Dank v. Benson

2000 OK 40, 5 P.3d 1088, 71 O.B.A.J. 1292, 2000 Okla. LEXIS 39, 2000 WL 665539

Opinions

OPALA, J.,

concurring.

¶1 The court declines today to take original cognizance of this cause which tenders a claim against the Speaker of the House of Representatives by a member-legislator who seeks judicial declaration that certain internal procedures for processing bills to final passage contravene the provisions of Art. 5, § 34, Okl. Const.¹ The petitioner urges that the offending procedures be declared infirm and be replaced by those-to be crafted by this court² -which would be made conformable to the mandates of that section. I write separately in concurrence to add my own analysis of some points in contest.

THE PROCESS APPLIED IN THIS CAUSE DID NOT ABRIDGE THE SPEAKER'S CLAIMED IMMUNITY

T2 The Speaker moved that he be dismissed from the cause because he "cannot be haled before the Supreme Court to answer for his legislative activities...." His motion unmistakably invokes the "absolute immunity" claimed to be conferred by the so-called Speech or Debate Clause in Art. 5, § 22, OKI. Const.³ The Speaker's motion has not been reached for disposition. It remains pending. The court's opinion explains that "it is not necessary to reach the respondent's claim of immunity" because we "decline to assume original jurisdiction" over this cause and grant no relief against the claimed-to-be-immunized Speaker.

3 The immunity interposed by the Speaker, if indeed his due in this cause, does not free him of the law-imposed responsibility to move this court for his dismissal from the suit.⁴ The duty to determine whether a movant's invoked legislative immunity applies to the action is cast on the court entertaining the case. Even if the Speaker's fundamental-law exemption were deemed to be inmunity from suit as well as from Hability,⁵ he is immune neither from the court's process nor from its service.⁶ The court's refusal to reach the motion to dismiss is hence free from constitutional flaws.⁷

II

TODAY'S PRONOUNCEMENT DOES NOT SIGNAL A RETREAT FROM THE COURTS FUNDAMENTAL-LAW RESPONSIBILITY TO REVIEW GOVERNMENT ACTIONS THAT ARE CHALLENGED IN THE FRAMEWORK OF A JUSTICIABLE CONTROVERSY FOR LACK OF CONFORMITY TO THE COMMANDS OF THE CONSTITUTION

14 No one need be alarmed by today's refusal to accept a nonjusticiable claim. The public must be protected against the judiciary's excessive intrusion into day-to-day conduct of government by operating an on-demand answering service for questions about constitutional orthodoxy.

T 5 Today's pronouncement does not decide that all intracameral⁸ controversies over internal procedures ⁹ are unsuitable for judicial testing. Neither does it settle the notion that a legislator's claim-based on his/her severely impaired capacity to participate in an informed deliberation before final passage of a bill-may not be fit for judicial relief. The court's rejection of petitioner's challenge rests solely on its conclusion, in which I coneur, that nonjusticiability makes this controversy unsuitable for judicial cognizance.

16 Judicial cognizance cannot be invoked by pressing a nonjusticiable controversy-one that presents nothing more than an academic or abstract issue.¹⁰ Unlike the State's Attorney General, this court cannot serve government officials by routinely answering their requests for guidance on the conformity of contemplated or taken actions to the Constitution's mandate.¹¹ The barriers of justici-ability ¹² prevent judges from roving outside the judicial role and giving voice to abstract grievances.¹³ Courts are not roving commissions assigned to pass Judgment on the validity of internal legislative procedures. Constitutional judgments are justified only out of the strict mecessity generated in particular cases in which rights between the litigants brought before the court must be adjudicated.¹⁴ Mere intracameral disagreement over the constitutional norms that chart the boundaries of internal procedures is not enough to supply the critical element of justi-ciability.¹⁵ Much more is required of this claim by a legislator who seeks judicial declaration that certain internal procedures for processing bills to final passage contravene the provisions of Art. 5, § 34, Ok. Const.¹⁶

T7 No one should assume from today's pronouncement that under no ctreumstances can a legislator's claim be remediable when it is rested on a deprived or impaired opportunity to participate in the "informed deliberative process." Extant federal jurisprudence persuasively demonstrates that relief must be crafted to vindicate the claim of an individual legislator who also tenders a public right. In at least two cases ¹⁷ found justiciable, a wrongly expelled lawmaker was reinstated to his legitimate office-holder status.¹⁸ If pre sented in a justiciable posture, a significant impairment of a lawmaker's access, in a legislative assembly, to informed deliberation could be argued as akin to pro tanto expulsion from office.¹⁹ Im short, judicial self-restraint is not without limil.

