Griggs v. State, ex rel. Oklahoma Dept. of Transp.
| Decision Date | 02 July 1985 |
| Docket Number | No. 60656,60656 |
| Citation | 1985 OK 51,702 P.2d 1017 |
| Parties | Samuel GRIGGS and Tillie Louise Griggs, husband and wife, Appellants, v. STATE of Oklahoma, ex rel. OKLAHOMA DEPARTMENT OF TRANSPORTATION, Appellee. |
| Court | Oklahoma Supreme Court |
Paul E. Blevins, Pryor, for appellants.
Norman N. Hill, Oklahoma City, for appellee.
The issue for decision is whether this court's pronouncement in Vanderpool v. State of Oklahoma, ex rel. Oklahoma Historical Society 1 should be modified to make it applicable to all cases that were pending on appeal at the time Vanderpool was handed down. Vanderpool, which abrogated the judicially-evolved doctrine of governmental immunity, applies retrospectively only to the plaintiff in that case and prospectively only to claims arising after 12:01 a.m., October 1, 1985. We answer in the negative and affirm the trial court's judgment.
This litigation was occasioned by a collision of two automobiles on March 10, 1981. State transportation employees were repairing the highway near Salina, Oklahoma, and had stationed a flagman to divert traffic around the repairs. A vehicle directed by the flagman into the other lane struck the car in which appellant, Tillie Griggs, was riding. Tillie and her husband [collectively called Griggs] sought recovery for bodily injury and loss of consortium, respectively. The Oklahoma Department of Transportation [State] demurred to the petition, invoking the doctrine of sovereign immunity. The trial court rendered judgment on the demurrer, 2 and Griggs bring this appeal.
In Vanderpool, promulgated by us while this appeal was pending, judicial recognition came to be withdrawn from the doctrine of governmental immunity. 3 Recognizing that the immediate impact of our decision in Vanderpool would be severe, we urged the legislature to declare by statute to what extent governmental immunity should be reintroduced into our law. To provide sufficient time for the legislature to study the subject and act on it, our pronouncement was given prospective effect. 4
The legislature responded to Vanderpool by passing the Governmental Tort Claims Act, to be effective October 1, 1985 at 12:01 a.m. 5
Griggs now urge two propositions: (1) the doctrine of governmental immunity is unconstitutional because it denies the appellant both due process and access to the courts, and (2) persons with claims pending when Vanderpool was decided should be allowed to proceed because the change was one of substantive law, and because any other result is inequitable and unjust.
Griggs contend that governmental immunity violates their right of access to the courts, Art. 2 § 6, Okla. Const. 6 Application of this provision to the doctrine was considered in Neal v. Donahue, 7 where we reaffirmed our previous holdings. 8 There, we held that the doctrine of sovereign immunity does not violate the state constitution. In today's pronouncement we reaffirm our commitment to that view.
Griggs also assert that governmental immunity violates the Due Process Clauses in the United States and Oklahoma Constitutions. The two clauses are almost identical in language. 9 In Donahue, we addressed this issue and found that sovereign immunity does not offend the Due Process Clauses. 10 Our view is bolstered by the Federal Supreme Court's repeated upholding of the doctrine against Due Process challenges. 11
We reaffirm today our previous holdings that sovereign or governmental immunity violates neither Art. 2 §§ 6 and 7, Okla. Const., nor the Fourteenth Amendment to the United States Constitution.
TREATMENT OF SAME-ISSUE CASES AWAITING APPELLATE DECISION
WHEN VANDERPOOL
Griggs next contend that our decision in Vanderpool--pronouncing that the end of judicial recognition of governmental immunity was extended retroactively only to benefit the plaintiff in that case and prospectively only to claims arising after the stated deadline--is unjust and inequitable. They also assert that Vanderpool should be accorded unrestricted retroactivity because the change was one of substantive law.
