Brock v. Thompson

• Decision Date: 14 October 1997
• Docket Number: No. 88912,88912
• Citation: 1997 OK 127,948 P.2d 279
• Parties: John A. BROCK, George Kaiser, David Rainbolt, Christine F. Fletcher, Bob Howell, Citizens Against Lawsuit Abuse, Inc., Petitioners, v. The Honorable Donald D. THOMPSON, Judge of the District Court of Creek County, Twenty-Fourth Judicial District, Respondent, and Jessie Huff Durham, an individual, and Beau Williams, an individual, Real Parties in Interest.
• Court: Oklahoma Supreme Court

Page 279

948 P.2d 279

1997 OK 127

John A. BROCK, George Kaiser, David Rainbolt, Christine F Fletcher, Bob Howell, Citizens Against Lawsuit Abuse, Inc., Petitioners, v. The Honorable Donald D. THOMPSON, Judge of the District Court of Creek County, Twenty-Fourth Judicial District, Respondent and Jessie Huff Durham, an individual, and Beau Williams, an individual, Real Parties in Interest.

No. 88912.

Supreme Court of Oklahoma.

Oct. 14, 1997.

James L. Kincaid, Brad R. Carson, Crowe & Dunlevy; and Frederick Dorwart and Michael J. Medina, Tulsa, for Petitioners.

W.C. Sellers, W.C. "Bill" Sellers, Inc. and W.C. Sellers, Jr., Bill Sellers, Sapulpa, for Real Parties in Interest.

OPALA, Justice.

¶1 The dispositive issue tendered by this original proceeding for a writ of prohibition is whether the district court action against the petitioners, now pending before the respondent judge, is dismissible for want of actionable quality. We hold that (a) when measured by the applicable Conley v. Gibson ¹ standard, the plaintiffs (co-respondents herein) can muster no set of facts in support of their quest for relief against the petitioners under any legal theory and (b) the writ should issue to arrest further proceedings against the petitioners in the action below.

I THE ANATOMY

¶2 This court's original cognizance is invoked to prohibit further proceedings in an action by two lawyers, Jessie Huff Durham and Beau Williams [respondents or plaintiffs], against Citizens Against Lawsuit Abuse, Inc. [CALA] and five of its leaders [collectively called CALA, petitioners or defendants]. The lawsuit is also pressed against World Publishing Company, the Gaylord Entertainment Company d/b/a The Oklahoma Publishing Co., and The Oklahoma Publishing Company, entities who are not parties to this original proceeding. Plaintiffs allege in their second amended petition below that (a) the defendants joined a conspiracy to undermine the democratic process and to injure the plaintiff "trial lawyers" ² by publishing "false, deceptive, fraudulent, and defamatory statements" relating to the plaintiffs, their profession and to the judicial branch of government, (b) the statements were disseminated with actual malice and with knowledge of their falsity or in reckless disregard of the truth of the statements, (c) the defendants' conduct has injured their reputations as well as their business property interest in their profession, and (d) the defendants' actions were intentionally inflicted, which caused them extreme emotional distress. The plaintiffs attached to their first amended petition below a copy of CALA's allegedly offending communication, a November 14, 1994 letter ³ written on its letterhead which (a) states that CALA was formed to change the "Constitution in a manner which will materially reduce the number of frivolous lawsuits", (b) explains that CALA's goal ¶3 Although none of the attachments was affixed to the second amended petition below, these instruments were made part of the materials tendered here for our consideration by CALA and are specifically referenced by the plaintiffs in their response brief. The parties are hence deemed to have adopted these materials as fit for our analysis in entertaining this cause. ⁴

is to secure the passage of two initiative measures--one to limit the recovery of punitive damages and the other to limit the contingency fee rate a lawyer may charge, and (c) solicits new members as well as financial contributions for its initiative petition drive. Plaintiffs also attached to the first amended petition copies of five articles published in the Tulsa World and The Daily Oklahoman about CALA's efforts to bring about "tort reform" through the initiative process. Some of the defendants below brought this proceeding after unsuccessfully pressing at nisi prius for dismissal of the second amended petition.

II RELIEF SOUGHT IN THIS COURT

¶4 In this original proceeding the petitioners seek dismissal of the district court ¶5 A prerogative writ that may be granted in the exercise of this court's supervisory control over inferior courts, ⁵ prohibition will lie to arrest unauthorized or excessive use of judicial force. ⁶ While erroneous denial of a motion to dismiss is not usually an error for which prohibition will issue, original cognizance will be taken to prohibit the use of unauthorized or excessive judicial force in entertaining nonactionable claims where, as here, valued fundamental-law rights are clearly implicated and their immediate protection from encroachment appears necessary. ⁷

action against them because of its chilling effect on their fundamental-law liberties that are at stake in the trial court process-- i.e., their initiative-related legislative activities, their freedom of political speech and their right to petition the government for a change in the law. The plaintiffs counter that prohibition is not an appropriate remedy.

