City of Tahlequah v. Lake Region Electric, Cooperative, Inc. , 47 P.3d 467 ( 2002 )

LAVENDER, J.

T1 Pursuant to the Uniform Certification of Questions of Law Act, 20 0.8.1991 §§ 1601 et seq., the United States Court of Appeals for the Tenth Circuit certified the following question:

Senate Bill 888 [11 0.8.1998 § 21-222] declares a "prospective and retroactive" moratorium on certain municipal condemnations of facilities of rural electric cooperatives and electric utilities. The Oklahoma Constitution, article V, section 52, provides that the legislature lacks "power to take away [a] cause of action" after commencement of a "suit." In light of statements in Oklahoma case law that condemnation matters are special proceedings, not actions at law or suits in equity, does the moratorium affect a condemnation proceeding filed before the enactment of Senate Bill 8887

I

FACTUAL PERSPECTIVE

2 On May 15, 1998 the City of Tahlequah [City] offered to purchase all of Lake Region Electric Cooperative, Inc.'s [Lake Region]¹ electric facilities and service rights within City's corporate limits.² Three days later City instituted a proceeding in the District Court of Cherokee County, Oklahoma to condemn the sought-after interests from Lake Region under the applicable provisions of 18 ©.8.1991 § 487.2(k)³ The United States of America, ex rel. Rural Electric Administration, [REA] was named as party-defendant because it owns a security interest in the property sought to be condemned. On June 19, 1998 REA removed the case to the United States District Court for the Eastern District of Oklahoma.

¶ 3 Upon removal Lake Region moved for the condemnation proceeding's dismissal asserting the statutory moratorium provided for by the terms of 11 § 21-222. The pertinent statutory language is:

There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 487.2 of Title 18 of the Oklahoma Statutes, initiated pri- or to July 1, 2002. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. If full consumer choice in the supply of electric power and energy is implemented in this state on or before July 1, 2002, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities of rural electric cooperatives contained in Section 487.2 of Title 18 of the Oklahoma Statutes is hereby repealed. If retail consumer choice is not implemented in this state on or before July 1, 2002, this moratorium shall become null and void. The moratorium provided for herein shall have prospective and retroactive application. [Emphasis added.]

The U.S. District Court denied Lake Region's motion, holding that because (1) the City-initiated condemnation proceeding is a "cause of action" brought before § 21-222's moratorium became effective and (2) Orna. Const. art V, § 52⁴ denies the Legislature power to abridge a "cause of action" once instituted, the retrouctive moratorium could not be asserted to stop City's condemnation of Lake Region's facilities.

¶ 4 The U.S. District Court appointed commissioners to determine just compensation for the condemned electric facilities The appointed commissioners made their determinations and filed a report. Although Lake Region objected to the report, the same was confirmed on April 23, 1999. Lake Region next appealed [unsuccessfully] to the U.S. Circuit Court of Appeals for the Tenth Circuit. Lake Region then sought a jury trial. On February 29, 2000 an award of $3,746,222.00 was entered by the federal district court as just compensation for City's taking of Lake Region's property.

II

THE COURT'S FUNCTION WHEN RESPONDING TO A CERTIFIED QUESTION FROM A FEDERAL COURT

¶ 5 Because the appeal from which the certified question emanates is not before us for resolution, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is for the United States Tenth Cireuit Court of Appeals to analyze our answer's impact on the case and facts ultimately before it.⁵ Lastly, we note that City raises constitutional questions (based upon the Legislature's alleged repeal of an act and its effect upon vested rights and proceedings instituted to enforce the same) which are neither embraced in nor inextricably intertwined with the U.S. Court of Appeals for the Tenth Circuit's certified question. To the extent that issues (constitutional or otherwise) are raised in the parties' briefs which are beyond the certified question's scope, the Court refrains from addressing the same.

III

CERTIFIED QUESTION ANSWERED

¶ 6 The posited query essentially asks whether the municipal condemnation of part of an electrification system qualifies as a "cause of action" which is protected from legislative abrogation by the provisions of OxraConst. art V, § 52, onee the same is brought in the district court,. Answered simply, a municipal condemnation of the type here in issue is a "special statutory proceeding" and not a "cause of action" as contemplated under art. V, § 52's provisions. Hence, the § 21-222 moratorium on municipal condemnations of electrification systems is not constitutionally infirm since it is outside the purview of the noted constitutional restriction on the Legislature's powers to affect a pending "cause of action."

