NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS.
UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
ORDER
The petition for certiorari is premature because the Court of Civil Appeals Division III Opinion filed on September 9, 2013, lacks a majority vote. Pursuant to the Okla. Const. art. 7, §5, a concurrence of the majority of the Justices is necessary to decide any question. Likewise, a majority of three panel members of the Court of Civil Appeals is required for a majority decision. 20 O.S. 2011 §30.2. Concurring, and concurring specially votes are treated as a full concurrence and may be counted in obtaining a majority vote. Concurring-in-result and concurring-in-judgment votes may not be counted as votes to form a majority opinion. The opinion is hereby vacated and this cause is remanded to the Court of Civil Appeals Division III for the issuance of a majority opinion.
http://www.oscn.net/static/osc-ojs-brochure-online.pdf, page 9 provides in pertinent part:
Under art. 7, §5 of the Oklahoma Constitution, the concurrence of the majority of the Justices is necessary to decide any question. Because the Oklahoma Supreme Court is composed of nine members, an opinion must receive at least five votes. Other Justices may write dissenting opinions. Even if a Justice agrees with the result reached by the majority opinion, the Justice may author a concurring, concurring specially, concurring-in-result, or concurring-in-judgment opinion stating the reasons why the law as stated by the majority opinion is correct in the cause presented. If a Justice agrees with the law expressed in an opinion, the vote is to concur. If the Justice disagrees with the law as expressed or applied in an opinion, the vote is a dissent. Concurring and concurring specially votes are treated as a full concurrence and may be counted in obtaining a majority vote. Concurring in result and concurring in judgment votes may not be counted as votes to form a majority opinion. . . .
See, Boelman v. Contractor Services, Inc, 2010 OK CIV APP 81, ¶16, 240 P.3d 23 which cites the brochure language verbatim.
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DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 9th DAY OF DECEMBER, 2013.
VICE - CHIEF JUSTICE
REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ., concur.
COLBERT, C.J, WATT, J., dissent.
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