18 At the core of petitioner's complaint are certain internal procedures alleged to give her too little time for informed deliberation before complex bills are processed to final passage. If the handicap dealt her by these procedures could be said to diminish her effect on the bill's progress in a manner akin to a legislator's pro tanto ²⁰ exelusion ²¹ from participating in the work of the assembly or be found similar in result to reduction of her vote's weight in an assembly tainted by geographic maldistribution of representatives,²² the negative impact on her effectiveness and the ensuing harm to the constituency would be apparent. In short, internal procedures may produce adverse extracam-eral²³ consequences not only upon passage of bills to final adoption but also upon full-breadth participation of a chamber's membership.

SUMMARY

T9 The court did not abridge the Speaker's claimed immunity nor did it abdicate its duty to test the legality of those government actions that stand presented in a posture suitable for judicial relief.

Footnotes

1

. The terms of Art. 5, § 34, OKI. Const., are:

Every bill shall be read on three different days in each House, and no bill shall become a law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law; and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal.

(emphasis supplied).

2

. Constitutional jurisprudence of long vintage and unimpeachable authority teaches with unmistakable clarity that under the separation of powers commanded by Art. 4, § 1, Okl. Const., the Supreme Court may neither claim for itself-nor exercise legislatively conferred-power to promulgate rules that would regulate the conduct of any organ of state government other than of judicial institutions inferior in rank. Sterling Refining Co. v. Walker, 1933 OK 446, 25 P.2d 312, 320. For my earlier description of the Sterling holding, see Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1233, n. 30 (Opala, J., dissenting in part); Petuskey v. Cannon, 1987 OK 74, 742 P.2d 1117, 1125 n. 4 (Opala, J., concurring); State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763, 767 (Opala, J., concurring).

3

. The text of Art. 5, § 22, OKI. Const., is:

Senators and Representatives shall, except for treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, and, for any speech or debate in either House, shall not be questioned in any other place.

4

. When immunity is granted but the controversy is deemed justiciable the case need not be over. See, e.g., Powell v. McCormack, 395 U.S. 486, 504-05, 89 S.Ct. 1944, 1955-56, 23 L.Ed.2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.C. 1425, 1427-28, 18 L.Ed.2d 577 (1967); Kilbourn v. Thompson, 103 U.S. (13 Otto.) 168, 202, 26 L.Ed. 377 (1880), where the Court dismissed the actions against the congressmen but allowed them to proceed against substituted parties-legislative employees who implemented the legislators' unconstitutional orders and resolutions. I

5

. It is unnecessary to pass here on the distinction between an immunity from suit and one from liability. For cases that recognize that distinction, see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993); Bergner v. State, 144 Conn. 282, 130 A.2d 293 (Conn.1957); Handmaker v. Henney, 128 N.M. 328, 992 P.2d 879, 883-84 (1999); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.1999); Descant v. Administrators of the Tulane Educational Fund, 639 So.2d 246, 249 (La.1994); Cundiff v. Crider, 303 Ark. 120, 792 S.W.2d 604, 606 (1990); Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641, 651-52 (1984); Guillaume v. Staum, 328 N.W.2d 259, 261 (S.D.1982); Miller v. Chou, 257 N.W.2d 277, 280 (Minn.1977); State v. F.W. Fitch Co., 236 Iowa 208, 17 N.W.2d 380, 384 (1945).

6

. Powell, supra note 4, 395 U.S. at 505, n. 25, 89 S.Ct. at 1956; Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951); Gravel v. U.S., 408 U.S. 606, 618-21, 92 S.Ct. 2614, 2624-25, 33 L.Ed.2d 583 (1972).

7

. Immunity from suit or liability presents for analysis a concept different from that of immunity from service of process. Bingham v. Bingham, 1961 OK 263, 366 P.2d 396, 398.

8

. "'Intracameral", as used in the text, means occurring in and applicable to the internal operations of a legislative chamber. "Cameral" is defined as "of or relating to a legislative or judicial chamber,." Webster's Third New International Dictionary at 322 (1961). The term "intra" means "within", "during" or "internal." Id. at 1185.

9

. Judicial intrusion upon internal procedures of a legislative assembly must be consistent with the autonomy of each chamber, which is commanded by Art. 5, § 30, OkIl. Const. The pertinent terms of § 30 are:

Each House may determine the rules of its proceedings....

