's jurisprudence prevents a court from granting grandparental

visitation when the parties agree to the visitation. Mother has failed to present any convincing argument that the grandparental visitation order was void such that it is subject to collateral attack in an enforcement proceeding.

115 The Legislature has enacted procedures in title 10, section 5(E) that a district court must follow before acting on a motion to enforce grandparental visitation. Section 5(EB)(2) requires the court to direct mediation and enter an order. If the parties reach an agreement, the order shall memorialize the parties' agreement. The court may sanction the parent by assessing reasonable attorney fees, mediation costs, and court costs and ordering "any other remedy the court considers appropriate" including finding the parent in contempt of court, Okla. Stat. tit. 10, § 5(E)-(F). However, because Grandfather filed a motion for enforcement of his visitation rights, the court must follow the procedure outlined in title 10, section 5(E) requiring that the court direct the dispute to mediation and that the mediator file a record of mediation termination along with any agreement reached by the parties. Thus, Grandfather's motion to enforce should have been granted subject to the outcome of Mother's motion to terminate and the procedures set out in title 10, section 5(E).

IV. MOTION TO TERMINATE GRANDPARENTAL VISITATION

{16 The district court treated Mother's motion to terminate grandparental visitation as a response to Grandfather's motion to enforce. Because Mother not only responded to Grandfather's motion but also sought relief distinct from Grandfather's, the court should have cast Mother's motion both as a response to Grandfather's motion to enforce visitation and as a motion to terminate the visitation.

1 17 In Scott, 2001 OK 9, 19 P.3d 273, the mother sought to have a grandparental visitation order modified. She did not appeal the initial grant of visitation but collaterally attacked the order in the modification proceeding. The initial visitation order was entered after the biological father's rights were terminated and the stepfather had adopted the child. The case was remanded to the district court for failure to hold a hearing pursuant to title 10, section 5 of the Oklahoma Statutes. This Court reiterated that the burden was on the party seeking modification to show a change in cireumstances adversely effecting the best interest of the child such that the welfare of the child would be improved by modification of the initial order. Id. at 15, 19 P.3d at 275.

18 The "change of cireumstance" requirement is akin to the doctrine of res judicata and furthers the same policy considerations. Boatsman v. Boatsman, 1984 OK 74, 15, 697 P.2d 516, 519. The "change of circumstance" requirement accords "some degree of finality to factual and legal determinations made in [child] custody matters, which if absent would lead to constant relit-igation of matters already determined." Id. The "change of cireumstance" requirement assures that the same claims available in a previous visitation proceeding will not be subjected to continual relitigation. A consent judgment is entitled to the same preclu-sive treatment as a contested judgment. Id. Just as claim preclusion "teaches that a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided in that action," the "change of circumstances" requirement is a safeguard to prevent relitigation of issues which had been decided or could have been decided by a prior visitation order. Read v. Read, 2001 OK 87, n. 18, 57 P.3d 561, 567 n. 18.

119 Mother seeks here to litigate issues which could have been litigated in the initial proceeding. While a fit parent contesting grandparental visitation is entitled to a presumption that the parent will act in the best interest of the child, Neal, 2000 OK 90, 14 P.3d 547, a court will not modify a valid visitation order without the moving party first showing a substantial change of cireum-stances. Scott, 2001 OK 9 at 15, 19 P.3d at 275. Having agreed to the initial grant of visitation with Grandfather, Mother cannot in this subsequent proceeding litigate the issue of harm without showing a change in cireum-stances and Child's best interest will be served by terminating the visitation.

120 The district court should have considered Mother's motion as a request to terminate grandparental visitation. On remand, the district court should conduct a hearing on Mother's motion to terminate. The burden is on Mother, as the moving party, to first show a change of cireum-stances and to then show that termination of the visitation would be in Child's best interest. The district court should consider all relevant factors in determining the Child's best interest giving due regard for Mother's interest in raising her child. Mother must present evidence more than that she simply has changed her mind and does not wish Grandfather to have any contact with Child.

121 We believe our decision protects a parent's right to custody and control of a child without ignoring the child's best interest. "Having onee protected the parent's right to custody [and control of a child], at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case." C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998) (emphasis omitted).

V. CONCLUSION

[ 22 The district court should have considered Mother's motion as one to terminate grandparental visitation placing the burden on Mother to show a change of cireumstances and to show that a modification would be in Child's best interest. If the district court finds that there has not been a change of cireumstances or that termination is not in Child's best interest, it should consider Grandfather's motion to enforce visitation pursuant to the initial grant of visitation and follow the procedures set out in title 10, section 5(E). Whether or not the district court determines to continue or terminate grandparental visitation, Mother has failed to show that the initial order granting grandpa-rental visitation was void.

€ 23 The Court of Civil Appeals' opinion is vacated. The judgment of the district court is reversed, and the case is remanded for proceedings consistent with this opinion.

COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CAUSE REMANDED.

24 OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

1 25 WATT, C.J., (Joins KAUGER, J.), KAUGER, J. (by separate writing), dissent.

KAUGER, J.,

with whom WATT, C.J. joins dissenting.

1 I dissent from today's opinion as I did in Scott v. Scott, 2001 OK 9, 19 P.3d 273 regarding a fit parents' fundamental right to the care, custody and control of children in situations involving attempts to alter or to discontinue previously agreed-to or court-ordered grandparental visitation. - Neither Scott nor today's cause can be reconciled with the United States Supreme Court's most recent pronouncement on grandparental visitation-Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)-or with it's treatment of subsequent causes.

T2 I write separately to emphasize that:

1) Supreme Court jurisprudence requires, when considering the best interest issue, the trial court accord some special weight to the mother's own determination of her child's best interest and that it presume, as a fit parent, she will act with those interests in mind; and 2) to demonstrate that the Supreme Court's post-Trozel jurisprudence signals that imposing a heightened standard on parents who have previously allowed grand-parental visitation is a violation of the parents' constitutionally protected fundamental right to make decisions concerning with whom and when visitation with a non-parent will occur.

13 THE SUPREME COURTS PRONOUNCEMENT IN TROXEL v. GRANVILLE, AND ITS SUBSEQUENT - CONSIDERATION - OF CAUSES INVOLVING GRANDPA-RENTAL VISITATION MANDATE THAT SCOTT v. SCOTT BE OVERRULED AND THAT THE TRIAL COURTS DECISION IN FAVOR OF THE FIT MOTHER BE AFFIRMED.

I 4 This Court visited the issue of grandpa-rental visitation in a modification proceeding in Scott v. Scott, 2001 OK 9, 19 P.3d 273 holding that a parent could alter court-ordered visitation only through a showing of changed circumstances. In reaching it's result the majority distinguished the United States Supreme Court's most recent pronouncement on grandparental visitation-Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)-without discussing the opinion's implications. In doing so, the majority essentially declared that a parent who voluntarily agreed to grandpa-rental visitation was from that day shorn of parental status and relegated to a station no better than that of a non-parent when seeking to modify a visitation order.

