Stonecipher v. District Court of Pittsburg County

• Decision Date: 08 December 1998
• Docket Number: No. 87898,87898
• Citation: 970 P.2d 182,1998 OK 122
• Parties: Darrell G. STONECIPHER and Rhonda Long, Appellants, v. DISTRICT COURT OF PITTSBURG COUNTY, The Honorable Steven Taylor, District Judge, Appellee.
• Court: Oklahoma Supreme Court

Page 182

970 P.2d 182

1998 OK 122

Darrell G. STONECIPHER and Rhonda Long, Appellants, v. DISTRICT COURT OF PITTSBURG COUNTY, The Honorable Steven

Taylor, District Judge, Appellee.

No. 87898.

Supreme Court of Oklahoma.

Dec. 8, 1998.

Certiorari to the Oklahoma Court of Civil Appeals, Division III.

¶0 Public employees sought mandamus in the District Court of Pittsburg County to compel the striking of their names from a grand jury report recommending their termination from public employment. The Honorable Stephen W. Taylor, District Judge, denied relief to employees and they appealed. The Court of Civil Appeals affirmed the denial of relief. We hold that when the content of a grand jury report is limited by mandatory statutory language the persons aggrieved thereby may obtain relief by mandamus in the District Court to require the report to comply with the statutory restrictions.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED; AND CAUSE REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO EXPUNGE PORTIONS OF GRAND JURY REPORT.

Neil Whittington, Atoka, Oklahoma, Larry G. Grant, Antlers, Oklahoma, for the Appellants.

W.A. Drew Edmondson, Attorney General, Kent Sutton, Asst. Attorney General, O.R. Barris, III, Asst. Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Appellee.

SUMMERS, V.C.J.

¶1 A grand jury report, contrary to a statute regulating grand juries, criticized two public employees and recommended their termination from employment, but did not name them as subjects for indictment or ouster. May the employees successfully bring an action in mandamus to require the judge in charge of the grand jury to expunge from the report the language prohibited by statute? We hold that they may. We reverse the lower court's ruling, and remand with instructions.

¶2 Plaintiff Stonecipher was Chief Deputy Sheriff for Pittsburg County. Plaintiff Long was a supervisor in Child Welfare at the local Department of Human Services (DHS). The sad death of a Departmentally-placed child, whose name, Ryan Luke, is still familiar to most Oklahomans, resulted in intense scrutiny of the local sheriff's office and the DHS, among others. A grand jury was summoned and empaneled.

¶3 On July 7, 1995 the grand jury presented its final report. Among other subjects it discussed the Pittsburg County Sheriff's office and the Child Welfare Division of the local DHS office. The report concluded that the Sheriff should be indicted and ousted, but then went on to talk about Deputy Stonecipher. It criticized the Sheriff for his handling of two sexual harassment complaints against Stonecipher (which, according to the report, Stonecipher admitted to the grand jury) and recommended that Stonecipher, by name, be immediately terminated as Chief Deputy, as he was "a liability to Pittsburg County."

¶4 In addition the report scrutinized the Child Welfare Division of the local DHS. It recommended that Long, as supervisor over treatment, be immediately terminated. It stated that inasmuch as her position may have been politically obtained, and her judgment may have been influenced by politics, that she did not act in the best interests of the deceased child. The grand jury did not return indictments nor ouster proceedings against Stonecipher or Long. The report was duly filed.

¶5 Oklahoma has, as do many states, a statute limiting grand jury comment as to persons neither indicted nor accused in ouster proceedings. Title 22 O.S.1991 § 346 provides:

In addition to any indictments or accusations that may be returned, the grand jury, in their discretion, may make formal written reports as to the condition and operation of any public office or public institution investigated by them. No such report shall charge any public officer, or other person with willful misconduct or malfeasance, nor reflect on the management of any public office as being willful and corrupt misconduct. It being the intent of this section to preserve to every person the right to meet his accusers in a court of competent jurisdiction and be heard, in open court, in his defense. (Emphasis added.)

¶6 Armed with this statute, Stonecipher on June 12, 1996 went to the local district court for a Writ of Mandamus, or in the alternative, Motion for Expungement of a Portion of the Grand Jury Report. On July 2 Long joined him, without objection, as a party plaintiff. There was a hearing that date, at which both plaintiffs testified that their careers had been adversely affected and that they and their families had suffered emotionally due to the material in the report. An assistant Attorney General appeared at the hearing in opposition to the relief requested.

