State ex rel. Bd. of Regents of the Univ. of Okla. v. Lucas, 110,283.

Decision Date05 March 2013
Docket NumberNo. 110,283.,110,283.
Citation297 P.3d 378
PartiesSTATE of Oklahoma, ex rel., BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA, ex rel., Campus Disciplinary Council of the University of Oklahoma, Petitioner, v. The Honorable Tom A. LUCAS, District Judge of the District Court of Cleveland County, Respondent, and Frank George, Real Party In Interest.
CourtOklahoma Supreme Court

OPINION TEXT STARTS HERE

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR EXTRAORDINARY RELIEF

¶ 0 A student at the University of Oklahoma filed a petition in the District Court of Cleveland County to obtain judicial review of a decision made by the University of Oklahoma Campus Disciplinary Council. The University filed a motion to dismiss the petition and argued that the Oklahoma Administrative Procedures Act did not authorize appellate jurisdiction in the District Court. The Honorable Tom A. Lucas, District Judge, District Court of Cleveland County, denied the motion to dismiss, stayed proceedings, and certified the court's order for interlocutory certiorari review on the issue of the appellate jurisdiction of a District Court exercised pursuant to the Oklahoma Administrative Procedures Act. The Court granted the petition for interlocutory certiorari. We recast the petition to review a certified interlocutory order to an application to assume original jurisdiction and petition for a writ of prohibition. We hold that: (1) 75 O.S. § 250.4(B)(12) does not expressly provide for application of Article II of the Administrative Procedures Act when a student is subject to discipline less than expulsion for an institutional rule infraction; (2) the remedy of an independent District Court civil action is an adequate remedy for an alleged violation by the University of a student's rights to due process in a University disciplinary proceeding; (3) the possibility of a subsequent institutional offense that is subject to Article II of the Administrative Procedures Act having an enhanced punishment because of former offenses does not require the former offenses to be also subject to Article II of the Administrative Procedures Act; and (4) absent unusual circumstances not present here, we decline in a supervisory writ proceeding to adjudicate constitutional arguments that were not adjudicated in the District Court.

PETITION TO REVIEW A CERTIFIED INTERLOCUTORY ORDER RECAST TO APPLICATION TO ASSUME ORIGINAL JURISDICTION; ORIGINAL JURISDICTION ASSUMED; AND PETITION FOR WRIT OF PROHIBITION GRANTED

Samuel L. Talley, Douglas S. Crowder, Talley, Crowder & Talley, Norman, Oklahoma, for Plaintiff/Respondent.

Shawnae E. Robey, Julia H. Messitte. Office of Legal Counsel, University of Oklahoma, Norman, Oklahoma, for Defendant/Petitioner.

EDMONDSON, J.

¶ 1 This proceeding was commenced in the District Court as an administrative appeal from student disciplinary proceedings at the University of Oklahoma. We conclude that the District Court lacked administrative appellate jurisdiction and direct the District Court to dismiss the administrative appeal. We do not resolve the claims by the student that the University failed to use the constitutionally proper procedures for imposing discipline on him. These claims were not adjudicated by the District Court, and we conclude that students have available District Court remedies for constitutionally improper student discipline when the Oklahoma Administrative Procedures Act does not provide them with an administrative appeal. Because the controversy is improperly before us on a discretionary petition for certiorari, we recast that petition to an application to assume original jurisdiction and a discretionary petition for a writ of prohibition, and we direct the Clerk of this Court to correct the style of the proceeding on the docket of this Court.1

¶ 2 Frank George, a student at the University of Oklahoma (University), was charged by the University with violating five provisions of the University's student code. The Campus Disciplinary Board (CDB) found that he was guilty of violating three provisions of the Code: 16.4 (Failing to Comply with Directions of Institutional Officials), 16.65 (Public Drunkenness), and 16.25 (Violating Applicable Local, State, or Federal Laws). He appealed to the University's Campus Disciplinary Council (CDC) and alleged that the evidence was insufficient for the administrative decisions that the student code had been violated. The CDC “invited Mr. George to provide a written submission regarding the insufficiency of the evidence, and invited the University to respond.” Petition for Review, Plaintiff's Exhibit 2, pp. 1, 10. The CDC reviewed the statements of the witnesses and the student, and in its written decision concluded that the student had failed to meet his burden to show that the evidence against him was insufficient. The decision of the CDB was sustained by the CDC.