5 Although state law may afford greater rights than those guaranteed by the sovereign, it may not curtail rights guaranteed by federal law or the United States Constitutions By virtue of the Supremacy Clause, this Court is bound by the decisions of the United States Supreme Court with respect to the federal constitution and federal law. When the Supreme Court, as the final arbiter of the United States Constitution, has spoken, the only course for this tribunal is to follow the decree -we must pronounce rules of law that conform to extant Supreme Court jurisprudence.

T6 The United States Supreme Court addressed the issue of parental rights in determining grandparental visitation in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000). Although Troxel is a plurality opinion, the discussion here is predicated on what a majority of the United States Supreme Court concluded. The judgment was announced by Justice O'Connor who was joined by Chief Justice Rehnquist and Justices Ginsburg and Breyer. Justices Souter and Thomas filed opinions concurring in the judgment and Justices Stevens, Scalia and Kennedy dissented. Justice Souter's reasoning departed from Justice O'Connor's opinion in that he would have facially invalidated the Washington statute in the same manner as the Washington Supreme Court did. Justice Thomas initially noted his reservations about substantive due process jurisprudence generally but concurred in the judgment because the parties did not ask the court to overrule its precedent holding that parents have fundamental rights to raise their children. He also noted that none of the opinions set out a standard of serutiny to which courts should hold nonparental visitation statutes. He urged state courts to apply strict serutiny to these statutes in the same manner as the Washington Supreme Court had.

T7 In short, six Justices agreed that the decision of the Washington Court finding the grandparental visitation statute unconstitutional should be affirmed. Eight Justices agreed that the Fourteenth Amendment protects a parent's right to raise his or her child without undue interference from government. Five Justices agreed that a fit parent is accorded a presumption that the parent acts in the child's best interests. Four Justices agreed that "special factors" must "justify" the state's intrusion, and that one of those factors is a finding of parental unfitness.

T8 When an opinion is delivered by a divided United States Supreme Court, the rule for determining the holding of the Court is laid down in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) in which the Court said:

"... When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds...."

In a judgment upholding a statute, the narrowest grounds are those which uphold the fewest statutes as constitutional. Conversely, when the rule is applied to striking down a statute, the narrowest grounds are those invalidating the fewest statutes as unconstitutional.

T9 In Troxel, the majority held Washington's Grandparental Visitation Rights Act unconstitutional as applied because of its broad seope-allowing any person to petition for visitation at any time. The high court was specifically concerned that the Washington statutory scheme failed to accord a fit parent's wishes any special weight and that it did not recognize a parent's heightened interest in deciding the child's best interest.

€10 The language of the high court in relation to parental decision making is particularly poignant. When describing the issue of parental rights the Supreme Court stated:

"The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court ... 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state ean neither supply nor hinder.'" [at p.2059]

Concerning the presumptions involving admittedly fit parents, the opinion provides:

"Accordingly, so long as a parent cares for his or her children (4.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." [at p.2060]

As to the weight which should be given to a parent's decision on grandparental visitation, the Supreme Court determined that the decision as to whether an intergenerational relationship would be beneficial in any specific case is "for the parent to make in the first instance." The high court explained the deference given to decisions of a fit parent writing:

"And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." [at p.2062]

111 Troxel has been determined to displace traditional "best interests" tests requiring instead that "significant weight" be given to a biological parent's fundamental right to determine the care, custody and control of children. Under the opinion, more traditional standards are replaced with a test in which a fit biological parent will presumptively prevail over a nonparent unless the nonparent presents compelling reasons overcoming the presumption.

112 In Scott v. Scott, 2001 OK 9, 5, 19 P.3d 273, the majority determined that a party seeking termination of existing court-ordered grandparental visitation had the burden of showing a change in cirenmstances demonstrating that it was in the child's best interest for grandparental visitation to be modified or terminated. The Scott majority determined that Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) was inapplicable because it did not involve an attack on court-ordered grandparental visitation. In doing so, it did not cite extant jurisprudence on the issue nor did it consider the Supreme Court's subsequent rulings on the grandparental visitation issue.

€ 13 Courts are divided on whether visitation challenged following either court-ordered or agreed-to grandparental visitation requires that parental decisions on the matter be given the special weight required by Troxel. The better reasoned opinions, and those with which it appears the Supreme Court would find favor, follow the guidelines established in Troxzel-determining that it is unconstitutional to fail to give a fit parent's decision some special weight and to shift the burden to the parent to avoid the imposition of visitation.

14 Particularly instructive on modification of grandparental visitation issues following Troxel are causes brought to the high court's attention. The Supreme Court has refused to revisit opinions in which parental decisions are given some special weight in modification proceedings-denying certiora-ri. Nevertheless, in Graville v. Dodge, 197 Ariz. 591, 5 P.3d 925, cert. granted, judgment vacated, 588 U.S. 945, 121 S.Ct. 2584, 150 L.Ed.2d 745 (2001), the Supreme Court granted certiorari and vacated the opinion.

115 The Arizona Supreme Court determined in Dodge that a contempt order issued when the father attempted to discontinue court-ordered grandparental visitation did not infringe upon the father's constitutional rights to custody and control of his children. After granting certiorari, the Supreme Court reversed and remanded the cause specifically for reconsideration in light of Troxel. Dodge provides a clear signal that the presumption in favor of a parent's right to decide applies even in modification proceedings. Although Trozel may be characterized as a plurality opinion, a majority of the Supreme Court has determined that it is necessary for inferior courts to follow its guidance on the special weight to be given a fit parent's decision regarding grandparental visitation.

T16 By virtue of the Supremacy Clause, this Court is bound by the decisions of the United States Supreme Court with respect to the federal constitution and federal law, and we must pronounce rules of law that conform to extant Supreme Court jurisprudence. Troxel and its progeny require us to presume that a fit parent will make decisions based on a child's best interest and to give some special weight to that decision. The majority's decision here and in Scott-requiring an admittedly fit parent to show a change of circumstances demonstrating that a discontinuance or alteration in grandparental visitation are in the child's best interest-ignore Trox-el's teachings by impermissibly shifting the burden to the parent.

CONCLUSION

117 Some cases hit closer to home than others. - Deciding whether grandparents should have visitation with their grandehil-dren over the objection of a parent is the type of case that tugs at the heart because one harbors either personal experiences with family members as a grandchild blooming under grandparental love and approval or as a grandparent intent on creating the same kind of memories in a child's offspring. For these reasons, the temptation is to allow the heart to rule over the letter of the law. Especially, under cireumstances like those presented here, where the grandfather obviously loves his grandson, has only his best interest at heart, and has done a great deal for the child and the mother both economically and as an emotional support,. Nevertheless, it is the law which governs these emotionally charged cases requiring us to set aside personal feelings and experiences when reaching a decision.

T 18 The erux of this cause is the principle that government should not unduly interfere with the decisions of fit parents in the upbringing and care of their children. We have long and consistently acknowledged the cardinal rule with respect to parents and their offspring-the custody, care and nurturing of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The determination of child visitation directly impacts this fundamental right.

{19 Absent some powerful countervailing interest, a parent's desire for and right to the companionship, care, custody and management of children is a protected fundamental right. Although characterized as a plurality opinion, the controlling case authority here is Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) requiring that this Court and all others give special weight to a fit parent's decision regarding grandparental visitation. A majority of the Supreme Court demonstrated the need to give parents special consideration in making visitation decisions when it granted certiorari in Dodge and remanded specifically for the causes consideration in light of the Troxel opinion.