¶7 The Respondent Judge of the District Court, after hearing testimony and argument of counsel, denied the Petition and Motion to Expunge. He found, first, that the report did not violate the intent of § 346. He found that the references to the two complaining individuals were nothing more than the grand jury's way of informing the Sheriff and the DHS of the nature of its charges and what changes should be made. He further found that even if the report did violate § 346 he had no authority to edit or rewrite a report that had been on file for nearly a year. He made no reference to laches or any comparable language of time-bar. The Plaintiffs appealed.

¶8 The Court of Civil Appeals disagreed with the trial court as to the applicability of § 346, holding that the use of Plaintiffs' names in the report was a violation. It held, however, that relief was barred by laches. It further held that the trial court had no authority to edit or take from the filed document. It did not get to the issue of whether the trial court has the power to edit or review a tendered, non-filed, grand jury report. We have granted certiorari.

I. THE DEFENSE OF LACHES

¶9 "Mandamus" is a special proceeding addressing itself to the equity powers and conscience of a court or judge for the enforcement of a clear legal right for which the law provides no adequate remedy. State ex rel. Westerheide v. Shilling, 190 Okla. 305, 123 P.2d 674, 679 (Okla.1942). There is no statute of limitations as such to mandamus, Stephenson v. Bonney, 202 Okla. 549, 216 P.2d 315, 318 (Okla.1950), but mandamus will not issue when barred by laches. Young v. Kirk, 1955 OK 177, 292 P.2d 1009, 1011-1012. We have, however, applied statutes of limitations to mandamus proceedings "by analogy" where there is an applicable statute of limitations for a legal proceeding involving a similar cause of action, which thus governs the applicability of laches. Hutchman v. Parkinson, 199 Okla. 494, 187 P.2d 999, 1002 (Okla.1947); Board of Education v. Johnston, 189 Okla. 172, 115 P.2d 132, 133 (Okla.1941). This application is consistent with our opinions explaining that in an equitable proceeding no strict application of limitations will occur, but a court may, by analogy, apply in such a proceeding the limitations period for a similar legal action. See, e.g., Baker v. Massey, 1977 OK 170, n. 12, 569 P.2d 987, 992.

¶10 Laches is an equitable defense to stale claims. B & M Intern. Trading Co. v. Woodie Ayers Chevrolet, Inc., 1988 OK 133, pp 9-10, 765 P.2d 782, 783. It is an affirmative defense whereby the person relying on it has the burden of proof. Sooner Federal Savings & Loan v. Smoot, 1995 OK 31, p 21, 894 P.2d 1082, 1090. The statute of limitations is also an affirmative defense, Red Eagle v. Free, 191 Okla. 385, 130 P.2d 308, 311 (Okla.1942). Affirmative defenses such as laches and statutes of limitation must be raised by the parties or are waived. Furr v. Thomas, 1991 OK 93, p 23, 817 P.2d 1268, 1272.

¶11 We have reviewed the pleadings in the trial court, together with the transcribed statements and arguments of counsel. We do not find any reference to the defense of laches or to a time-bar by any other name. The first time it is raised as a defense is in Respondent's brief on appeal. Matters not first presented to the trial court for resolution are generally not considered on appeal. Steiger v. City National Bank, 1967 OK 41, 424 P.2d 69, 72. This is particularly true as to affirmative defenses not raised below. See Reddell v. Johnson, 1997 OK 86, 942 P.2d 200, 202, 203, (appellate court could not raise for first time the statute of limitations.) In the event the eleven month delay in filing suit might have been a defense, we deem it waived at this point, and move on.

II. THE GRAND JURY REPORT AND THE STATUTE

¶12 The trial court and appellate division differed on whether the grand jury violated 22 O.S.1991 § 346. We believe the Court of Civil Appeals was correct. The report not only disclosed that Stonecipher had been the subject of sexual harassment complaints, but that he had admitted to them, and should be fired as "a liability to Pittsburg County." We believe this language amounts to a charge of "willful misconduct", publication of which is prohibited by law.

¶13 As to Long, the report publicized her job performance as being so politically influenced that she did not act in the best interests of the child, and that she likewise should be immediately terminated. Again, we find this language suggestive of willful and corrupt misconduct, and within the prohibitions of the statute.

¶14 We need not speculate on the public policy behind § 346; it is right there in the final sentence:

It being the intent of this section to preserve to every person the right to meet his accusers in a court of competent jurisdiction and be heard, in open court, in his defense.

The public policy as so codified was ignored by the grand jury. This statute uses the word "shall", and we have often explained that this word indicates a mandatory duty, unless otherwise is indicated by the context in which it appears. Minie v. Hudson, 1997 OK 26, n. 13, 934 P.2d 1082, 1085, citing, Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, 619...