National Collegiate Athletic Ass'n v. Owens

• Decision Date: 12 October 1976
• Docket Number: No. 50103,50103
• Citation: 555 P.2d 879
• Parties: NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Petitioners, v. The Honorable Charles L. OWENS, Judge of the District Court of Oklahoma County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 879

555 P.2d 879

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Petitioners, v. The Honorable Charles L. OWENS, Judge of the District Court

of Oklahoma County, Oklahoma, Respondent.

No. 50103.

Supreme Court of Oklahoma.

Oct. 12, 1976.

James D. Fellers, John Joseph Snider, Burck Bailey, of Fellers, Snider, Blankenship & Bailey, Oklahoma City, for petitioners; George H. Gangwere and John Kitchin, Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, Mo., of counsel.

Ben L. Burdick, Clyde A. Muchmore, Richard C. Ford, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for respondent.

SIMMS, Justice.

Petitioner, National Collegiate Athletic Association, hereinafter referred to as NCAA, asks this Court to assume Original Jurisdiction and issue Mandamus compelling Respondent, Oklahoma County District Judge, to fix bond pursuant to the provisions of 12 O.S.1971, § 993(c) and thereby stay the temporary injunction issued against petitioner from the enforcement of one of its rules. Alternately, NCAA asks this Court to stay the enforcement of the temporary injunction.

The apparent genesis of this litigation was the August 15, 1975 passage, by a majority of the Division I members of the NCAA, of By-law 12--1, to become effective August 1, 1976. By-law 12--1, inter alia, provides:

'Section 1. Number of Coaches. A member institution shall not employ or otherwise utilize the services of coaches in excess of the following numbers:

(a) Division I Football--One head coach, eight assistant coaches, two part-time coaches.'

Prior to the effective date of the aforementioned By-law, the Board the Regents of the University of Oklahoma and twelve University of Oklahoma assistant football coaches joined in an action brought in the District Court of Oklahoma County to enjoin petitioners from enforcement of By-law 12--1.

After evidentiary hearing, Respondent entered a temporary injunction which 'temporarily enjoined (NCAA) from implementing or enforcing NCAA By-law 12--1, together with accompanying regulations insofar as these apply to the employment and utilization of the services of assistant football coaches in excess of the number of such coaches set out in By-law 12--1.'

Following the adjudication of temporary enjoinment, petitioners filed a formal motion in the trial court requesting respondent to fix an amount of undertaking to stay the temporary injunction pending appeal to this Court. Respondent denied petitioner's motion for bond and stay, and petitioners now seek relief in this Court.

Initially, it is to be emphasized that we are not called upon in these special proceedings to decide the validity of By-law 12--1, nor are we asked to decide the legal propriety of issuance of temporary injunction against petitioners.

The sole issue herein treated succinctly put is whether or not the provisions of 12 O.S.1971, § 993(c) make it obligatory upon a trial judge, after issuance of temporary injunction and upon request of the party enjoined, to fix an amount of undertaking to stay the effect of a temporary injunction pending appeal to this Court. 12 O.S.1971, § 993 provides:

'(a) When an order * * *

(3) Grants a temporary injunction, * * *

the party aggrieved thereby may, within thirty (30) days thereafter, appeal from the order to the Supreme Court without awaiting the final determination in such cause, by filing the petition in error and the record on appeal in the Supreme Court, * * *.

(c) If the order grants a temporary injunction, the party seeking to appeal shall, if he desires to stay such order, give within ten (10) days after the order is rendered, an undertaking, with sufficient surety, to be approved by the clerk of the trial court, in an amount fixed by the judge, to secure the party procuring the injunction the damages he may sustain, including reasonable attorneys fees, in case it is finally decided that the temporary injunction was properly granted. The undertaking so made shall stay the effect of the temporary injunction pending appeal.'

A strict and literal interpretation of § 993(c) might lead one to the conclusion that after proper request by the enjoined party, the trial judge is left with no discretion but to set bond adn thereby stay the effect of the temporary injunction. Such a strict interpretation would raise very serious and pressing constitutional questions concerning the constitutional validity of the statute in issue.

Article IV, § 1, Okla.Const., provides:

'The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.'

It was held in Inverarity v. Zumwalt, 97 Okl.Cr. 294, 262 P.2d 725 (1953) that:

'It is fundamental that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.'

It appears fundamental that an injunction, although temporary in form, may be said to be a formal command of the court couched in the form of an order, writ, or process, directing the persons named therein to refrain from doing certain specified acts which appear to be against equity or conscience, or, where the relief is mandatory in form, commanding them to take certain steps to undo the wrong or injury with which they are charged--a command to refrain from, or to do, a particular act. ¹

By the enactment of 12 O.S.1971, § 1381, et seq., the legislature recognized that the granting or refusal of issuance of injunctive relief rests solely and exclusively in the discretion of the judicial branch of government. If then, we are to read § 993(c), supra, literally to mean that a trial court has no alternative but to fix the amount of undertaking and stay the effect of temporary injunction upon request, we effectively divest the trial division of the judicial branch of government of it inherent discretionary power to protect and preserve the respective rights of litigants in injunctive and co-related lawsuits. In other words, the unilateral action of one party could totally negate an order granting temporary injunctive relief to the detriment of the party obtaining the temporary injunction.

We are not, however, compelled to hold that § 993(c) is violative of Art. IV, § 1, Okla.Const. Only if § 993(c) is obligatory upon the trial court would such a conclusion result.

The holding of Allen v. Burkhart, Okl., 377 P.2d 821 (1963) is that in view of the constitutional power of the Legislature to enact laws to meet needs of the state, there is a presumption that an Act of the Legislature is constitutional, and such an act would be upheld unless plainly and clearly within express prohibition and limitations fixed by the constitution. To sustain the rationale of Allen, supra, we must apply the rule of law set forth in Scott-Rice Co. v. Oklahoma Tax Commission, Okl., 503 P.2d 208 (1972) that a statute must be construed, if possible, so that it will be constitutional instead of unconstitutional.

To decree that the provisions of § 993(c) are mandatory would be to endorse a constitutionally impermissible invasion into inherent judicial authority by the liegislative branch. On the other hand, we see no constitutional impediment in...