4 20 The trial court applied Troxel's teachings-giving special weight to a fits parent's decision. I would affirm its order. Further, I would overrule the decision in Scott v. Scott, 2001 OK 9, ¶5, 19 P.3d 273 which stands in contravention to Troxel and its progeny.

      . The United States Supreme Court has not ad, dressed the issue presented by this appeal. Further, this Court's resolution of the issues does not contravene any of the United States Supreme Court's jurisprudence. The United States Supreme Court addressed the issue of grandparen-tal visitation in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000). In Trox-el, the grandparents were seeking more visitation than the parent was willing to grant. The United States Supreme Court required that at a minimum, the trial court give weight to the parent's wishes regarding visitation by a non-parent, including a grandparent, and held that there is a presumption that a parent will act in the child's best interest and that the grandparents have the burden to overcome the presumption. It should be noted in Troxel that the parent was not seeking to modify or terminate an existing visitation order as in the present case. Consistent with Troxel, this Court held that the Oklahoma Constitution requires that a grandparent seeking visitation over the objection of fit parents must show that a denial of grandparental visitation would result in potential harm to the child.
      In Dodge v. Graville, 533 U.S. 945, 121 S.Ct. 2584, 150 L.Ed.2d 745 (2001), the United States Supreme Court summarily granted certiorari, vacated the judgment of the Court of Appeals of Arizona, and remanded "for further consideration in light of Troxel. _..." In Graville v. Dodge, 197 Ariz. 591, 5 P.3d 925 (Ariz.Ct.App.2000), the grandparents were seeking a contempt citation. - After a hearing, the trial court entered an order modifying the original visitation by appointing a counselor to supervise and facilitate visitation. The "review was limited to determining whether the trial court abused its discretion by modifying the visitation order through the appointment of a supervision psychologist." Id. at 929 n. 2 (emphasis added). Unlike in Gran-ville, the grandfather in the present case is not seeking new requirements be added to the original visitation order. The United States Supreme Court recently denied certiorari in two grandparental visitation cases. McGovern v. McGovern, 201 Ariz. 172, 33 P.3d 506 (Ct.App.2001), cert. denied, 536 U.S. 959, 122 S.Ct. 2663, 153 LEd.2d 837 (2002); Jackson v. Tangreen, 199 Ariz. 306, 18 P.3d 100 (Ct.App.2000), cert. denied, 534 U.S. 953, 122 $.C+. 351, 151 LEd.2d 265 (2001). A denial of certiorari has no precedential effect and is not a statement of law regarding the merits of the case. Hopfmann v. Connolly, 471 U.S. 459, 461, 105 S.Ct. 2106, 85 L.Ed.2d 469 (1985). "Inasmuch, therefore, as all that a denial of a petition for a writ of certioFari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review." State of Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919, 70 S.Ct. 252, 94 L.Ed. 562 (1950) (opinion of Frankfurter, J., regarding the denial of a petition for certiorari.).

      . - Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060-62, 147 L.Ed.2d 49 (2000).

      . The majority's entire discussion of Troxel v. Granville, see note 1, supra, is found in Scott v. Scott, 2001 OK 9, 14, 19 P.3d 273 providing:
      "In Troxel v. Granville, the United States Supreme Court reviewed an order granting grandparent visitation. In the cases of In re Herbst and Neal v. Lee, this Court discussed the requirements for granting grandparent visitation. In all of these cases, the appeal was taken from an initial grant of grandparent visitation. These cases are not applicable in this appeal because here an order refusing to terminated court-ordered visitation is under attack." [Footnotes omitted. Emphasis in original.]

      . Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 LEd.2d 1201 (1983); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

      . We are bound under the United States Const. art. VIL, cl. 2 and the Okla. Const. art. 1, § 1 to follow the United States Constitution as the supreme law of the land. We are required by 12 O.S. § 2001 2201(A) to take judicial notice of the United States Constitution and the Constitution of the State of Oklahoma.

      . In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, { 12, 838 P.2d 1.

      . Akin v. Missouri Pacific Railroad Co., 1998 OK 102, % 30, 977 P.2d 1040.

      . In re Initiative Petition No. 349, State Question No. 642, see note 5, supra.

      . In Troxel v. Granville, see note 1, supra, the Court considered RCS 26.10.160(3) providing:
      "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances."

      . State v. Wooden, 184 Or.App. 537, 57 P.3d 583 (2002).

      . See note 2, supra.

      . Jurisdictions not requiring special interest considerations for parental decisions on modification: Currey v. Currey, 2002 SD 98, 18, 650 N.W.2d 273 [Where grandparental visitation arises by agreement, trial court must consider child's best interests rather than constitutionality of visitation statute.]; Rubano v. DiCenzo 759 A2d 959 (2000) [By agreeing to and signing order granting permanent visitation, parental rights became less exclusive and less exclusionary.]; Brinkley v. Flatt, 256 Ga.App. 263, 568 $.E.2d 95, 97 (2002) [Court declined to consider constitutionality of original order.]; In re Guardianship of K.T., 743 N.E.2d 348 (Ind.App.2001) [Modification allowed whenever shown to be in child's best interest.].
      Jurisdictions imposing some special weight on parental decisions in modification proceedings: Jackson v. Tangreen, see note 13, infra [Statutory scheme required parental decision be given special weight.]; Kyle O. v. Donald R., 85 Cal. App. 4th 848, 102 Cal.Rptr.2d 476 (2000) [Even where some form of court-ordered visitation exists, special weight should be given to fit parent's decision.].
      See also, Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841, 856 (2002) [Procedural preference placing burden of proof on parents in first instance unconstitutional]; Zasueta v. Zasueta, 102 Cal.App.4th 1242, 126 Cal.Rptr.2d 245, 253 (2002) [Placing evidentiary burden on parent to show visitation not in child's best interest unconstitutional]; In re Custody of C.M., 2002 WL 31116773, 74 P.3d 342 (Colo.App.2002) [Not released for publication but holding that in a modification of grandmother's visitation, mother's decision on visitation must be accorded some special weight.]; Ex parte State of Alabama, 826 So.2d 178 (Ala.App.2002) [Rebuttable presumption in favor of grandparent visitation over contrary decision by parent sufficient to render grandparental visitation statute unconstitutional.].

      . Kyle O. v. Donald R., see note 11, supra.

      . McGovern v. McGovern, 201 Ariz. 172, %18, 33 P.3d 506 (2001), cert. denied, 536 U.S. 959, 122 S.Ct. 2663, 153 L.Ed.2d 837 (2002); Jackson v. Tangreen, 199 Ariz. 306, 18 P.3d 100 (2000), cert. denied, 534 U.S. 953, 122 S.Ct. 351, 151 L.Ed.2d 265 (2001).

