Cooper v. Booher ( 2004 )

BOUDREAU, J.

¶ 1 Deacon Cooper (Inmate), an inmate at John Lilley Correctional Center in Boley, Oklahoma, tested positive for use of marijuana and received administrative discipline. He appealed unsuccessfully to Glynn Booher (Warden) and then to the Director of the Oklahoma Department of Corrections (DOC), arguing that the drug test was administered in a manner not in accordance with DOC policy and not in accordance with the manufacturer’s recommendations. Inmate then filed what has been called in the papers before us a petition for writ of mandamus in district court asking the court to command prison officials to retest him. Warden responded with a motion to dismiss the petition and a motion for sanctions.¹ In a Journal Entry entered October 18, 2002, the district court dismissed Inmate’s petition, granted Warden’s motion for sanctions and imposed sanctions on Inmate in the amount of $103.50, the costs of the action. Inmate appealed.

¶ 2 The Court of Civil Appeals (COCA) affirmed the dismissal of the petition but reversed the sanction order. COCA held as a matter of first impression that a party who wishes to move for sanctions under 57 O.S. 2002 Supp. § 566 (hereinafter, § 566) must comply with the safe harbor provision that is found in 12 O.S.2001 § 2011(C)(1)(a) (hereinafter, § 2011), despite the fact that § 566 does not itself contain any such requirement.² COCA reversed the sanction award because Warden had not complied with the safe harbor provision. Warden sought certiorari review of the portion of COCA’s opinion that reversed the sanction order. Inmate did not seek certiorari review of the portion of COCA’s opinion that affirmed the dismissal of the petition.

ISSUE

¶ 3 The first impression issue on cer-tiorari is: In an action commenced by an inmate, must a defendant who wishes to move for sanctions under § 566 comply with the safe harbor provision that is found in § 2011. We answer “no”.³

STANDARD OF REVIEW

¶ 4 Because the issue is one of statutory construction, our review is de novo. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1123. In a de novo review we claim plenary, independent and non-deferential authority to examine a trial court’s legal rulings. Manley v. Brown, 1999 OK 79, ¶ 22 n. 30, 989 P.2d 448, 456 n. 30.

ANALYSIS

¶ 5 Fundamental to statutory construction is to ascertain and give effect to legislative intent. City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. We must presume the Legislature expressed its intent in a statute and that the Legislature intended what it expressed. TXO Production Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, 829 P.2d 964, 969. “[W]here a statute’s language is plain and unambiguous, and the meaning clear and unmistakable, no justification exists for the use of interpretative devices to fabricate a different meaning.” Keating v. Edmondson, 2001 OK 110, ¶ 15, 37 P.3d 882, 888.

¶ 6 We first address § 2011. Section 2011 was amended in 1994 to add a special notice provision, commonly referred to as a safe harbor provision, that applies to a party who wishes to file a sanction motion pursuant to § 2011(C)(1)(a).⁴ It provides in pertinent part:

C. SANCTIONS .

1. HOW INITIATED.

a. By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection B of this section. It shall be served as provided in Section 2005 of this title, but shall not be filed with or presented to the court unless, within twenty-one (21) days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

¶ 7 Under the plain meaning of the words, prior to filing a sanction motion pursuant to § 2011(C)(1)(a) the movant must serve the motion on the offending party and wait at least twenty-one days. Only if the offending party does not withdraw or appropriately correct the challenged paper, claim, defense, contention, allegation, or denial within twenty-one days after service may the movant file the motion. We have said that the purpose of the sanction provision in § 2011 is to discourage pleadings, motions or other papers that are frivolous or are filed for an improper purpose such as delay. State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 17, 61 P.3d 234, 244.

¶ 8 We now turn to § 566. This statute was last amended effective July 1, 2002.⁵ Among other things, the amendment made § 566 applicable to any action (instead of any civil action) filed by any inmate (instead of any inmate in a penal institution appearing pro se) against any person, party or entity (in addition to the state, the Department of Corrections, another state agency, or political subdivision). Section 566, as amended in 2002, provides in pertinent part:

A. Any action initiated against any person, party or entity, the state, the Department of Corrections, another state agency, or political subdivision, or an original action in an appellate court, or an appeal of an action whether or not the plaintiff was represented in the district court, by an inmate may be:

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2. Dismissed with prejudice ... on a motion of the defendant, if the court is satisfied that the action is frivolous or malicious.

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C. If the court determines before or at trial that one or more of the causes of action are frivolous or malicious, any one • or more of the following sanctions may be imposed:

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2. Court costs not to exceed Five Hundred Dollars ($500.00) per cause of action;

¶ 9 We see no ambiguity in this language and therefore we must apply the plain meaning of the words. Keating v. Edmondson, supra. Under the plain meaning of the words, § 566 authorizes the court to impose sanctions on an inmate who initiates a frivolous or malicious action; § 566 does not require the defendant to comply with any safe harbor provision like that found in § 2011.

