City of Tahlequah v. Lake Region Elec.

Decision Date15 January 2002
Docket NumberNo. 95,563.,95,563.
Citation47 P.3d 467
PartiesCITY OF TAHLEQUAH, Oklahoma, Plaintiff/Appellee, v. LAKE REGION ELECTRIC, COOPERATIVE, INC., Defendant/Appellant, and United States of America, ex rel. Rural Electrification Administration, Defendant.
CourtOklahoma Supreme Court

Lloyd E. Cole, Jr., Stilwell, OK, for the plaintiff/appellee.

Patrick D. Shore of Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, OK and Nathan H. Young, III, of Nathan H. Young, III, P.C., Tahlequah, OK, for the defendant/appellant.

Susan Stidham Brandon, Muskogee, OK, for the defendant/United States of America, ex rel. Rural Electrification Administration.


¶ 1 Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq., the United States Court of Appeals for the Tenth Circuit certified the following question:

Senate Bill 888 [11 O.S.1998 § 21-222] declares a "prospective and retroactive" moratorium on certain municipal condemnations of facilities of rural electric cooperatives and electric utilities. The Oklahoma Constitution, article V, section 52, provides that the legislature lacks "power to take away [a] cause of action" after commencement of a "suit." In light of statements in Oklahoma case law that condemnation matters are special proceedings, not actions at law or suits in equity, does the moratorium affect a condemnation proceeding filed before the enactment of Senate Bill 888?

¶ 2 On May 15, 1998 the City of Tahlequah [City] offered to purchase all of Lake Region Electric Cooperative, Inc.'s [Lake Region]1 electric facilities and service rights within City's corporate limits.2 Three days later City instituted a proceeding in the District Court of Cherokee County, Oklahoma to condemn the sought — after interests from Lake Region under the applicable provisions of 18 O.S. 1991 § 437.2(k).3 The United States of America, ex rel. Rural Electric Administration, [REA] was named as party-defendant because it owns a security interest in the property sought to be condemned. On June 19, 1998 REA removed the case to the United States District Court for the Eastern District of Oklahoma.

¶ 3 Upon removal Lake Region moved for the condemnation proceeding's dismissal asserting the statutory moratorium provided for by the terms of 11 O.S. 1998 § 21-222. The pertinent statutory language is:

There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 437.2 of Title 18 of the Oklahoma Statutes, initiated prior to July 1, 2002. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. If full consumer choice in the supply of electric power and energy is implemented in this state on or before July 1, 2002, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities of rural electric cooperatives contained in Section 437.2 of Title 18 of the Oklahoma Statutes is hereby repealed. If retail consumer choice is not implemented in this state on or before July 1, 2002, this moratorium shall become null and void. The moratorium provided for herein shall have prospective and retroactive application. [Emphasis added.]

The U.S. District Court denied Lake Region's motion, holding that because (1) the City-initiated condemnation proceeding is a "cause of action" brought before § 21-222's moratorium became effective and (2) OKLA.CONST. art V, § 524 denies the Legislature power to abridge a "cause of action" once instituted, the retroactive moratorium could not be asserted to stop City's condemnation of Lake Region's facilities.

¶ 4 The U.S. District Court appointed commissioners to determine just compensation for the condemned electric facilities. The appointed commissioners made their determinations and filed a report. Although Lake Region objected to the report, the same was confirmed on April 23, 1999. Lake Region next appealed [unsuccessfully] to the U.S. Circuit Court of Appeals for the Tenth Circuit. Lake Region then sought a jury trial. On February 29, 2000 an award of $3,746,222.00 was entered by the federal district court as just compensation for City's taking of Lake Region's property.


¶ 5 Because the appeal from which the certified question emanates is not before us for resolution, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is for the United States Tenth Circuit Court of Appeals to analyze our answer's impact on the case and facts ultimately before it.5 Lastly, we note that City raises constitutional questions (based upon the Legislature's alleged repeal of an act and its effect upon vested rights and proceedings instituted to enforce the same) which are neither embraced in nor inextricably intertwined with the U.S. Court of Appeals for the Tenth Circuit's certified question. To the extent that issues (constitutional or otherwise) are raised in the parties' briefs which are beyond the certified question's scope, the Court refrains from addressing the same.


¶ 6 The posited query essentially asks whether the municipal condemnation of part of an electrification system qualifies as a "cause of action" which is protected from legislative abrogation by the provisions of OKLA.CONST. art V, § 52, once the same is brought in the district court. Answered simply, a municipal condemnation of the type here in issue is a "special statutory proceeding" and not a "cause of action" as contemplated under art. V, § 52's provisions. Hence, the § 21-222 moratorium on municipal condemnations of electrification systems is not constitutionally infirm since it is outside the purview of the noted constitutional restriction on the Legislature's powers to affect a pending "cause of action."