      . Graville v. Dodge, 197 Ariz. 591, 5 P.3d 925, cert. granted, judgment vacated, 533 U.S. 945, 121 S.Ct. 2584, 150 L.Ed.2d 745 (2001). In Graville, the Supreme Court wrote:
      "On petition for writ of certiorari to the Court of Appeals of Arizona, Division One. Motion of American Association for Retired People for leave to file a brief as amicus curiae granted. Judgment vacated, and case remanded to the Court of Appeals of Arizona, Division One, for further consideration in light of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000)."

      . Graville v. Dodge, see note 14, supra. See also, McGovern v. McGovern, note 13, supra; Jackson v. Tangreen, note 13, supra.

      . Akin v. Missouri Pacific Railroad Co., see note 6, supra; United States v. Home Fed. S. & L. Ass'n of Tulsa, 1966 OK 135, 18, 418 P.2d 319.

      . Matter of Baby Girl L., 2002 OK 9, ¶33, 51 P.3d 544; Matter of Application of Herbst, 1998 OK 100, ¶0, 971 P.2d 395; McDonald v. Wrigley, 1994 OK 25, ¶9, 870 P.2d 777; Matter of Application of Grover, 1984 OK 20, ¶9, 681 P.2d 81; Matter of Adoption of Darren Todd H., 1980 OK 119, ¶18, 615 P.2d 287; Matter of Leake, 1980 OK 114, ¶8, 614 P.2d 1107; Alford v. Thomas, 1957 OK 218, ¶0, 316 P.2d 188 (1957); Bishop v. Benear, 1928 OK 553, ¶0, 270 P. 569 (1928). See also, Matter of S.B.C., 2002 OK 83, ¶6, 64 P.3d 1080.

      . Ex parte State of Alabama v. L.M.S., 826 So.2d 178 (Ala.App.2002).

      . - Lassiter v. Department of Social Serv., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 LEd.2d 640 (1981); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 LEd.2d 551 (1972); In re Joshua S., 260 Conn. 182, 796 A.2d 1141, 1155 (2002).


source: Caselaw Access Project

author: OPALA, V.C.J.

license: Public Domain

text:
    2003 OK 61
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Cordes Martin GIGER, Respondent, and State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Cordes Martin Giger, Respondent.
    SCBD Nos. 4529, 4734.
    Supreme Court of Oklahoma.
    June 10, 2003.

      Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Tate Wise, Oklahoma City, OK, for Respondent.
   OPALA, V.C.J.

{1 In these disciplinary proceedings against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the merits and disposition of both the motion for additional discipline and of the complaint? and (2) Is a suspension from the practice of law for two years and one day an appropriate disciplinary sanction for respondent's breach of professional ethics? We answer both questions in the affirmative.

I

INTRODUCTION TO THE RECORD

2 On 13 November 2001 the court held in State ex rel. Oklahoma Bar Association v. Giger (Giger I) that Cordes Martin Giger (Giger or respondent) had engaged in professional misconduct warranting sanctions. We suspended respondent from the practice of law for one year, placed him under conditioned supervision for two years, and directed him to pay the costs of the proceeding. The provisions of respondent's conditioned supervision required him to (1) abide by the Rules of Professional Conduct; (2) cooperate with and participate in the Lawyers Helping Lawyers (LHL) program; (8) refrain from the use or possession of any illegal drug; and (4) remain unimpaired from the use of any legal substance, whether prescribed or not, that might interfere with his ability to function as a lawyer.

13 On 31 May 2002 the Oklahoma Bar Association (the Bar) filed a motion to impose additional discipline on respondent for violating the terms of his conditioned supervision by: (1) engaging in the practice of law while under suspension; (2) failing to comply with the court's order that he cooperate with and participate in the LHL program; (8) failing to comply with an order of the Cleveland County District Court that he participate in the LHL program as a condition of probation in several drug-related eriminal cases; and (4) entering a plea of nolo conten-dere in Cleveland County District Court to petty larceny. Giger tendered no response to the motion and we referred the matter for hearing to the trial panel that had originally heard Giger I. A hearing was set for 21 August 2002.

T4 While the motion to assess additional discipline was pending, the Bar initiated a formal disciplinary proceeding against respondent arising out of a grievance filed by Jimmy Travis Benson (Giger II or the Benson complaint). Respondent provided the Bar with a detailed response to Mr. Benson's informal grievance, denying his accusations, but did not file a response to the Bar's formal complaint.

' 5 The Benson complaint was set for hearing on 6 August 2002 before a different trial panel than that assigned to hear the motion for additional discipline. At the suggestion of the Bar and with respondent's approval, the trial panel assigned to hear the Benson complaint decided to transfer that complaint to the trial panel assigned to hear the motion to impose additional discipline and directed the Bar to seek an order to that effect from this court. We then issued an order combining the two cases for hearing purposes only, directing that they otherwise retain their separate identities and be resolved by independent dispositions.

T6 Accordingly, Giger II was consolidated (with the motion for additional discipline) for hearing on 21 August 2002. Evidence was received on that date on the motion, but because Mr. Benson failed to appear, the trial panel heard no testimony on the complaint. Another hearing was scheduled for 28 October 2002 to take up the Benson complaint, but neither Mr. Benson nor respondent appeared at that hearing. Upon being reached by telephone at his residence by a member of the panel, respondent denied that he had received notice of the hearing, which had been sent to him by regular mail.

T7 A final attempt to hear testimony on the Benson complaint was made on 16 January 2008. Respondent, having been personally served with notice of the hearing, appeared. Mr. Benson, who had informed the Bar that he would not be able to appear, agreed to testify by cell phone but could not be reached. The trial panel, only two of whose three members were present, nevertheless received testimony from respondent regarding Mr. Benson's grievance as well as further testimony relating to the motion to assess additional discipline. At the hearing's conclusion, the Bar conceded that it had not proved the allegations of the Benson complaint by clear and convincing evidence.

18 The panel members, unable to agree on the particulars of respondent's noncompliance with the court's order in Giger I, filed separate reports setting out their findings of fact, conclusions of law, and recommendation in that matter. The presiding master concluded that respondent had committed two violations of the Giger I order-practising law while under suspension and failing to comply with the terms of the Cleveland County probation in contravention of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct. She recommended that respondent be disbarred. The lawyer member of the panel found only a single breach of the Giger I order-failing to participate in the LHL program. He recommended that respondent be suspended for an additional two years and one day.

I 9 With respect to Giger II, the trial panel concluded that there was not a sufficient record for this court's de novo review.

{10 The Bar has filed an application to assess against respondent the costs of this proceeding in the amount of $2,010.06. Respondent has not filed a brief nor has he responded to the Bar's application to assess costs.

II

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

111 In a bar disciplinary proceeding the court functions as an adjudicative licensing authority that exercises exclusive original cognizance. Its jurisdiction rests on the court's constitutionally vested, nondelega-ble power to regulate the practice of law, including the licensure, ethics, and discipline of this state's legal practitioners. In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, the court conducts a full-scale, nondeferential, de novo examination of all relevant facts, in which the conclusions and recommendations of the trial

panel are neither binding nor persuasive. In this undertaking we are not restricted by the seope-of-review rules that govern corrective relief on appeal or certiorari proceedings in which another tribunal's findings of fact may have to be left undisturbed by adherence to the law-imposed standards of deference.

