Keating v. Johnson

1996 OK 61, 918 P.2d 51, 67 O.B.A.J. 1680, 1996 Okla. LEXIS 73, 1996 WL 250630

• Court: Supreme Court of Oklahoma
• Decided: May 14, 1996
• Docket: 86628
• Status: Published

Opinions

LAVENDER, Justice:

Petitioners, the Governor of the State of Oklahoma and two State House of Representative members have filed an application with this Court to assume original jurisdiction requesting declaratory or other relief determining that the Oklahoma Legislature violates the separation of powers doctrine contained in the Oklahoma Constitution [OKLA.CONST. art. 4, § 1] when it, by statutory enactment, vests in itself or legislative leadership the authority to make appointments to executive branch boards and commissions whose function is the execution and administration of the law.¹ Unconstitutionality is also claimed when the Legislature, by statute, delegates to any of its own members either the power to exercise executive functions or the power to exercise legislative, policy-making powers on behalf of the Legislature as a whole. Sued as respondents are the Speaker of the Oklahoma House of Representatives; the President Pro Tempore of the Oklahoma Senate; three other State Representatives and three other Senators who are members of the Legislative Bond Oversight Commission (LBOC); the Acting Commissioner of the State Insurance Fund; four members of the Board of Managers of the State Insurance Fund (BMSIF) (two appointed by the Speaker and two by the President Pro Tempore); the Executive Director of the Oklahoma Firefighters Pension and Retirement System; and two members of the Oklahoma Firefighters Pension and Retirement Board (OFPRB), one appointed by the Speaker and one by the President Pro Tempore. We decline to assume original jurisdiction for the reasons set forth below.

Petitioners attack as unconstitutional four statutes or statutory schemes in this proceeding. They claim 85 O.S.1991, § 181a is unconstitutional to the extent it provides for appointment of members to the BMSIF by the Speaker and President Pro Tempore. 11 O.S.Supp.1995, § 49-100.3 is claimed unconstitutional insofar as it provides for appointment of members to the OFPRB by the Speaker and President Pro Tempore. Next, the Oklahoma Bond Oversight and Reform Act, 62 O.S.1991, § 695.1 et seq., as amended, is claimed unconstitutional to the extent it provides for the LBOC, currently made up of six legislators as members, to engage in the performance of executive functions, rather than legislative.² Aternatively, petitioners claim that if any of the LBOC’s powers are determined to be legislative in nature, rather than executive, the LBOC would still be unconstitutional — the invalidity consisting of an improper delegation of legislative power of the whole Legislature to that six person commission. Finally, 62 O.S.1991, § 695.11A, is claimed violative of the separation of powers doctrine in providing for appointment of members to the Council of Bond Oversight (CBO) (a Council that would come into being in the event either the LBOC or its counterpart, the Executive Bond Oversight Commission, are found unconstitutional) by the Speaker and President Pro Tempore, when the CBO wields executive power. It should be noted that petitioners cite to Attorney General Opinion No. 90-31, which generally is favorable to the position of petitioners espoused herein, but the Legislature has apparently ignored this opinion of the Attorney General.

In addition to a declaration of constitutional invalidity, petitioners request a further declaration, if allowed by applicable constitutional principles and prior decisions of this Court, that by reason of the defacto status of the various officers who are claimed to have been unconstitutionally appointed, all prior actions taken by the officers or their respective board, council or commission are valid and binding against constitutional infirmities alleged in this proceeding, notwithstanding such infirmities. Finally, petitioners request, again if allowed by applicable constitutional principles and prior decisions of this Court, that we make any decision of unconstitutionality effective at a future date certain or, withhold issuance of any writ or appropriate order until a date certain to give the Legislature and Governor sufficient time to cure the claimed unconstitutional defects in the challenged legislation.

The Governor claims standing to bring this matter on the basis he is the Chief Magistrate and chief executive officer of OHahoma [OKLA.CONST. art. 6, §§ 1 and 2], and, as such, he has a judicially cognizable interest in protecting the prerogatives and functions of the Executive Department of State government and insuring that another Department of State government does not unlawfully assume or exercise powers properly committed to another Department.³ Further, although the Governor does not presently claim he is imbued with any inherent authority to make the appointments to the boards, etc. at issue in this proceeding either under the OHahoma Constitution or otherwise, he claims that his role in the appointment process under OKLA.CONST. art. 6, § 13 also provides a basis for his standing here.⁴ As to this latter position, the Governor appeared to claim at oral argument in this matter that because art. 6, § 13 gives him certain appointment authority when an office becomes vacant, upon a determination that the statutes granting the legislative appointments at issue here are held to be unconstitutional and legislative failure to pass curative legislation passing constitutional muster, he might himself become imbued with the appointment authority. However, as noted, the Governor does not currently claim any appointment authority and he appears to admit that constitutionally adequate curative legislation might be passed consistent with art. 6, § 13 that would place the appointment power in others.