¶ 7 Oklahoma's extant jurisprudence defines a condemnation proceeding-such as the one here in issue-as a special statutory proceeding designed to determine in a single action the damages for property taken from private persons for public use.⁶ The right of eminent domain or public taking of private property is a fundamental attribute of the sovereign state⁷ that is ciream-scribed by the provisions of OK1A.CONST. art. 2, § 24 which in essence provides that such takings can only be accomplished with just compensation. The power of condemnation lies dormant within the State until such time as the Legislature by specific enactment delineates the manner and through whom it may be exercised.⁸ Such legislative authorization was made by the provisions of 18 0.98.1991 § 437.⁹ which permitted municipalities to condemn electric transmission and distribution lines lying within their corporate limits. Since the Legislature is empowered to authorize municipal condemnations under prescribed guidelines, it can also impose a stay or moratorium on an earlier legislative ly-granted condemnation right. As the challenged legislative act [18 0.8.1991 § 487.2] is facially regular and is a valid exercise of recognized legislative authority, compliance with the statutorily-authorized condemnation procedure will not generate a civil wrong. A cause of action only arises when a wrong or breach of duty by the defendant occurs. It is what produces the necessity of action."¹⁰ When one complies with statutory procedure, no breach of duty happens.

¶ 8 The presence of a civil wrong is a critical identifying characteristic of a "cause of action" since "causes of action" are brought to remedy civil wrongs which are threatened or committed.¹¹ Oklahoma's extant jurisprudence specifically holds that a condemnation proceeding "is a special proceeding and not a civil action. [Authorities omitted] Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity.¹² Because a condemnation proceeding is a special statutory proceeding brought to determine just compensation for a public taking and is not a "cause of action" instituted to remedy a wrong, a legislatively-effected stay of such proceedings would neither implicate nor violate art. V, § 52's cireumseription of legislative power to take away a cause of action-regardless of when the condemnation was instituted. The retroactive moratorium reflected in the terms of § 21-222 is an effective exercise of legislative power which is not constitutionally infirm.

CERTIFIED QUESTION ANSWERED.

19 HARGRAVE, C.J., HODGES, LAVENDER, BOUDREAU and WINCHESTER, JJ., concur. T 10 WATT, V.C.J., OPALA, KAUGER and SUMMERS, JJ., dissent.

1 . Lake Region is a rural electric-power distribution cooperative which provides electricity to its members in a northeast Oklahoma seven-county area. The Rural Electric Administration [REA or now called the Rural Utilities Service] financed and holds a secured interest in Lake Region's facilities pursuant to its mortgage agreements in the condemned property (among others).

2 . City alleges that it made known since 1994 its intention to condemn Lake Region's electrical facilities and service rights within City's corporate limits.

3 . The pertinent provisions of 18 O.S.1991 § 437.2 are:

A cooperative shall have the power:

(k) To ... maintain and operate electric transmission and distribution lines ...;provided further that if such city, town or village in which an area has been or shall be included, as aforesaid, owns and operates a system for furnishing of electric energy to its inhabitants, the cooperative furnishing electric energy in such area shall transfer to such city, town or village, upon its request, the cooperative's electric distribution facilities used in furnishing electric energy in said area ..., subject, however, to the following requirement: The city, town or village shall pay to the cooperative an amount to compensate the cooperative for the fair value of the cooperative's facilities to be acquired by the city, town or village. If such cooperative and city, town or village cannot agree upon the amount to be paid to the cooperative, the city, town or village is authorized to file a proceeding in the district court of the county in which such city, town or village, or any part thereof, is located for the acquisition of the cooperative's electric distribution facilities used in furnishing electric energy in said area.... [Emphasis added.]

4 . Oxta.Const. art. V, sec. 52 provides:

The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit. [Emphasis added.]

5 . Brown v. Ford, 1995 OK 101, 905 P.2d 223, 226.

6 . Graham v. City of Duncan, 1960 OK 149, 354 P.2d 458, 462.

7 . Harn v. State ex rel. Williamson, Atty. Gen., 1939 OK 40, 184 Okla. 306, 87 P.2d 127.

8 . Oklahoma City v. Local Federal Savings & Loan Ass'n of Oklahoma City, 1943 OK 42, 192 Okla. 188, 134 P.2d 565, 575; Harn, supra note 7 at 127.

9 . For the pertinent terms of 18 O.S.1991 § 437.2, see supra note 2.

10 . Howard v. Brown, 1935 OK 357, 44 P.2d 959, 962.

11 . Stone v. Case, 1912 OK 428, 34 Okla. 5, 124 P. 960, 965.

12 . Graham, supra note 6 at 461; see also In re Block I, Donly Heights Addition, Oklahoma City, 1944 OK 213, 194 Okla. 221, 149 P.2d 265, 268, where the Court recognized another specie of special proceeding which lies without the purview of Oxta Const. art V, § 52's provisions.