¶6 The Availability of the Prerogative Writ Sought Herein

Must Be Assayed by the Conley v. Gibson Standard

⁸

¶7 A motion to dismiss for failure to state a cause of action will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief. ⁹ We hold that, for the reasons to be explained in Parts IV and VI infra, no relief may be available on the claim sought to be prosecuted against CALA. Because the respondents' claim against CALA lacks actionable quality, it cannot withstand the petitioners' quest for the action's dismissal.

III THE PARTIES' ARGUMENTS

¶8 CALA argues the state and federal constitutional right to petition the government for redress of grievances absolutely protects from civil liability any communications intended to influence government action. ¹⁰ All activities that relate to the initiative process, CALA urges, are constitutionally protected as process of petitioning the government. CALA's position rests on two U.S. Supreme Court pronouncements--Eastern Railroad Presidents' Conference v. Noerr ¶9 The respondents counter that CALA's publicity campaign, allegedly for an initiative petition drive, was in fact a sham that sought to disguise its sole purpose of maligning the plaintiff trial lawyers and of undermining Oklahoma's democratic processes. According to respondents, the Noerr-Pennington doctrine does not shield from civil liability those activities which are a subterfuge for accomplishing an unlawful purpose. The plaintiffs urge that the defendants conspired to use unlawful means to bring about a change in the fundamental law of the state, which actions amount to intentional infliction of emotional distress and injury to their reputations as well as to their property interest in the practiced profession.

Motor Freight, Inc. ¹¹ and United Mine Workers v. Pennington. ¹² This jurisprudence--commonly referred to as the Noerr-Pennington doctrine--holds that mere attempts to influence the enforcement or passage of legislation are not actionable under the Sherman Act, ¹³ even if the motive for the effort may be deemed anticompetitive. ¹⁴ Although the doctrine had its birth in the context of antitrust litigation, CALA urges, it has been extended to several direct petitioning activities--such as those of accessing the courts, lobbying legislators and pressing the initiative process ¹⁵--as well as to conduct designed to influence public sentiment for the passage and enforcement of laws. ¹⁶ Because an initiative petition drive is a legislative activity, CALA argues, all communications that relate to it must be viewed as explicitly immunized from civil liability by state and federal fundamental law. According to CALA, legislative activity, which includes the initiative process, is statutorily protected from a libel action by the explicit terms of 12 O.S.1991 § 1443.1. ¹⁷ Lastly, CALA submits that venue in Creek County was mislaid. ¹⁸

IV

¶10 THE GOVERNING STATE CONSTITUTIONAL PRINCIPLES

A.

¶11 The Political Process of Lawmaking by Initiative

¶12 The Oklahoma system of constitutional democracy authorizes the electorate to legislate directly by initiating and passing measures that may change the State's constitution as well as her statutes. ¹⁹ Article 5 of Oklahoma's fundamental law reserves in the people the right of the initiative (popular law-making) ²⁰ and of the referendum (the enacted law's popular disapproval). ²¹ The ninety-day signature-collecting process is triggered by the pre-circulation filing of the initiative petition with the Secretary of State. ²² By the end of the prescribed ninety-day period, the proponents must submit, by post-circulation filing, the signed pamphlets of the petition. ²³ Early Oklahoma jurisprudence teaches that when exercising their right to propose laws for popular enactment, the people are deemed to be members of the "largest legislative body in the state." ²⁴ The

                process of changing statutory law or the State's constitution through the initiative route is a form of sanctioned popular lawmaking.  Lawmaking is a classical form of political process.   The State's initiative and referendum, which is without a counterpart in the political institutions of the federal government, has neither been explicitly sanctioned nor condemned as violative of the republican form of government. 25
                

B. ¶13 Legislative Immunity

¶14 The Speech or Debate Clause of the Oklahoma Constitution, Art. 5, § 22, ²⁶ absolutely protects legislators from suit calling for judicial inquiry into their performance "within the sphere of legitimate legislative activity." ²⁷ Legislators may not be haled into court, either to account for acts that occurred in the course of legislative process or for judicial inquiry into their motivation for those acts. ²⁸ The legislative privilege has

never been limited to words spoken in debate. ²⁹ The constitution's immunity shields all enactment-related conduct, whether a legislator ³⁰ be sued (1) personally, (2) in an official capacity, or (...