We recognize that Vanderpool did indeed alter the course of our substantive law. Up until that decision, we had consistently adhered to the immunity doctrine. 12 Griggs urge that because the change was of a substantive nature their case should be governed by Finefrock v. Rice. 13 There, an overruling case was applied to a pending appeal because the overruled case was held to have ceased as a norm of substantive law for both future actions and all pending, but undecided, appeals. But Finefrock does not decide the question here. It stands for the general common-law norm that an overruling precedent is to be applied retroactively. 14 The law clearly admits of an exception to this general rule when overruling precedent is declared to be nonretroactive.
Retroactive operation of an overruling decision is neither required nor prohibited by the United States Constitution. Judicial policy determines whether, and to what extent, a new rule will operate retroactively. 15
In Chevron Oil Co. v. Huson, 16 the United States Supreme Court isolated three factors for ascertaining when retroactivity of a new pronouncement should be restricted: (1) at the threshold, the decision must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or on an issue of first impression whose decision is not clearly foreshadowed; (2) the court must weigh the merits and demerits of applying the rule retroactively by considering the rule's prior history, its purpose and effect, and whether retroactivity will further or retard its operation; and (3) the court must consider the inequity flowing from retroactive application, including unfairness and hardship to the parties.
In light of the three Chevron factors, we find no infirmity in Vanderpool's refusal to confer the benefit of its new rule upon cases pending on appeal at the time it was decided.
The doctrine of governmental immunity protects public funds from tort claims by private persons. Vanderpool abrogated only the judge-made source of that doctrine. It left unaffected the power of the legislature to regulate the entire field of governmental tort liability.
The hardship the State would suffer from making Vanderpool immediately effective is apparent. Unlike private parties who have long been alerted to the need for insuring themselves against potential liability, the State, relying on clear precedent, had every reason to expect continued protection from suit. The State had to be afforded the opportunity to prepare itself for assuming the newly-imposed liability.
The hardship to Griggs consists of the arguable unfairness in treating them differently from the plaintiff in Vanderpool. The latter received the benefit of the abrogation norm. The law generally favors encouraging litigants to go forward with appeals which may lead to salutary changes in jurisprudence. 17 Applying the new rule to the case in which it is pronounced fosters this policy. This does not necessitate that the benefit of the new rule be extended to all other cases in the appellate process, especially so when hardship factors strongly militate against including others.
It is arguably unfair to deny retroactivity to Griggs as persons similarly situated to the appellant in Vanderpool. The quest for fairness to similarly-situated appellants has received attention in recent years within the context of the United States Supreme Court's criminal constitutional jurisprudence. There it is argued that any new constitutional decision, except one that constitutes a "clear break with the past", must be applied to all cases pending on direct appeal at the time the new rule is handed down. 18 In the criminal context, the hardship to convicted defendants facing loss of liberty is a significant consideration. In the present case, we do not believe that the fairness arguments outweigh the policy reasons that allowed only the Vanderpool plaintiff to benefit from the change of the law, and which make any other result manifestly unfair to the State. 19 Moreover, even the recent criminal cases recognize an exception for pronouncements--like Vanderpool--which spell out a clear break with the past.
An added consideration here must be afforded to the legislature's reliance on our decision in Vanderpool. The effective date of the enacted restoration of governmental immunity was made to coincide with the effective date of Vanderpool. Had the act become effective sooner--i.e., either immediately or ninety days after the end of the 1984 legislative session, as the Oklahoma Constitution generally provides 20--it would have still precluded any redress to Griggs with respect to their claims in litigation here. 21
The trial court's judgment is affirmed.
KAUGER, J., concurs by reason of stare decisis.
1 Okl., 672 P.2d 1153 [1983].
2 The trial court based its decision on two grounds: (1) the doctrine of governmental immunity protects the State from suit because the Transportation Department was performing its governmental function of maintaining the highways when the alleged negligence occurred, and (2) the legislative enactment, S.J.Res. 23 [1983], which allowed Griggs to maintain their action was a special act invalid under Art. 5 § 59, Okla.Const. The latter ground is not involved in this appeal.
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