The two House member petitioners claim standing based on a judicially cognizable interest in the proper allocation of powers between the Executive and Legislative Departments and, alternatively, a dilution or impairment of their legislative vote as House members by the claimed improper delegation of legislative authority to the LBOC. We assume, without deciding, that both the Governor and the two legislators have standing to bring this proceeding.

Petitioners, to support their position that we exercise our discretion to grant original jurisdiction, rely on the doctrine of publici juris in that this matter is imbued with great public importance involving a question of statewide concern relating to the respective powers of the Executive and Legislative Branches of government. The claim is that this public law controversy raises issues going to the fundamental structure of government in Oklahoma. Although the former basis is primarily relied upon, it is also claimed we should assume original jurisdiction based upon our superintending control over agencies, commissions and boards granted to this Court in OKLA.CONST. art 7, § 4. Petitioners also appear to argue that because the matter will eventually end up in this Court in an appeal from a district court determination in any event, and we at that time will have to review the legal questions under a de novo standard of review, original jurisdiction should be assumed now, and that declining to do so will accomplish nothing, other than causing a delay of a final decision and expense to the parties.

Other than as to how these bases might intrinsically intertwine with the issue, petitioners make no real attempt to convince us there is some urgent situation involved in this matter that would call for this Court’s immediate attention or that would require a speedy determination of the case. In fact, the present posture of the case as delivered to us by petitioners, particularly in light of their own request that we make any decision prospective to a future date to afford the Governor and Legislature time to enact curative legislation should we decide one or more of the challenged provisions are unconstitutional and the tacit admission that past actions of the officials whose appointments are challenged are valid by virtue of their claimed de facto status, appears to counsel against a determination there is any need for our immediate attention. In our view, although the question(s) presented are important, petitioners have failed to show there is some immediacy involved in this controversy that would call for this Court to exercise its discretion to hear the matter at the present time.

We first note that although petitioners point out reasons why bypass of a State district court is in order, they have presented no argument or authority, and we are aware of none, that would give us exclusive jurisdiction of this matter. Thus, we begin our analysis on the assumption our jurisdiction in this case is concurrent with that of a district court.⁵

Early m our State’s history it was recognized that this Court was by the framers of the OHahoma Constitution intended primarily as an appellate court. Jarman v. Mason, 102 Okla. 278, 229 P. 459, 464 (1924). The following was further stated in Kitchens v. McGowen, 508 P.2d 218 Syllabus by the Court (Okla.1972):

The original jurisdiction of the Supreme Court, when concurrent with that of the district court, is intended primarily as a “stand by” service which it will exercise only when, from the exigencies of the case, great injury will be done by its refusal so to do. A different rule would so flood this court with original actions as to destroy its efficiency as an appellate court.

We also recognized in Jarman v. Mason, supra, that all litigants would like to step into this Court of last resort, thereby avoiding the expense and delay incident to appeal, but that such reasons for bypass of the ordinary process of first proceeding in a lower court, would not normally be considered a reason for us to exercise our discretion to grant original jurisdiction. 229 P. at 464.⁶ A fairly consistent theme running through most of our cases where original jurisdiction has been assumed has been that the matter must be affected with the public interest and there must be some urgency or pressing need for an early determination of the matter. See e.g. Post Oak Oil Co. v. Oklahoma Tax Commission, 575 P.2d 964, 967 (Okla.1978); Halstead v. McHendry, 566 P.2d 134, 136 (Okla.1977); See also Phillips v. Oklahoma Tax Commission, 577 P.2d 1278, 1281 (Okla.1978), where original jurisdiction was granted for the purpose of ascertaining the constitutionality of a recent increase in OHahoma’s use tax and it was urged judicial resolution was essential to the orderly fiscal management and budgeting of both State and local governmental entities. All of the above cases indicated there was some immediacy involved so that a real need existed for speedy determination of the controversy. As noted above, the petitioners here have not really attempted to show any urgency or immediacy calling for an early decision by this Court in the present case.

Although we have assumed jurisdiction of original actions to rule on the constitutionality of legislative acts, our basis for doing so was a general public need for a speedy determination of the constitutional question. For example, in State ex rel. Babb v. Mathews, 134 Okla. 288, 273 P. 352 First Syllabus (1928), we assumed original jurisdiction in a case seeking a writ of prohibition to stop a newly created Court of Tax Review from exercising its authority. Id., 273 P. at 352-353. We noted that the issue(s) involved went to the question of whether the primary purposes of the act (to provide a remedy for illegal tax levies and creation of a tribunal with power to grant prompt relief) were so clearly violative of constitutional provisions that the act involved in actuality gave no power to, nor conferred any jurisdiction on, the court of tax review to function at all under the act’s provisions. Id., 273 P. at 356. Although we denied the writ, had we granted it the Court of Tax Review would have been prohibited from entering upon its duties as spelled out in an initiative petition recently passed by the voters, i.e. an organ of government having as its central purpose the pro-teetion of taxpayers and citizens from illegal tax levies, would have been unable to function. Clearly, in Mathews a matter of such general importance was presented that the need for speedy resolution was evident.⁷

More recently, in Ethics Commission v. Cullison, 850 P.2d 1069 (Okla.1993), we assumed original jurisdiction, finding the matter involved an intolerable conflict between the OHahoma Legislature and the constitutionally created Ethics Commission. In the case it was claimed that implementation of certain legislative enactments in the area of ethical conduct of governmental officials would effectively destroy the Commission, an entity that had only recently been charged by constitutional mandate with authority in this area. Id. at 1073. The dispute involved in Ethics Commission was one involving a conflict between co-ordinate branches of government amounting to governmental gridlock. Id. at 1073. Petitioners here claim no such intolerable conflict amounting to governmental gridlock that requires early resolution by this Court. As noted in Ethics Commission, only in rare circumstances should this Court assume original jurisdiction to grant a form of declaratory relief. Id. at 1072. We do not believe this is one of those rare cases.

A review of some other cases where this Court assumed jurisdiction evidences similar immediacy, urgency or need for a speedy resolution to decide a public law controversy that does not appear to be evident here. In Wiseman v. Boren, 545 P.2d 753 (Okla.1976), a writ of prohibition was sought to stop a former Governor and other officials from paying out of the State treasury over eighty million dollars ($80,000,000.00) in State funds to retire State general obligation bonds without prior legislative appropriation. Id. at 755. The immediacy of the situation seemed obvious in that the former Governor had actually announced the funds were going to be so used and the monies had actually been transferred to a sinMng fund for payment of the bonds. Id. at 755-756. In that the Legislature claimed entitlement to regularly appropriate the monies an urgent intolerable conflict existed calling for this Court’s immediate attention. Another ease where we assumed original jurisdiction involved the potential for impairment to the enforcement of the criminal laws of the State in certain counties because of a funding dispute over the payment of assistant district attorneys. State ex rel. Blankenship v. Atoka County, 456 P.2d 537, 538-539 (Okla.1969). Contrary to the situations in Wiseman and Blankenship, no urgency is involved here and, in fact, as noted, petitioners do not appear to claim any urgency calling for a speedy resolution.

In other recent cases, although the immediacy or urgency of the situation may not be directly discussed, when one thoroughly reviews them, the need for speedy resolution of the controversy is apparent. In Hendrick v. Walters, 865 P.2d 1232 (Okla.1993), a controversy was presented where a State Senator claimed that the then Governor had actually forfeited his office by failure to take a statutory oath. Id. at 1234-1235. We made it quite clear that the legitimacy of a myriad of legislative actions (e.g. confirming or refusing to confirm the Governor’s appointees and overriding vetoes) were potentially cast into doubt by the claim that the Office of the Governor was vacant. Id. at 1238. Petitioners do not claim in this case that any of the offices involved in this case are actually vacant by reason of improper legislative appointment. As noted, petitioners tacitly admit that the legislative appointees are properly serving in, at least, a de facto status and apparently that they should remain so until some unspecified time in the future.

