¶ 1 The threshold and determinative issue in this cause is whether under the facts and circumstances, particular to this case, the appellants have standing to challenge a trial judge's bench rulings which [by way of sanction] limited their participation in proceedings then pending before her court. For reasons delineated below, we determine that Richard Funk and John T. Schmidt [lawyers or appellants] do lack standing and dismiss their appeal with prejudice to renewal.
FACTS AND PROCEDURAL HISTORY
¶ 2 Appellants represent Gulf Oil Corporation, now Chevron USA, Inc. [Gulf
THE STANDING ISSUE
¶ 3 At a minimum standing is composed of three elements. These components are: (1) a legally protected interest which must have been injured in fact — i.e., an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision.
¶ 4 Aggrieved status is limited to those persons (a) whose pecuniary interest in a protected right is directly and injuriously affected or (b) whose rights in property are either "established or divested" by the trial court's rulings.
¶ 5 Finally, assessment of standing is not a decision on the case's merits. Rather it is a determination whether the plaintiff is the proper party to seek adjudication of the asserted issue.
ASSESSMENT OF FUNK AND SCHMIDT'S STANDING
¶ 6 Oklahoma's extant jurisprudence recognizes that a party's legal counsel has standing, separate from his client, to appeal an order which imposes a monetary sanction
¶ 7 Funk and Schmidt assert that because (1) they possess legally protected property interests in their professional reputations and (2) the trial judge's bench rulings impaired those interests, they have standing.
¶ 8 We are mindful that it is incumbent upon a trial judge to manage the proceedings in his or her court in order to assure orderly process to all parties.
¶ 9 Assuming for the purpose of analysis that Funk and Schmidt do have a legally protected interest in their professional reputation which was harmed in some way by the imposed non-monetary sanctions, their injuries are not remediable under the circumstances of this case. The imposed sanctions consist primarily of limitations on the two lawyers' right to participate in certain oral presentations before the jury.
¶ 10 Assaying standing against the facts disclosed by the record, the lawyers' appeal is in a form which is not capable of judicial resolution. Standing's third component requires there be a reasonable likelihood that the complained of injury will be redressed by a favorable decision.
¶ 12 If the appellants feel that the trial judge's conduct was oppressive, their complaints properly lie with the Court on the Judiciary and not here. The latter tribunal has exclusive jurisdiction to hear causes of that character.
¶ 13 Without reaching the issue whether the appellants' interests in their professional reputations are susceptible to protection from the harm, if any, occasioned by Judge Shallcross' non-monetary sanctions, the appeal is dismissed because the lawyers lack standing to pursue the matter. The Court cannot give them the effectual relief which they seek, i.e.., public remediation of a perceived harm to their professional reputations. Hence, the third component of the Toxic Waste standing test cannot be satisfied.
¶ 15 SUMMERS, C.J., HARGRAVE, V.C.J., SIMMS, KAUGER and WATT, JJ., concur.
¶ 16 WILSON, J., concurs in part; dissents in part.
¶ 17 OPALA, J., dissents.
¶ 18 HODGES, J., not voting.
OPALA, J., dissenting.
¶ 1 The court holds today that lawyers have no standing to seek review of non-monetary sanctions. By making unreviewable that courtroom discipline which visits no pecuniary loss, the court gives the trial bench a carte blanche for boundless mid-trial restrictions on a lawyer's right of audience.
¶ 2 Funk and Schmidt, attorneys for the defendant in an action, were subjected to mid-trial conduct restrictions after the trial judge had perceived their behavior as violative of certain in limine orders. Funk was precluded from questioning witnesses and participating in closing arguments; Schmidt was initially silenced during his closing argument and then barred from involvement in
THE PECUNIARY-LOSS TEST IS A FLAWED STANDARD FOR APPELLATE STANDING
¶ 3 A license to practice law, which creates a constitutionally protected property interest
¶ 4 Reprimands and gag orders can be far more devastating than monetary sanctions. Loss of livelihood and of professional reputation is to be regarded equally as harmful as pecuniary deficit.
¶ 5 The standard for standing to appeal should be the same as that applied in cases of contempt arising from litigation-related misconduct. If one can by right secure review of a contempt conviction that results in a sentence which neither imposes a fine nor suspends its remittance, one should with equal ease be able to appeal from imposition of non-pecuniary sanctions.
¶ 6 Today's pecuniary-loss test also is in discord with the appellate standing standards that govern in nisi prius disqualification of a litigant's counsel of record. One who is aggrieved by a judicially forced exit of a party's chosen counsel — be it the lawyer or her client — may appeal without showing any pecuniary
THE PREDICTABLE AFTERMATH OF TODAY'S RULING
¶ 7 Today's ruling will have a far-reaching effect and a disastrous fallout. It leaves no shred of constraint on the exercise of nisi prius discretion to impose non-monetary discipline. The trial judge's self-generated prudence is now the law's sole gauge of the sanction's correctness. Destroying a lawyer's access to appellate review of non-pecuniary sanctions grants first-instance judges (as well as administrative adjudicators) a veritable license for visiting on forensic advocates unwarranted reprimands, gag orders, and like forms of non-monetary penalty. In short, nisi prius judges (as well as their counterparts in agency decision-making) may now with absolute impunity restrain any legal practitioner's in-trial conduct.
¶ 8 I cannot join today's opinion. Its terms are unacceptable to me because they (a) subject the trial bar to an unregulated courthouse judges' discretion over visiting non-monetary sanctions and (b) abdicate this court's constitutional responsibility to concretize the norms of courtroom etiquette by precedent-setting jurisprudence that will provide guidance for the bench and bar.
The conduct for which Schmidt was sanctioned occurred late in his closing argument. His sanction included being stopped from concluding his remarks and further being barred from all post-trial proceedings in the case.