In Re the Oklahoma Capitol Improvement Authority

1998 OK 25, 964 P.2d 873

Opinions

ORDER

The opinion in the above styled and numbered cause was promulgated on March 20, 1998. A petition for rehearing was filed on April 8, 1998, and the petition was denied on April 30, 1998. On May 1, 1998, the respondents, Jerry R. Fent and Margaret R. Fent, filed a notice of intent to appeal to the United States Supreme Court and a motion to stay mandate.

The Court finds that:

1) The respondents original claim of unconstitutionality of the bonds rested solely upon the Oklahoma Constitution, art. 10, §§ 23, 24 and 25 [Brief of respondents, filed November 14, 1997], Federal constitutional claims were not raised until the filing of the petition for rehearing on April 8, 1998. Non-juris-dietional issues, raised for the first time on rehearing, are generally unfit for review. [City of Oklahoma City v. State ex rel. Oklahoma Dept. of Labor, 1995 OK 107, 918 P.2d 26, 32.]

2) The opinion promulgated in the above styled and numbered cause is based entirely and explicitly upon the Oklahoma Constitution, Oklahoma statutes, and Oklahoma case law. The adequacy and independence of state law as a basis of the opinion is clear. [Michigan v. Long, 463 U.S. 1032, 1039, 103 S.Ct. 3469, 3475, 77 L.Ed.2d 1201 (1983).]

3) The gravamen of the opinion being based on bona fide separate, adequate, and independent state grounds, the United States Supreme Court should have no basis for review. [Michigan v. Long, supra.]

4) The instant cause is an original proceeding. Decisions in original proceedings are effective when the opinion is filed with the Clerk of the Appellate Courts. [Rule 1.193, Oklahoma Supreme Court Rules, 12 O.S.1991, App. 1.] No mandate is issued on the conclusion of an original action. [Rule 1.16, Oklahoma Supreme Court Rules, 12 O.S.1991, App. 1.] Rehearing Having been previously denied, no second petition for rehearing may be filed. [Rule 1.13, Oklahoma Supreme Court Rules, 12 O.S. 199, App. 1.] The cause, filed as a motion to stay mandate, is treated as a motion to stay the effectiveness of the Court’s decision.

5) Rehearing having been denied, the Court’s opinion is a judicial determination of the validity of the bonds and is conclusive as to the Capitol Improvement Authority, the State of Oklahoma, its officers, agents and instrumentalities, and all other persons. [Title 73 O.S.1991 § 160.]

6) Court rules do not provide for the stay of mandate in original proceedings. There being no basis for review in the United States Supreme Court, a stay of the effectiveness of the Court’s decision would merely cause undue delay.

7) Adequate relief may be obtained through the application for a stay in the United States Supreme Court. [28 U.S.C.1994 § 2101(f).]

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the motion to stay the effectiveness of the Court’s decision in the above styled and numbered cause is denied.

KAUGER, C.J., SUMMERS, V.C.J., and HODGES, SIMMS and HARGRAVE, JJ., concur. LAVENDER, OPALA, WILSON and WATT, JJ., dissent.