¶ 7 Oklahoma's extant jurisprudence defines a condemnation proceeding — such as the one here in issue-as a special statutory proceeding designed to determine in a single action the damages for property taken from private persons for public use.6 The right of eminent domain or public taking of private property is a fundamental attribute of the sovereign state7 that is circumscribed by the provisions of OKLA.CONST. art. 2, § 24 which in essence provides that such takings can only be accomplished with just compensation. The power of condemnation lies dormant within the State until such time as the Legislature by specific enactment delineates the manner and through whom it may be exercised.8 Such legislative authorization was made by the provisions of 18 O.S. 1991 § 437.29 which permitted municipalities to condemn electric transmission and distribution lines lying within their corporate limits. Since the Legislature is empowered to authorize municipal condemnations under prescribed guidelines, it can also impose a stay or moratorium on an earlier legislatively — granted condemnation right. As the challenged legislative act [18 O.S.1991 § 437.2] is facially regular and is a valid exercise of recognized legislative authority, compliance with the statutorily-authorized condemnation procedure will not generate a civil wrong. A cause of action only arises when a wrong or breach of duty by the defendant occurs. It is what produces the necessity of action.10 When one complies with statutory procedure, no breach of duty happens.

¶ 8 The presence of a civil wrong is a critical identifying characteristic of a "cause of action" since "causes of action" are brought to remedy civil wrongs which are threatened or committed.11 Oklahoma's extant jurisprudence specifically holds that a condemnation proceeding "is a special proceeding and not a civil action. [Authorities omitted] Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity."12 Because a condemnation proceeding is a special statutory proceeding brought to determine just compensation for a public taking and is not a "cause of action" instituted to remedy a wrong, a legislatively-effected stay of such proceedings would neither implicate nor violate art. V, § 52's circumscription of legislative power to take away a cause of action-regardless of when the condemnation was instituted. The retroactive moratorium reflected in the terms of § 21-222 is an effective exercise of legislative power which is not constitutionally infirm.



¶ 10 WATT, V.C.J., OPALA, KAUGER and SUMMERS, JJ., dissent.

OPALA, J., with whom WATT, V.C.J., KAUGER and SUMMERS, JJ., join, dissenting.

¶ 1 The court holds today that a municipal condemnor's right of eminent domain (to compel the sale of an electrical-generation system) is enforceable by a "special statutory proceeding" whose prosecution does not qualify as rested upon a "cause of action." Only the latter stands protected by the provisions of Art. V § 52, Okl. Const.,13 from retrospective legislative tampering.14 I cannot accede to this view. The Constitution's § 52 shield protects from retrospective repeal all those claims for which the courts are authorized to afford vindication by the law in force at a judicial proceeding's commencement. The instant condemnation case is hence included under the § 52 umbrella.

¶ 2 The phrase "cause of action" became a legal term of art that was to serve as a synonym and substitute for one's "right to a writ" under any form of action15 — the...

To continue reading

Request your trial
22 cases
  • State ex rel. Dept. of Transp. v. Mehta
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • February 11, 2008
    ...OK 40, 184 Okla. 306, 87 P.2d 127). The right of condemnation is a fundamental attribute of the sovereign state. City of Tahlequah v. Lake Region Elec, Co-op., Inc., 2002 OK 2, ¶ 7, 47 P.3d 467, 471. This right is restricted by the provisions of Oklahoma's Constitution, art. 2, § 24, which ......
  • Holleyman v. Holleyman
    • United States
    • Oklahoma Supreme Court
    • May 13, 2003
    ..."Surface Damages Act;" Ward Petroleum Corp. v. Stewart, 2003 OK 11, ? 11, 64 P.3d 1113, 1116; City of Tahlequah v. Lake Region Elec., 2002 OK 2, ? 4, 47 P.3d 467, 473-74 (Opala, J., dissenting); Wilson v. Kane, supra note 6 at ?? 6-8, at 721-22; Williams v. Mulvihill, 1993 OK 5, ? 8 n. 14, ......
  • State ex rel. Regents v. McCloskey Bros.
    • United States
    • Oklahoma Supreme Court
    • December 8, 2009
    ...Question No. 729, see note 20, supra; City of Midwest City v. House of Realty, Inc., see note 23, supra at ¶ 19; City of Tahlequah v. Lake Region Elec. Coop., Inc., 2002 OK 2, ¶ 7, 47 P.3d 467; City of Pryor Creek v. Pub. Serv. Co., 1975 OK 81, ¶ 9, 536 P.2d 27. Board of County Commissioner......
    • United States
    • Oklahoma Supreme Court
    • June 18, 2002
    ...the governmental entity's request for more information extended the 90-day no-suit time bar.) 23. City of Tahlequah v. Lake Region Elec., 2002 OK 2, 47 P.3d 467 (Opala, J., dissenting). 24. Recent Oklahoma legislation explicitly prevents judicial punishment of premature filings by making th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT