Sholer v. State ex rel. Dept. of Public Safety
| Decision Date | 23 May 1995 |
| Docket Number | Nos. 83504,83505,s. 83504 |
| Parties | , 1997 OK 89 Michael SHOLER, Sharon Morales, Anastasia E. Dalton, Harold E. Kuykendall, Gregory Lynn Parham, Wanda Johnson, Patsy Weiss, Calvin N. McCaskell, Jr., Kevin L. Armstrong, and for themselves and all others similarly situated, Appellees/Counter-Appellants, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, David R. McBride, Commissioner, Appellant/Counter-Appellee. |
| Court | Oklahoma Supreme Court |
Richard D. Laquer, Bob G. Carpenter, William H. Stout, Oklahoma City, for appellees/counter-appellants Michael Sholer, et al.
Lisa McLaughlin-Molinsky, Michelle R. Day, Associate Counsel, Dept. of Public Safety, Oklahoma City, for appellant/counter-appellee State ex rel. Dept. of Public Safety David R. McBride, Com'r.
Guy L. Hurst, Asst. Atty. Gen., Oklahoma City, for appellant/counter-appellee State.
This appeal raises several issues concerning the proper fees to be charged to reinstate a driver's license: This Court holds: (1) The suit was not barred by sovereign immunity or the Governmental Tort Claims Act. (2) The action was not subject to administrative appeal. (3) Fink v. Department of Public Safety is correct and the trial court was correct in applying it retroactively. (4) The trial court applied the wrong statute of limitations. (5) The trial court failed to take evidence concerning class certification. (6) The Fink holding applies to additional fees. (7) Appellees are entitled to interest on the amount overpaid in reinstatement and additional fees. (8) Injunctive relief is not necessary to implement the rule in Fink. (9) Designation as class representative may not be denied based solely on the proposed representative's felony conviction.
This action arose as a result of the Court of Appeals' decision in Fink v. Department of Public Safety, 852 P.2d 774 (Okla.Ct.App.1992). Fink held that the Department of Public Safety (DPS) had misapplied section 6-212 and section 6-212.1 of title 47 by stacking reinstatement fees for each offense. It held that only one reinstatement fee could be collected for reinstating a driver's license. The opinion was published by order of the Court of Appeals. This Court denied certiorari review of the case on April 14, 1993. DPS changed its policy to conform with Fink on July 6, 1993. This action was filed on July 7, 1993.
This action was brought as a class action by drivers who were charged multiple license reinstatement fees and/or multiple additional fees. Injunctive relief was also sought to prohibit DPS from collecting multiple fees.
The petition divided drivers into five subclasses. Subclass "A" consisted of all who had been charged multiple reinstatement fees and/or multiple additional fees before December 9, 1992. Subclass "B" contained members who were overcharged after December 8, 1992, but before April 15, 1993. Subclass "C" was comprised of those who were overcharged after April 14, 1993, but before July 7, 1993. Subclass "D" consisted of those who were overcharged after July 6, 1993. Subclass "E" was comprised of members whose licenses had been suspended or revoked and who sought injunctive relief against DPS to force it to collect one reinstatement fee in compliance with Fink.
DPS moved to dismiss the action on jurisdictional grounds. The trial court denied the motion. DPS then asked this Court to assume original jurisdiction and prohibit the proceeding in the trial court. Its request was declined.
During this time, DPS paid refunds to one plaintiff in the class action and a few other drivers who had complied with the claims procedure of the Governmental Tort Claims Act. DPS also issued over 1300 unsolicited refund checks to drivers who paid multiple reinstatement fees after this Court denied certiorari review in Fink but before DPS implemented the new policy.
The class action plaintiffs prevailed on a motion for summary judgment. Additionally, the trial court granted certification of a class comprised of members who had paid more than one reinstatement fee between July 6, 1988, and July 6, 1993. Certification was denied to subclasses "C", "D" and "E".
After the trial court's decision, the Legislature passed Senate Joint Resolution 33 (SJR 33). That document purported to express legislative intent with regard to reinstatement fees. In essence, it expressed disapproval with Fink and stated that the Legislature's intent in enacting the licensing fee statutes was to require a reinstatement fee for each offense.