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

{13 Having carefully serutinized the record submitted in these proceedings, we conclude that it is adequate for de novo consideration of respondent's alleged professional misconduct as set forth in both the motion for additional discipline and in the Benson complaint.

IH

THE CHARGES AGAINST RESPONDENT

A. The Motion To Impose Additional Discipline

114 1. Practicing law while under suspension. The court's opinion in Giger I, which suspended respondent from the practice of law, was handed down on 13 November 2001. The record shows that respondent appeared as a lawyer on behalf of his wife in Cleveland County District Court on 6 December 2001. The Bar alleges that the Giger I opinion was final and effective on the date it was issued so that respondent's 6 December court appearance was in violation of that order. . If proved, respondent's conduct would constitute both a violation of the suspension order as well as a violation of the supervision order, which was conditioned on

fidelity to the Rules of Professional Conduct. Respondent conceded at the hearing that he did indeed practice law while under suspension, but claimed he did so under the erroneous impression-given him by an employee of the Bar-that there was some period of latency in which he could continue practicing without violating the order.

- 15 Whether respondent violated the Giger I order by appearing in court on 6 December 2001 depends upon when the Gig-er I opinion became operative, a point in time the court has not until now been called upon precisely to define. This Court exercises original jurisdiction in lawyer discipline cases. An order issuing from a bar disciplinary proceeding, unlike an opinion pronounced on appeal or certiorari, does not require a mandate to be delivered to a lower tribunal to mark its effective date. The effective date of most original proceedings is governed by Rule 1.198 of the Oklahoma Supreme Court Rules, which provides that the decision of this court in all original proceedings except those to review a decision of the Workers Compensation Court or to impose Bar discipline, unless stayed, becomes effective when the opimion or order is filed with the clerk. No Supreme Court rule addresses the effective date of decisions to impose Bar discipline.

T16 The provisions of Rule 6.15 of the Rules Governing Disciplinary Proceedings (RGDP) give a disciplined lawyer twenty (20) days from the date the court's decision is mailed to the parties to file a petition for rehearing, and we have held that a timely filed petition for rehearing delays the effectiveness of the order until denial of the petition. Respondent in this case did not file a rehearing petition. Consequently, neither the cited rule nor the related decision of the court bears on the effective date of the order at issue here.

$17 We hold today that a Bar disciplinary order, the effectiveness of which is not delayed by the filing of a petition for rehearing, becomes effective twenty (20) days after the decision is mailed to the parties, except where the court explicitly finds that immediate implementation of discipline is necessary to protect the public. This period of latency is consistent with RGDP Rule 6.15. It gives a respondent the full twenty (20) days to decide whether to file a rehearing petition and act upon that decision. It also avoids the potential of trapping a lawyer who, in contemplation of filing a petition for rehearing, continues to practice law during that twenty (20) day period, but then decides at the last minute not to do so. Today's pronouncement also protects a respondent's right to due process. Notice of the court's disciplinary order is a sine gua mon for exposing a respondent to the risk of additional discipline for violating that order. The rule pronounced today gives a disciplined lawyer notice of the court's action and a meaningful opportunity to challenge it.

118 It appears in this case that the Clerk did not record on the docket sheet the date the Giger I opinion was mailed to respondent. While documentary proof of the date of mailing is preferable, its absence is not fatal where, as here, we have respondent's admission that he received the opinion by 17 November 2001. While the opinion could have been mailed any time between 13 November and 16 November for receipt on 17 November, we must give respondent the benefit of the doubt by using the very latest date on which the opinion might have been mailed, which would be the day before he received it, 16 November 2001. The twentieth day after 16 November 2001 was 6 December. Consequently, the first day on which respondent would have been in violation of the Giger I disciplinary order for practicing law while under suspension was 7 December 2001. Imasmuch as respondent's court appearance of 6 December occurred within the latency period, he stands exonerated of the charge of violating the Giger I order by practicing law while under suspension.

119 2 Failure to participate in the Lowyers - Helping - Lawyers - program. Among the conditions of supervision imposed on respondent by Giger I was the requirement that he participate in the LHL program. The Bar alleges and the record confirms that at no time after Giger I became effective did respondent contact or otherwise make any effort to so participate. In his defense, respondent testified that over a year before Giger I was pronounced, he contacted an LHL program lawyer on at least six occasions over a period of a year and that he followed the advice he received at that time. The lawyer with whom he was in contact recalled only two or three conversations with respondent over a significantly shorter period of time and, perhaps, one face-to-face meeting. Respondent testified that having already contacted an LHL functionary the year prior to the court's order and having already followed his advice, he saw no point in obeying the court's order to further participate in that program. Moreover, in his view the LHL program is not equipped to handle depression, which he now contends is the underlaying cause of his personal problems and professional misconduct.

T 20 The record contains clear and convine-ing evidence that respondent failed to comply with the court's order to participate in the LHL program of assistance. His decision to disobey that order is particularly egregious in light of the fact that he agreed in Giger I to so participate and knew that the measure of discipline imposed in Giger I was chosen in part because of that agreement. Respondent now contends that his underlying problem is depression and that LHL assistance does not offer help for a problem of this nature. We disagree. Giger I noted that one of the LHL functions is to assist, through direct contact, lawyers impaired by substance abuse, depression, stress and other practice-related malaise. - This charge stands proved by clear and convineing evidence.

T21 8. Failure to obey a district court order to participate in the Lawyers Helping Lawyers program of assistance. On 7 September 2000 respondent entered a plea of no contest in Cleveland County District Court to four criminal charges of driving under the influence of drugs and possession of marijuana and drug paraphernalia. The District Court agreed to withhold formal judgment and defer sentencing for one year on each charge and placed him on unsupervised probation conditioned in part upon his agreement to participate in the LHL program.

22 The Bar alleges that on 6 September 2000, a day before the deferred sentences expired, the Cleveland County District Attorney filed a motion to accelerate judgment and sentencing on each charge based upon respondent's failure to participate in the LHL program. While the record supports the Bar's contention that respondent did not comply with the terms of his probation, it does not support the imposition of additional discipline for noncompliance with Giger I. Respondent's obligation to participate under the terms of his Cleveland County probation endured for only the one year period of respondent's deferred judgment and sentence, ie. between 7 September 2000 and 6 September 2001. The conditioned supervision ordered by this court was not in effect at that time and hence respondent did not violate its terms by violating the terms of his probation. Respondent stands exonerated of this violation.

123 4. Plea of nolo contendere to petty larceny in Cleveland County District Court. Respondent entered a plea of nolo contendere on 8 November 2001 to a charge of petty larceny from a Norman Wal-Mart on 15 September 2001. Both the crime and the plea occurred prior to the effective date of the court's order in Giger I. Respondent's conduct hence did not violate the terms of the conditioned suspension and respondent stands exonerated of this violation.

B. The Benson Grievance

124 The Bar received a grievance on 8 August 2001 from Jimmy Travis Benson, who had retained respondent earlier that year to represent him in certain domestic matters. According to Mr. Benson, respondent never followed through on assurances that he would initiate legal action, repeatedly promised and then failed to obtain visitation for him with his daughter, did not return phone calls, was late to or failed to appear at numerous court hearings, gave Mr. Benson the impression he had a drug problem, and after he was discharged, refused to return in exeess of $2,000.00 in legal fees which Mr. Benson had paid him.