10

. Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143; Northeast Okl. Elec. v. Corporation Com'n, 1991 OK 28, 808 P.2d 680, 683; Westinghouse Elec. v. Grand River Dam Auth., 1986 OK 20, 720 P.2d 713, 718; Traders Compress Co. v. Board of Review, Okl. Employment Security Commission, 1950 OK 274, 224 P.2d 268. See also Application of Goodwin, 1979 OK 106, 597 P.2d 762, 765 n. 8.

11

. York, supra note 2 at 766-67.

12

. To be appropriate for judicial inquiry, a controversy must be justiciable. Included within the rubric of justiciability is a controversy which (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests, and (c) is real and substantial so as to be capable of a decision granting or denying specific relief. Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 60 (Opala, J., concurring); Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232, 1238; Application of State ex rel. Dept. of Transp., 1982 OK 36, 646 P.2d 605, 609; Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-242, 57 S.Ct. 461, 464-465, 81 L.Ed. 617 (1937); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324-325, 56 S.Ct. 466, 472-473, 80 L.Ed. 688 (1936); Hatfield v. King, 184 U.S. 162, 165-166, 22 S.Ct. 477, 478, 46 L.Ed. 481 (1902). For a discussion of the justiciability doctrine in the federal judicial system, see Wright, Miller & Cooper, 13 Fed. Prac. & Proc. Juris.2d § 3529 (1984).

13

. Keating, supra note 12 at 60 (Opala, J., concurring).

14

. See Broadrick v. Oklahoma, 413 U.S. 601, 610-611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); In re Snyder, 472 U.S. 634, 642-643, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S.Ct 2794, 2801, 86 L.Ed.2d 394 (1985); I.N.S. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

15

. Keating, supra note 12 at 61 (Opala, J., concurring), which states:

"Justiciability" is defined in Ethics Commission v. Cullison, [1993 OK 37] 850 P.2d 1069, 1083 n. 19 (Opala, J., concurring in result) as follows: A justiciable controversy is a real and substantial cause which is appropriate for judicial determination, rather than a dispute or difference of hypothetical, abstract or academic nature.

(emphasis in original).

See also Aetna, supra note 12, 300 U.S. at 239-241, 57 S.Ct. at 463-464; WRIGHT, MILLER & COOPER, 13 Fed.Prac. & Proc. Juris 2d § 3529 at 282-283 n.14 (1984).

16

. Cullison, supra note 15 at 1080 n. 2 (Opala, J., concurring in result)(declaratory relief is available under the rubric of original jurisdiction).

17

. Powell, supra note 4, 395 U.S. at 550, 89 S.Ct. at 1979; Bond v. Floyd, 385 U.S. 116, 135-37, 87 S.Ct. 339, 349-50, 17 L.Ed.2d 235 (1966); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

18

. Powell, supra note 4, 395 U.S. at 550, 89 S.Ct. at 1979 (the U.S. House of Representatives acted unconstitutionally when it effectively expelled Adam Clayton Powell by a majority vote because of charges that he had misappropriated public funds and abused the process of the New York courts); Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50 (the Georgia House of Representatives acted unconstitutionally when it excluded Julian Bond for making statements criticizing the federal government's policy in Vietnam).

19

. Powell, supra note 4, 395 U.S. at 507-12, 89 S.Ct. at 1956-59; Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50.

20

. As I use it here, the phrase "pro tanto exclusion" means exclusion to the extent that a legislator is deprived of full-breadth participation by the absence of an informed deliberative process. The term "pro tanto" means "for so much; to a certain extent." Webster's, supra note 8 at 1822. Black's Law Dictionary defines "pro tanto" as [flor so much", "for as much as may be," or "as far as it goes." Id. at 1222 (6th Ed.1990). See First Bank of Turley v. Fidelity and Deposit Ins. Co. of Maryland, 1996 OK 105, 928 P.2d 298, 308 n. 40, citing Hart Industrial Supply Co. v. Craig, 1965 OK 108, 405 P.2d 93, 97 (Jackson, V.C.J., concurring specially).

21

. Powell, supra note 4, 395 U.S. at 507-12, 89 S.Ct. at 1956-59; Bond, supra note 17, 385 U.S. at 135-37, 87 S.Ct. at 349-50.

22

. Baker, supra note 17, 369 U.S. at 204, 82 S.Ct. at 703.

23

. By "extracameral consequences" I mean that effect of an assembly's work which reaches beyond the four walls of a legislative chamber. For the definition of "cameral" see Webster's, supra note 8. The term "extra" means "outside" or "beyond." Id. at 806.