DPS asked the trial court to reconsider its decision in light of SJR 33. The trial court declined to do so. DPS then brought two appeals which have been consolidated for review. Appellees have filed counter petitions.
While this appeal was pending, DPS asked this Court for a temporary order to resolve the conflict between the Fink decision and SJR 33. The motion for temporary order was denied.
DPS has invoked the protection of sovereign immunity from suit. It argues that the appellees have raised tort claims for damages and that this makes them subject to the claims procedures found in the Governmental Tort Claims Act, Okla.Stat. tit. 51, §§ 151-171 (1991) (GTCA). Appellees argue that the action does not lie in tort, but rather is one for "money had and received." Classification of the action determines whether the GTCA applies and thus, whether the trial court had jurisdiction to hear the matter.
The GTCA lists specific exemptions from liability in section 155 of title 51. The state is not liable if a loss or claim results from:
11. Assessment or collection of taxes or special assessments, license or registration fees, or other fees or charges imposed by law;
12. Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;
....
DPS claims this section exempts it from all liability. However, the power of DPS to collect license fees or its power to issue or suspend a driver's license is not at issue. The appellees' claim is that DPS misinterpreted the reinstatement fee provisions when it collected more than the fee imposed by law. Thus, the GTCA exemptions for licensing and collecting statutory fees are not implicated.
Nor does appellees' action fall within the GTCA definition of a tort claim. The GTCA defines "claim" as "any written demand presented by a claimant or his authorized representative in accordance with this act to recover money from the state or political subdivision as compensation for an act or omission of a political subdivision or the state or an employee." Id. at § 152(3) (emphasis added). Appellees are not seeking compensation. Rather, they are seeking a refund of unauthorized reinstatement fees collected by DPS.
The GTCA also defines "tort" as
a legal wrong, independent of contract, involving violation of a duty imposed by general law or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.
Id. at § 152(11). Again, appellees are not seeking compensation for a loss caused by the state. Instead, they seek a refund of the amount overpaid for license reinstatement. Their action is one for money had and received. As such, the GTCA provides no bar to their action. Appellees were not required to comply with the claims procedure provided in the Act.
DPS asserts that the appellees failed to challenge the assessment of multiple reinstatement fees under section 6-211 of title 47. That section provides a right of appeal to the district court within thirty days to "[a]ny person denied a license, or whose license has been canceled, suspended or revoked by the Department." DPS argues that the collection of reinstatement fees are somehow part of the revocation process and that any challenge to a reinstatement fee must be brought within thirty days.
By its own terms, however, section 6-211 applies to persons appealing the suspension or revocation of their licenses. Appellees are not making such an appeal. They are seeking refunds of fees collected in excess of those allowed by statute. The thirty-day provision does not apply to appellees' challenges.
The central issue in this appeal is whether the Court of Appeals' decision in Fink v. Department of Public Safety, 852 P.2d 774 (Okla.Ct.App.1992), was correct and whether it should have been applied retroactively. That decision applied section 6-212.1 of title 47 which, prior to its amendment effective April 1, 1995, provided:
A. Whenever a driver's license or a person's privilege to operate a motor vehicle is suspended or revoked pursuant to the provisions of Section 7-506 or 7-605 of this title, the license or privilege to operate a motor vehicle shall remain under suspension or revocation and shall not be reinstated until:
1. The expiration of the revocation or suspension order; and
2. The person has paid a reinstatement fee of One Hundred Dollars ($100.00) to the Department.
B. Whenever a driver's license or a person's privilege to operate a motor vehicle is suspended or revoked pursuant to the provisions of Sections 6-205, 6-205.1, 753 or 754 of this title, the license or privilege to operate a motor vehicle shall remain under suspension or revocation and shall not be reinstated until:
1. The expiration of the revocation or suspension order; and
2. The person has paid a reinstatement fee of One Hundred Fifty Dollars ($150.00) to the Department.
Provided, any person whose driver's license or privilege...
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