25 Respondent provided a detailed reply to the grievance, denying any misconduct and asserting that the grievance was motivated by the fact that Mr. Benson did not want to pay additional legal fees owed.

126 The Bar filed a formal complaint in the Benson matter on 28 June 2002. Giger did not file a response to the formal complaint, but reiterated at the 16 January 20083 hearing that he had provided adequate legal representation to Mr. Benson in every respect. Mr. Benson was not present at the hearing and no testimony was given on the Benson grievance other than that of respondent. Bar counsel admitted that without the testimony of Mr. Benson, the Bar was unable to prove the charges by clear and convincing evidence. We agree. Respondent stands exonerated of this violation.

C. Respondent's History of Erratic Cooperation with the Bar and with this Court

27 Respondent's lack of cooperation with the Bar was evident in Giger I and served as one of the grounds for imposing discipline in that proceeding. Respondent's cooperation with the Bar remains at an unacceptable level. Knowing that the Bar was attempting to communicate with him, respondent nevertheless collected mail sent to his Bar roster address only on an irregular basis, at times allowing several weeks' volume of mail to accumulate. He provided the Bar with his mother-in-law's address, but when she went out of town for three weeks during these proceedings, he did nothing to obtain mail addressed to him at her address. When asked at one of the hearings if he regularly responds to mail from the Bar, he answered evasively, "I respond to all the mail I get." A private process server also testified about the difficulty he had in serving respondent personally.

128 Respondent's failure to cooperate is also evidenced by his handling of a drug abuse assessment he promised to furnish the trial panel within five days of the 21 August 2002 hearing. At that hearing respondent informed the trial panel that he had undergone a substance abuse evaluation in April of 2000 at the suggestion of the lawyer he had contacted from the LHL program. Respondent testified that the assessment, conducted at the Oaks Behavioral Health Center in Eufaula, Oklahoma, concluded he did not have a "classic substance abuse problem" or "any particular problem."

129 In a letter dated 28 August 2002 received by the Bar on 3 September 2002, respondent informed the presiding master that he had not yet been able to obtain a copy of the evaluation from the Oaks because it had been placed in the archive and was not immediately accessible to the staff. He expressed hope that he would be able to obtain a copy within a few days. It was never produced,

€30 At the 16 January 2008 hearing respondent announced that he had found in his file at home a letter dated 1 June 2000 from the Oaks discussing certain drug-related tests administered to him. This letter was offered as an exhibit. He never produced any other paperwork generated by the Oaks evaluating him for substance abuse. The 1 June letter shed no light on his condition in 2000 let alone in late 2001 and 2002 when he chose to disobey the Giger I opinion.

31 Respondent has failed in a number of other ways to comply with his obligations to the Bar and to this court. He has not paid Bar dues during his suspension nor has he fulfilled his CLE requirements. He has never paid the court-ordered costs of Giger I. He testified that he would like to meet all of these obligations, but due to his depressed mental state and the suspension he has been unable to work until recently and lacks sufficient income. He has never informed the court of his financial plight nor has he ever asked for an extension of time to meet his obligations.

1 32 Finally, respondent's testimony shows that he has not fully accepted responsibility for his predicament. He accuses the Bar of persecuting him and of maneuvering to prevent him from ever returning to the practice of law.

IV

RESPONDENTS MISCONDUCT WARRANTS A SUSPENSION OF HIS LICENSE TO PRACTICE LAW FOR TWO YEARS AND ONE DAY TOGETHER WITH THE PAYMENT OF THE COSTS OF THIS PROCEEDING

1338 A license to practice law is not conferred for the benefit of the licensee, but for that of the public. The disciplinary process, including the imposition of a disciplinary sanction, is designed not to punish the delinquent lawyer, but to safeguard the interest of the public, the judiciary, and the legal profession. Disciplinary sanctions serve not only to deter the offending lawyer from committing similar acts in the future, but also operate to put others on notice that

departures from ethical norms will not be tolerated.

134 The Bar's motion to impose additional discipline on respondent alleges four violations of the court's order in Giger I. From our de novo review of the record, we conclude that the Bar has established only a single violation-failure to participate in the LHL program. The fact that only a single violation has been proved does not mean that discipline is not warranted or that leniency is to be favored. We take a particularly dim view of disobedience to court orders. The integrity of the judicial system demands that lawyers, who are officers of the court, respect its authority. We cannot allow a lawyer to defy a disciplinary order without consequence. Public confidence in the judicial system demands that the court hold lawyers accountable for disobedience to its orders.

35 Respondent's noncompliance with the order to participate in the LHL program is a serious breach of the fundamental ethical norm of respect for the court's authority, but it is even more than that. Respondent's obligation to participate was not just part of the court's order in Giger I. Even before the court incorporated that requirement into the order, respondent had entered into an agreement with the Bar to accept LHL services. The court viewed respondent's willingness to seek that organization's assistance as evidence that he had finally come to recognize he had serious problems for which he needed help. Respondent's agreement to participate hence influenced the court's decision in Giger I not to impose a more severe disciplinary measure.

36 That respondent thereafter failed to participate in the LHL program casts doubt upon his candor with the court in the earlier proceeding. It now appears that at the very time he agreed to participate respondent had already concluded that there was nothing to be gained from that participation. It calls into question the sincerity of his then profession that he understood he had problems that were not amenable to self-help treatment measures alone. - Moreover, respondent's failure to participate did more than just deprive kim of the benefit of that organization's support. In Giger I, we said,

"The cumulative impact of respondent's transgressions requires not only that he be suspended for more than a token period of time for his past misconduct, but also that his health-physical, mental, and psychological-be regularly assessed for continued fitness to practice law. (emphasis added)

The court in Giger I wanted the assurance that respondent is fit to practice law that would have been provided by a successful period of LHL supervision. His failure to perform this obligation has removed that avenue of assurance.

137 In addition to his failure to participate in the LHL program, respondent's lack of cooperation with the Bar must also be considered in assessing additional discipline in this case. Respondent's disinelination to maintain good communication with the Bar, a troubling aspect of respondent's misconduct in Giger I, is again evident in the instant proceeding where respondent made only dilatory efforts to obtain his mail and was uncooperative in receiving or accepting the service of process. We also note that respondent expressed the belief that the Bar is persecuting him. A lawyer's lack of acceptance of responsibility for his professional difficulties, attributing them instead to the malignant designs of others, is a warning sign that the court must heed in assessing discipline.

188 Respondent testified that he suffers from depression, but he did not request that the court take this psychological impairment into account in assessing discipline. If respondent does indeed suffer from depression, he has failed to establish that fact for the record. Not only did respondent fail in this proceeding to provide medical evidence that he suffers from depression, but we have reviewed the record in Giger I and found no reference to depression as a cause of his misconduct there. A letter from respondent's physician admitted into evidence in Giger I identified several physical ailments plaguing respondent. The physician also related in the letter that respondent had suffered several stressful personal losses, but opined that these were now under control so that respondent "is able to function at a high level." The doctor's letter did not mention that he had ever diagnosed respondent as suffering from depression.

