Dunkelbaaaaad.

This is the first of what I hope will be a growing number of posts on this site: brief analysis on current points of law. The topic in question here is the retrospective application of newly enacted statutes to cases begun prior to the effective date of those statutes. The jurisdiction is Oklahoma.

The Supreme Court of Oklahoma, in an as-yet-unpublished opinion (Williams Companies Inc. v. Dunkelgood, 2012 OK 96), held that applying 85 O.S. sec. 340(D) (eff. 8/26/11) to a case accruing before the effective date “would allow the unconstitutional abrogation of an accrued right.” Williams Companies Inc., 2012 OK 96, par. 18. The accrued right at issue is the standard of review. The Court explained that “[g]enerally, a statute or its amendments will have only prospective effect unless it clearly provides otherwise.” Id. But the Court ignores the explicit language in 85 O.S. sec. 340(D), which renders the provision applicable “regardless of the date of injury.” If that language does not “clearly provide otherwise,” I’m not sure what does.

The Court explains “the standard of review…is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary.” Williams Companies Inc., 2012 OK 96, par. 18. The Court proclaims the standard of review a substantive right without explaining why this might be so. Moreover, the Court appears to have ignored relevant case law on this account: “Because section 3.6(C) is an amendment ‘in the nature of a directive’ to the appellate courts rather than an amendment affecting ‘the substance’ of a workers’ compensation claim, we find it is a change in the ‘mode of procedure’ subject to retrospective application.'” Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, par. 25. Mobile Mini is a Court of Appeals case and is not bindingly precedential, but it is persuasive and directly on point.  It is also directly contradicted by the Williams Companies opinion and to my mind WiIliams Companies ought to explicitly overrule it.

Could it be that no one brought Mobile Mini to the Court’s attention? It seems doubtful, but Williams Companies cites plenary other case law on the subject of retrospective application of workers’ compensation statutes (in Oklahoma we reform workers’ compensation a lot–something like five comprehensive overhauls in ten years). Why leave Mobile Mini out?

The procedural/substantive distinction is extremely significant in my line of work, where I argue for or against retrospective application of the most current statute every other day. I wish the Supreme Court of Oklahoma hadn’t played so fast and loose with declaring the standard of review “substantive.” I am virtually certain to be haunted by the lack of explanation here in the near future. I also wish the Supreme Court had tied up the loose end of Mobile Mini. It simply isn’t very persuasive to argue that a case has been overruled by not being mentioned when directly on point–but if it hasn’t been overruled, what is its status?