Further, petitioners’ failure to claim any vacancy exists in the offices involved, coupled with their failure to claim the Governor presently has any inherent appointment authority to the offices by virtue of constitutional provision or otherwise, makes this case distinguishable from others in the nature of quo warranto where parties to a State office are locked in a battle over who is the proper incumbent of the office. See e.g. McKye v. State Election Board of State of Oklahoma, 890 P.2d 954 (Okla.1995) (State House of Representative seat involved); Nesbitt v. Apple, 891 P.2d 1235 (Okla.1995) (seat on Oklahoma Corporation Commission involved).⁸

The current situation is also distinguishable from other recent eases. In Johnson v. Walters, 819 P.2d 694 (Okla.1991), a writ of prohibition was requested by certain legislative leaders against various boards, agencies, commissions and officers to prevent implementation of all the general legislation provisions of two legislatively passed bills. Id. at 696. In Campbell v. White, 856 P.2d 255 (Okla.1993), four legislators sought a writ of prohibition against the Director of State Finance and the State Treasurer to prevent disbursement of funds. Id. at 275 (Summers, J., concurring in part and dissenting in part). The case involved the constitutionality of the fiscal year 1993 appropriation bills for numerous State governmental agencies. Id. at 256-257. In Johnson and Campbell the potential for disruptive effect on the continued workings of governmental entities and/or the ongoing fiscal affairs of State government were involved, something not claimed by petitioners to be involved in the instant matter — at least not in any direct or immediate way as far as we can determine.

Immediacy was also indicated in cases such as State ex rel. York v. Turpen, 681 P.2d 763 (Okla.1984), where at the time of that decision opinions of the Attorney General declaring a statute unconstitutional were considered binding upon State officials [Id. at 765] and the question involved whether the Legislature was required to conform its actions to an Attorney General opinion. Id. at 768 (Opala, J., concurring). The ease also involved what was described as a “monumental sum of tax revenue and the actuarial stability of the Police & Firefighters’ Retirement & Pension System[s].” Id. at 765. In essence, the question answered in Turpén was whether the Legislature could alter by statute the disability or retirement pensions of police officers and firefighters eligible to receive a pension prior to a certain date, without a showing of necessity to protect the actuarial soundness of the pension systems, in light of an Attorney General opinion deemed binding at the time that had essentially opined it could not. In that we finally held in Turpen that Attorney General opinions stating a statute is unconstitutional would no longer be considered binding — but instead advisory only [Id. at 767] — the fact an Attorney General opinion concerning the subject of the instant matter exists currently provides no basis upon which original jurisdiction need be assumed in this case, as it might have at the time Turpen was decided, for the obvious reason no claim is made here that any of the parties must conform their actions to it.

In the final analysis, petitioners in the present case rely on only part of the equation in requesting this Court to assume original jurisdiction in the present case. Their claim is based solely on the public nature of the question — certainly an important one — but they fail to make any showing there is any urgency or immediacy involved that would require a speedy determination of the controversy. In that this Court must keep in mind that its primary function is appellate in nature, in the absence of such a showing we are convinced there is no necessity for the assumption of original jurisdiction in this case.

Accordingly, the application to assume original jurisdiction is denied.

ALMA WILSON, C.J., and LAVENDER, HARGRAVE and OP ALA, JJ., concur. SIMMS, J., concurs specially. KAUGER, V.C.J., and HODGES, SUMMERS and WATT, JJ., dissent.

1 . OKLA. CONST. art. 4, § 1 provides:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

2 . The Speaker and the President Pro Tempore each appoint three members to the Legislative Bond Oversight Commission (LBOC). 62 O.S.Supp.1995, § 695.4(A)(1) and (2). The Speaker and President Pro Tempore are also given appointment authority for one alternate member each, who is to serve when a regular member is not available. § 695.4(B). In view of such legislative leadership appointment authority, we note that petitioners also appear to challenge such appointment authority based on the same view espoused as to the other alleged executive entities involved here, i.e. the LBOC exercises executive authority and legislative leadership appointment to it violates the separation of powers doctrine.

3 . OKLA. CONST. art. 6, § 1 provides:

A. The Executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer, Superintendent of Public Instruction, Commissioner of Labor, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law.

B. The Secretary of State shall be appointed by the Governor by and with the consent of the Senate for a term of four (4) years to run concurrently with the term of the Governor. OKLA. CONST. art. 6, § 2 provides:

The Supreme Executive power shall be vested in a Chief Magistrate, who shall be styled “The Governor of the State of Oklahoma.”