189 Emotional or psychological disability may serve to reduce a legal practitioner's ethical culpability, but does not immunize that person from imposition of disciplinary measures that are necessary to protect the public. When a mental disorder is tendered as a mitigation factor for the assessment of a lawyer's culpability, there must be a causal relationship between the medical condition and the professional misconduct. Not only did respondent fail to provide medical substantiation that he suffers from depression, but he also failed to establish a causal link between this perceived mental condition and the misconduct for which additional discipline is sought. The court can and must protect the public from a lawyer who suffers from undefined psychological problems that call into serious question his continued fitness to practice low.

1 40 Respondent's misconduct justifies disbarment in this case, but we decline to impose the ultimate disciplinary measure where, as here, respondent's misconduct has not caused any injury to a client, to the public, or to the legal profession beyond that which naturally flows from his defiance of the court's order. Instead, we suspend respondent for two years and one day so that he will not be able to resume the practice of law without first demonstrating his fitness to act

as a lawyer. At the expiration of the suspension pronounced today, respondent will remain suspended until he has met all outstanding obligations to the Bar and the court regarding Bar dues, CLE, and the payment of court-ordered costs. Respondent has not seen fit to seek the help and support he needs to overcome his problems despite the court's clear direction in Giger I to get such help. It is our fervent hope that a suspension from which he cannot return to the practice of law without pursuing the readmission procedures for disbarred lawyers will convince him to do so.

{41 The Bar submitted an application to assess against respondent the costs of this proceeding in the sum of $2,010.06. Respondent has not challenged the Bar's application. Upon examination of the itemized costs and the copies of bills submitted by the Bar, we order respondent to pay the costs of this proceeding in the amount of $1,580.42 within ninety (90) days of the date this opinion becomes final.

{42 RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY IN SCBD No. 4529 AND IS DIRECTED TO PAY THE COSTS OF THAT PROCEEDING IN THE AMOUNT OF $1,580.42, WHICH

SHALL BE DUE NOT LATER THAN NINETY (90) DAYS AFTER THIS OPINION BECOMES FINAL; RESPONDENT STANDS EXONERATED OF PROFESSIONAL MISCONDUCT IN SCBD No. 4734.

'I 43 WATT, C.J., and HODGES, LAVENDER, KAUGER, BOUDREAU and WINCHESTER, JJ., concur.

€ 44 HARGRAVE, J., concurs in result.

1 45 SUMMERS, J., concurs in part and dissents in part.

      . The record consists of five transcripts of proceedings held before a trial panel of the Professional Responsibility Tribunal, multiple exhibits that were admitted into evidence at a hearing or other proceeding, separate trial panel reports submitted in SCBD No. 4529 by the panel's presiding master and by its lawyer member, and a trial panel report in SCBD No. 4734.

      . 2001 OK 96, 37 P.3d 856.

      . The trial panel which heard Giger I had ceased to operate and two of its participants were no longer members of the Professional Responsibility Tribunal. We ordered the original trial panel to be reactivated for the purpose of conducting this proceeding.

      . Mr. Benson, the complaining witness, was present at the hearing but was not consulted about postponing his testimony to a later date. Mr. Benson was unable to attend the 21 August hearing or any subsequently scheduled hearing because of conflicting work obligations. Without his testimony, the Bar was unable to sustain its burden of proof in Giger II. We propose that in the future a trial panel considering whether to continue a proceeding when all the necessary witnesses are present should consult such witnesses about their ability to appear at a later date. While we recognize the benefit to judicial efficiency and convenience gained by combining these two matters for hearing, it would behoove those whose task it is to protect the public to remember that many persons cannot appear at multiple hearings without suffering a loss of income. It would have been far better if we had Mr. Benson's testimony in this case even if it meant that two different trial panels were to be involved. - As it now stands, we can do nothing to address Mr. Benson's grievance.

      . The Bar appropriately made no attempt to terminate the proceeding despite its admission that it had not met its burden of proof. Once a disciplinary prosecution has been initiated, it can be terminated only by this court upon its de novo review of the proceedings. State ex rel. Okl. Bar Ass'n v. Caldwell, 1994 OK 57, 4, 880 P.2d 349, 352.

      . Only the two panel members who were able to attend the final hearing in this matter filed reports.

      . The pertinent provisions of Rule 8.4(b), Oklahoma Rules of Professional Conduct, 5 0.$.2001 Ch.1, App. 3-A, state:
      "It is professional misconduct for a lawyer to: #ook
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; "

      . The presiding master interpreted the court's Giger I opinion as establishing a two-stage process: a suspension of one year followed by two years of conditioned supervision. Thus, in her view, the period of supervision did not begin until 13 November 2002. Accordingly, she exonerated respondent of the alleged violations of the order of conditioned supervision since they were based on conduct occurring before 13 November 2002. We reject the presiding master's interpretation of Giger I in light of that opinion's disposition clause, which states:
      "Respondent is suspended from the practice of law for one year and placed under conditioned supervision for two years, both the suspension and supervision to begin on the day this opinion becomes final, ..." (emphasis added)

      . State ex rel. Okl. Bar Ass'n v. Leigh, 1996 OK 37, 11, 914 P.2d 661, 666; State ex rel. Okl. Bar Ass'n v. Eakin, 1995 OK 106, 8, 914 P.2d 644, 647; State ex rel. Okl. Bar Ass'n v. Bolton, 1994 OK 53, 15, 880 P.2d 339, 344; State ex rel. Okl. Bar Ass'n v. Donnelly, 1992 OK 164, 11, 848 P.2d 543, 545; State ex rel. Okl. Bar Ass'n v. Raskin, 1982 OK 39, 11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 11, 95 P.2d 113, 114.

      . Eakin, supra note 9 at 1 8, at 648; State ex rel. Okl. Bar Ass'n v. Downing, 1990 OK 102, 12, 804 P.2d 1120, 1122-1123; Raskin, supra note 9 at 11, at 265-266.

      . Leigh, supra note 9 at 11, at 666-667; Eakin, supra note 9 at 18, at 647-648; State ex rel. Okl. Bar Ass'n v. Lloyd, 1990 OK 14, 8, 787 P.2d 855, 858; State ex rel. Okl. Bar Ass'n v. Stubblefield, 1988 OK 141, 17, 766 P.2d 979, 982; State ex rel. Okl. Bar Ass'n v. Cantrell, 1987 OK 17, 1, 734 P.2d 1292, 1293; State ex rel. Okl. Bar Ass'n v. Brandon, 1969 OK 28, 5, 450 P.2d 824, 827. Because this court's cognizance of disciplinary proceedings cannot be shared with any other institution, every aspect of the Bar's adjudicative process must be revisited by our de novo consideration. The attribute of non-delegable jurisdiction serves to distinguish the conduct of bar disciplinary functions from trial de novo-a retrial in a different court-or even from de novo appellate review on the record, which stands for an independent, non-deferential examination of another tribunal's record.