¶ 3 George filed a petition for review in the District Court of Cleveland County seeking administrative appellate review of a final agency decision. The University filed a motion to dismiss with two attached exhibits and raised insufficiency of service of process and lack of jurisdiction pursuant 75 O.S.2011 § 250.4(B)(12), a provision of the Oklahoma Administrative Procedures Act.

¶ 4 George responded to the motion to dismiss. He argued that: (1) Prior to the CDB hearing the written notice of the University stating George's code violations did not explain to him with sufficient specificity why he was charged with the code violations; (2) The notice did not give notice to him that he was being prosecuted for possession of a false identification card or possessing alcohol under the legal age for possession; (3) He was not given notice of rights to review and appeal; (4) The only testimony against him at the CDB hearing was from a University of Oklahoma Police Officer; (5) Written statements of officers not present at the hearing were considered by the CDB; (6) George informed the University that he expected all witnesses to be used against him to be present at his hearing; and (7) University counsel advised the CDB and another lawyer employed by University prosecuted George. George appealed the adverse decision of the CDB to the CDC, and then the adverse decision of the CDC to the District Court. George then argued that his allegations of violations of due process demonstrated that the District Court had appellate jurisdiction of the decision made by the University's Campus Disciplinary Council.

¶ 5 The University filed a reply with three additional attached exhibits and argued that the appellate jurisdiction of the District Court was not based upon whether George had alleged due process violations, but whether the Administrative Procedures Act provided for appellate jurisdiction. The District Court denied the motion to dismiss. The University sought review in this Court by a petition for certiorari and the request for review was granted.

I. Petition for Certiorari to Review of Certified Interlocutory Order Recast to Petition to Assume Original Jurisdiction and Issue Prohibition

¶ 6 The order in the District Court before us on review is titled “Final Judgment.” However, it is an interlocutory order anterior to judgment and the order is neither final nor a judgment.2 The trial judge certified his nonfinal ruling for discretionary appellate review under the provisions of 12 O.S.2011 § 952(b)(3) and Supreme Court Rule 1.50.3 The provisions of § 952(b)(3) plainly require that the interlocutory order certified for our review affect a substantial part of the merits of the controversy.” City of Lawton v. Intern. Union of Police, 2002 OK 1, n. 27, 41 P.3d 371, 376 (emphasis added). The requirement that the order affect a substantial part of the merits of the controversy is a statutory limitation on our certiorari power to review pursuant to § 952(b)(3). In Ward Petroleum Corp. v. Stewart, 2003 OK 11, 64 P.3d 1113, we stated that “Our power to review certified orders is limited to those involving issues which affect a substantial part of the merits of a controversy.” Id. at ¶ 1, 64 P.3d at 1114.

¶ 7 The claim made by the University was that the District Court was without subject matter appellate jurisdiction. This Court has examined jurisdictional claims within certiorari review of a certified interlocutory order without commenting on whether the jurisdictional claims involved the merits of the controversies.4 However, a claim based upon a lack of jurisdiction is usually considered to be a claim not affecting the merits of the controversy.5 If we consider George's claims as solely jurisdictional, then the issue to be reviewed is not on the merits of the controversy and certiorari review is improper.

¶ 8 Our opinions have indicated that it is possible for a jurisdictional issue to be intertwined with an issue on the merits of a controversy,6 and for a challenge to subject matter jurisdiction to include a challenge on the merits of a controversy.7 Federal courts have explained that a jurisdictional issue is intertwined with the merits when the subject matter jurisdiction is dependent upon a issue that is also an element to the merits of the cause of action, and the adjudication of the jurisdictional issue necessarily adjudicates a cause of action or defense thereto.8 A similarcircumstance occurred in Flick v. Crouch, 1967 OK 131, 434 P.2d 256, where we explained that an adjudication by a District Court of a party's status as an employee would determine whether a District Court or the State Industrial Court had jurisdiction, and a defendant's plea raising that status “goes to the merits.” Id. 434 P.2d at 261.

¶ 9 The method of review herein is by certiorari to review a certified interlocutory order. In federal courts, when a motion to dismiss for lack of jurisdiction is intertwined with the merits of the controversy the court is required to convert the motion to dismiss into either (1) a motion to dismiss for failure to state a claim upon...

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