State ex rel. Simms v. Simmons ( 1985 )

BICKFORD, Judge,

with whom MALEY AND JENNINGS, JJ., join,

concurring in

part and dissenting in part.

The majority has correctly identified the error of the Trial Division of the Court on the Judiciary. When petitioner moved to amend his prayer from removal to compulsory retirement and the same was allowed by the Court, the Trial Division lost its power to remove the respondent and could only retire him.

The Trial Division determined in this case that it was without authority to grant retirement compensation to the judicial officer since his tenure was less than eight years. The Appellate Division has determined, and correctly so, that the Trial Division was in error in that decision and that Article 7A § 4 of the Oklahoma Constitution as determined by the majority opinion is the determining authority.

In this regard I concur with the majority.

I dissent from the majority, however, where the Appellate Division of the Court on the Judiciary determines the amount of compensation rather than remanding it back to the Trial Division of the Court on the Judiciary to make this determination. After the Appellate Division resolved the legal issue, the case -should be remanded and the factual issue as to whether or not under the evidence presented to the Trial Division, retirement compensation should be granted in this case. Although Article 7A § 5 of the Oklahoma Constitution appears to grant authority to the Appellate Division to determine this factual issue on appeal, it nonetheless appears to me that this factual issue remains the primary function of the Trial Division to decide and they should now be given the opportunity to determine the amount of compensation they find is proper under the facts from the testimony they heard and what they observed.

While it is true that under Article 7A § 5 of the Oklahoma Constitution, the Appellate Division can modify, reverse or enter a new judgment, they should not become the Trial Division and the better policy in my opinion is to let the Trial Division decide this issue under the facts and evidence presented to them. The parties then would have an opportunity to appeal to the Appellate Division on the question only as to whether the Trial Division abused their discretion which I consider to be better procedurally.