      . Eakin, supra note 9 at 18, at 648; Raskin, supra note 9 at 11, at 265. The court's range of options in a disciplinary proceeding is set forth in Rule 6.15(a), Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch.1, App. I-A, which states in pertinent part:
      ''The Supreme Court may approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate."

      . Bolton, supra note 9 at 15, at 344; Eakin, supra note 9 at 8, at 648; State ex rel. Okl. Bar Ass'n v. Farrant, 1994 OK 13, 7, 867 P.2d 1279, 1284; Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983).

      . The provisions of Rule 6.13, Rules Governing Disciplinary Proceedings, 5 O0.S.2001 Ch. 1, App.1-A, state in pertinent part:
      "Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel's findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered thereat...."

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

      . The unauthorized practice of law is prohibited by Rule 5.5(a), Oklahoma Rules of Professional Conduct, 5 0.$.2001 Ch. 1, App. 3-A, which states in pertinent part:
      "A lawyer shall not:
      (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; ..."

      . The fact that the Bar did not allege a violation of the suspension order does not affect the range of the court's discretion in this matter. It is the duty of this court, not that of the parties, to examine the facts de novo and determine which ethical rules are applicable. State ex rel. Okl. Bar Ass'n v. Bolusky, 2001 OK 26, 8, 23 P.3d 268, 272. Compliance with due process simply requires the Bar to allege facts sufficient to put the accused lawyer on notice of the conduct upon which the charges of professional misconduct are based. State ex rel. Okl. Bar Ass'n v. Johnston, 1993 OK 91, 19, 863 P.2d 1136, 1143 ('The Bar need only plead sufficient facts that will put the accused attorney on notice of the charges and give him an opportunity to respond to the facts alleged.").

      . State ex rel. Okl. Bar Ass'n v. Bourland, 2001 OK 12, 13, 19 P.3d 289, 291.

      . A mandate is this court's post-opinion order commanding the trial court to comply with an appellate pronouncement. - Smedsrud v. Powell, 2002 OK 87, 16, n. 25, 61 P.3d 891, 897, n. 25; Berland's Inc. of Tulsa v. Northside Village Shopping Center, Inc., 1968 OK 136, 7, 447 P.2d 768, 770; Gilliland v. Bilby, 1916 OK 340, 4-5, 156 P. 299, 300. See the provisions of Rule 1.16, Oklahoma Supreme Court Rules, 12 O.S. 2001 Ch. 15, App. 1, which state in pertinent part:
      "In every appeal or petition to review any order of a district court or other tribunal, a mandate will be issued to the lower court or tribunal on order of the Chief Justice upon conclusion of the matter on appeal. The mandate may be issued seven (7) days after the filing of an order denying certiorari or rehearing in the Supreme Court or expiration of time to file a petition for writ of certiorari or petition for rehearing, and disposition of any timely filed post-decisional motion. No mandate is issued upon conclusion of original actions, questions certified by federal courts, bar disciplinary matters, or original proceedings on initiative or referendum petitions."

      . The provisions of Rule 1.193, Oklahoma Supreme Court Rules, 12 O.S.2001 Ch. 15, App. 1., state:
      ''In all original proceedings other than those to review a decision of the Workers' Compensation Court or to impose bar discipline, the decision of this court, unless it is stayed with or without bond, shall become effective when its opinion or order is filed with the clerk...."

      . See the provisions of Rule 6.15, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch.1, App. 1-A, which states in pertinent part:
      "(c) Petitions for rehearing on behalf of the respondent or the Association shall be filed with the Clerk of the Supreme Court within twenty (20) days from the date of mailing of the action or decision of the Supreme Court."

      . Bourland, supra note 18 at 13, at 291.

      . The Clerk of the Supreme Court bears responsibility for giving notice to the parties of a decision in a bar disciplinary proceeding. See the provisions of Rule 6.15, Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch.1, App. 1-A, which state:
      (b) Notice of the action or decision of the Supreme Court shall be given by the Clerk to the respondent, the Professional Responsibility Tribunal, the General Counsel and the Professional Responsibility Commission.
      In order to make today's pronouncement viable, the Clerk of the Oklahoma Supreme Court must from this time forward record the date an opinion in a Bar disciplinary proceeding is mailed to the respondent.

      . A lawyer is entitled to due process during the course of disciplinary proceedings. State ex rel. Okl. Bar Ass'n v. Lobaugh, 1988 OK 144, 16, 781 P.2d 806, 811.

      . Giger, supra note 2 at 14, n. 12, at 860, n. 12.

      . The four charges filed against respondent in Cleveland County were:
      (1) Actual physical control while under the influence of drugs; possession of marijuana and possession of drug paraphernalia, 12 June 1998.
      (2) Driving under the influence of drugs, 30 October 1998.
      (3) Actual physical control while under the influence of drugs, 13 February 1999.
      (4) Driving under the influence of drugs, 4 October 1999.

      . Whether the petty larceny offense or respondent's failure to comply with the terms of his Cleveland County probation might warrant independent disciplinary sanctions is not before us in this proceeding, in which additional discipline is sought to be imposed for respondent's alleged violation of the court's Giger I opinion.

      . The letter-writer appeared to be under the impression that respondent had only a single drug-related charge against him. In addition, the tests administered to respondent were identified only by acronym and no explanation was provided of what the tests assessed.

      . State ex rel. Okl. Bar Ass'n v. Smith, 1980 OK 126, 21, 615 P.2d 1014, 1018; State ex rel. Okl. Bar Ass'n v. Lowe, 1982 OK 20, 19, 640 P.2d 1361, 1363.

      . State ex rel. Okl. Bar Ass'n v. Cummings, 1993 OK 127, 29, 863 P.2d 1164, 1174; State ex rel. Okl. Bar Ass'n v. Hall, 1977 OK 117, 12, 567 P.2d 975, 978.

      . Giger, supra note 2 at 23, at 865.

      . State ex rel. Okl. Bar Ass'n v. Schraeder, 2002 OK 51, 28, 51 P.3d 570, 580.

      . Id. at 128, at 579-80.

      . A suspension from the practice of law for two years and one day is tantamount to disbarment. In order to be reinstated, a lawyer suspended for that period of time must follow the readmission procedure for disbarred lawyers. See the provisions of Rule 11.1, Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch. 1, App.1-A. That procedure, set forth in the provisions of Rule 11.4, Rules Governing Disciplinary Proceedings, 5 0.8.2001 Ch. 1, App. 1-A., entails the following:
      "An applicant for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant's conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court's former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. - Further, if applicable, the Trial Panel shall satisfy itself that the applicant complied with Rule 9.1 of these Rules."
      We are persuaded that this respondent must be held to the strict standard set forth in Rule 11.4 before being allowed to represent the public in the future.

      . The provisions of Rule 6.16, Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch. 1, App. 1-A, authorize assessing the costs of a disciplinary proceeding against a disciplined lawyer in cases where discipline results.

      . We arrived at this sum by deducting from the Bar's request those costs that appear from the material provided in the Bar's application to be entirely or primarily attributable to the Benson complaint. - Because discipline did not result from that proceeding, its costs may not be taxed against respondent. See id., Rule 6.16, Rules Governing Disciplinary Proceedings.