4 . OKLA. CONST. art. 6, § 13 provides:

The Governor shall commission all officers not otherwise commissioned by law. All commissions shall run in the name and by the authority of the "State of Oklahoma,” be signed by the Governor, sealed with the Great Seal of the State of Oklahoma, and attested by the Secretary of State. When any office shall become vacant, he shall, unless otherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed, and qualified according to law.

5 . This fact of concurrent jurisdiction with that of a district court makes inapplicable here the case of Southwestern Bell Telephone Co. v. Oklahoma Corporation Commission, 873 P.2d 1001 (Okla.1994), cert. denied - U.S. -, 115 S.Ct. 191, 130 L.Ed.2d 123 (1994), cited by one of the dissenting opinions. By virtue of OKLA. CONST. art. 9, § 20, this Court had exclusive jurisdiction in that case to issue any writ which would have had the effect of disqualifying one of the Corporation Commissioners. Section 20 makes explicit that no other court, except this Court, has the authority or power to interfere with the Corporation Commission in the performance of its official duties, e.g. regulation of the rates of Southwestern Bell. State ex rel. Oklahoma Natural Gas Co. v. Hughes, 204 Okla. 134, 227 P.2d 666 (1950); See also State ex rel. Cartwright v. Southwestern Bell Telephone Co., 662 P.2d 675 (Okla.1983) (Even though OKLA. CONST. art. 9, § 20 limits judicial review of orders of Corporation Commission affecting the rates, etc. of public utilities or public service corporations to this Court, these matters may be assigned by the Supreme Court to the Court of Appeals). Also inapplicable to and unlike the present situation is Hooper v. The Honorable Lois L. Belden, No. 79,998 (Okla. Sept. 28, 1992), another case cited in the same dissenting opinion, where the petitioner had already presented his in forma pauperis request to proceed in small claims court to the Special Judge in Payne County that handled small claims matters, who had orally denied that request. Contrary to the situation in Hooper, petitioners here have not previously submitted any part of this matter to a lower court and been denied relief.

6 . Another dissenting opinion in this case appears to be of the view that we err in not granting original jurisdiction in that we leave the parties, "to run the gauntlet of meaningless litigation” in district court because in any appeal brought in this Court raising the same legal issues, a de novo standard of review will be applied. The fact is numerous appeals involve a de novo standard of review — e.g. motions to dismiss for failure to state a claim upon which relief can be granted and most, if not all, situations where the appellate issues concern review of pure legal determinations of a district court. Thus, if such reasoning was followed, scores of litigants in other situations could make an argument they should be allowed to bypass the orderly process of proceeding first in district court and then on appeal to this Court from any adverse decision. However, as we recognized in Jarman v. Mason, 102 Okla. 278, 229 P. 459, 464 (1924), this Court is primarily an appellate court and arguments based on simple delay or expense will not normally be considered a viable rationale for us to exercise our discretion to assume original jurisdiction of a matter.

7 . The need for early resolution was also discussed in Williams Natural Gas Co. v. State Board of Equalization, 891 P.2d 1219 (Okla. 1994), cert. denied - U.S. -, 116 S.Ct. 70, 133 L.Ed.2d 31 (1995), when we assumed original jurisdiction to decide whether ad valorem tax assessment of public service corporation property generally at a ratio higher than that used to assess railroad and airline property was unlawfully discriminatory. Id. at 1220-1221. The real potential for the unavailability of a sizeable percentage (6.8%) of ad valorem tax funds for schools, county government and/or other governmental entities was recognized and a possible revenue shortfall of over sixty million dollars ($60,000,000.00) was at issue. Although as one dissenting opinion points out, judicial economy was also noted to support our decision to grant original jurisdiction in the case because there were pending in the Court of Tax Review seventy (70) to ninety (90) other similar challenges, judicial economy was noted in addition to the public importance of the issue(s), as was the evident and expressed immediacy involved, and there is no indication we would have assumed original jurisdiction based solely on the fact similar cases were pending in a lower tribunal.

8 . See also State ex rel. Stuart v. Rapp, 632 P.2d 388 (Okla.1981) (original jurisdiction assumed in action brought by district attorney to oust a district judge); State ex rel. Oklahoma Tax Commission v. Mourer, 596 P.2d 882 (Okla.1979) (original jurisdiction assumed in quo warranto matter to settle title to office on County Board of Equalization — dispute between appointee of Oklahoma Tax Commission and County Commissioner appointee).