¶ 10 Our conclusion that § 566 does not incorporate the safe harbor provision of § 2011 is reinforced by the fact that the Legislature amended § 566 in 2002. At the time of the 2002 amendment to § 566, the safe harbor provision had already been in effect in § 2011 for eight years. If the Legislature intended to add a safe harbor provision to § 566, it could have used the same language it used in its 1994 amendment to § 2011. See, e.g., Ind. School Dist. #I-20 of Muskogee County v. Oklahoma St. Dept. of Education, 2003 OK 18, ¶ 16, 65 P.3d 612, 619. The intent of the Legislature to keep the two statutes separate is clear. Being fully aware of the burden of frivolous and malicious litigation by inmates, the Legislature chose not to incorporate the safe harbor provision of § 2011 into § 566.

CONCLUSION

¶ 11 We hold that the safe harbor provision that is applicable to sanction motions filed pursuant to 12 O.S.2001 § 2011 does not apply to sanction motions filed pursuant to 57 O.S.2002 Supp. § 566. We vacate the portion of the opinion of the’ Court of Civil Appeals that reversed the trial court’s sanction order and we affirm the trial court’s sanction order. Since no party sought certiorari with respect to any other portion of the opinion of the Court of Civil Appeals, we leave undisturbed the balance of that opinion.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED IN PART; TRIAL COURT JUDGMENT AFFIRMED.

WATT, C.J., and HODGES, LAVENDER, HARGRAVE, BOUDREAU, WINCHESTER, and EDMONDSON, JJ., concur. OP ALA, V.C.J., dissents and writes separately. KAUGER, J., concurs in part and dissents in part (joins OP ALA, V.C.J.).

1 . The appellate record is incomplete. It has some attributes of a record on accelerated appeal under Okla. Sup.Ct. R. 1.36, but it lacks Inmate's petition and Warden's motions. Consistent with Rule 1.36, the parties did not file appellate briefs. Because of the sparse record, we glean the factual and procedural history from the district court docket sheet, Petition in Error, Response to Petition in Error and Petition for Writ of Certiorari.

2 . Both Section 566 and Section 2011 allow either the court or a party to initiate the sanction process. In this case, Warden initiated the process by filing a motion for sanctions. Accordingly, in this opinion we will discuss these statutes only in the context of party-initiated sanctions, not in the context of court-initiated sanctions.

3 . The dissent suggests that this issue cannot be adequately addressed without deciding whether an inconsistent procedural approach for § 2011 and for § 566 offends the state's constitutional prohibition against disuniform procedure and the equal protection clause of the 14th Amendment of the U.S. Constitution. We disagree. In his petition in error, Cooper identified two issues for appeal. He contended (1) that his petition was not frivolous and (2) that there was not enough money in his prison account to pay the sanctions imposed. He raised no constitutional issue in his petition in error. In reversing the sanction award, the Court of Civil Appeal’s opinion held, as a matter of statutory construction, that § 566 is an extension of § 2011, but applicable to a specific category of litigant, an inmate in a penal institution. In its opinion, the intermediate appeals court did not rest its holding on any provision in our state or federal constitutions.

Ordinarily, where the record clearly shows that the question of the constitutionality of an act was not presented to the trial court, and no reference to the constitutionality of an act appears on the record on appeal, such question will not be considered on appeal by the Supreme Court. Springfield Fire & Marine Ins. Co. v. Biggs, 1956 OK 114, 295 P.2d 790; Garman v. Myers, 1938 OK 406, 80 P.2d 624. Due process claims and public law controversies are sometimes an exception to the requirement that constitutional issues, or any issues for that matter, must be raised in the lower court. However, the fact that a dispute may be characterized as a public law controversy does not compel this Court to identify and decide all conceivable constitutional claims. For instance, we have held that a workers' quest to receive compensation for an on the job injury is a statutory public law proceeding, not a private dispute. Yeatman v. Northern Oklahoma Resource Center, 2004 OK 27, 89 P.3d 1095, (2004). Yet, in Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218, we refused to consider an equal protection challenge (the same challenge the dissent urges we address here) by firefighters attacking the constitutionality of a presumption that they contended placed them in a special class.

4 . Section 2011(C)(1)(a) is virtually identical to its federal counterpart, Rule 11 of the Federal Rules of Civil Procedure. Rule 11 was amended to add a safe harbor provision effective December 1, 1993. The corresponding amendment to § 2011 became effective September 1, 1994. 1994 Okla. Sess. Laws ch. 343 § 11.

5 . 2002 Okla. Sess. Laws ch. 402 § 8.