Opinion No. (1990)

Opinion

THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER REQUESTING COMMENTS FROM THIS OFFICE RELATIVE TO THE FOLLOWING QUESTION:

GIVEN THAT ARTICLE V, SECTION 11(A) OF THE OKLAHOMA CONSTITUTION REQUIRES THE LEGISLATURE TO APPORTION ITSELF "WITHIN NINETY (90) LEGISLATIVE DAYS AFTER THE CONVENING OF THE FIRST REGULAR SESSION OF THE LEGISLATURE FOLLOWING EACH FEDERAL DECENNIAL CENSUS," WHAT POTENTIAL CONSEQUENCES ARISE IF THE FEDERAL GOVERNMENT DOES NOT PROVIDE THE STATE WITH FINAL CENSUS FIGURES UNTIL AS LATE AS JULY 15, 1991?

TO PUT YOUR INQUIRY INTO THE PROPER CONTEXT, IT IS NECESSARY TO CONSIDER THE PROVISIONS OF THE OKLAHOMA CONSTITUTION GOVERNING THE LENGTH OF LEGISLATIVE SESSIONS AS WELL AS 11A ITSELF.

THE DATES DURING WHICH THE LEGISLATURE MUST MEET ARE SET BY THE OKLAHOMA CONSTITUTION. THE LEGISLATURE MUST CONVENE IN REGULAR SESSION ON "THE FIRST MONDAY IN FEBRUARY OF EACH YEAR." ARTICLE V, SECTION 26 OKLA. CONST. THE REGULAR SESSION OF THE LEGISLATURE MUST ADJOURN "NOT LATER THAN FIVE O'CLOCK P.M. ON THE LAST FRIDAY IN MAY OF EACH YEAR." ID.

AND UNDER THE PLAIN LANGUAGE OF ARTICLE V, SECTION 11(A) OF THE OKLAHOMA CONSTITUTION, THE LEGISLATURE IS TO COMPLETE THE TASK OF APPORTIONMENT "WITHIN NINETY (90) LEGISLATIVE DAYS AFTER THE CONVENING OF THE FIRST REGULAR SESSION OF THE LEGISLATURE FOLLOWING EACH FEDERAL DECENNIAL CENSUS." IN PAST YEARS, WHEN THE CENSUS WAS TAKEN AND ITS RESULTS WERE REPORTED IN THE SAME CALENDAR YEAR, 11A HAS RESULTED IN APPORTIONMENTS BEING MADE IN THE YEAR AFTER THE CENSUS WAS TAKEN. HOWEVER, IF THE CENSUS IS TAKEN AND ITS RESULTS ARE REPORTED IN DIFFERENT CALENDAR YEARS, IT IS UNCLEAR WHICH EVENT WILL TRIGGER THE PROVISIONS OF 11A. BECAUSE THE OKLAHOMA COURTS HAVE NOT DEFINITIVELY CONSTRUED 11A TO MEAN EITHER (1) "THE FIRST REGULAR SESSION . . . FOLLOWING (THE REPORTING) OF EACH FEDERAL DECENNIAL CENSUS," OR (2) "THE FIRST REGULAR SESSION FOLLOWING (THE TAKING) OF EACH FEDERAL DECENNIAL CENSUS," THERE IS UNCERTAINTY AS TO WHICH CONSTRUCTION WILL BE USED.

IN VIEW OF THESE PROVISIONS AND IN THE ABSENCE OF FAVORABLE ACTION BY OKLAHOMA COURTS, IT IS CLEAR, HOWEVER, THAT SEVERAL PROBLEMS MAY ARISE IF THE FEDERAL GOVERNMENT WITHHOLDS (OR DELAYS REPORTING) CENSUS DATA UNTIL JULY 15, 1991.

FIRST, WITHHOLDING THE CENSUS DATA MAY PRECLUDE THE LEGISLATURE FROM ACTING TO APPORTION ITSELF. CLEARLY, IF THE LEGISLATURE MUST CONVENE IN FEBRUARY, AND THE CENSUS DATA IS NOT PROVIDED UNTIL JULY, IT IS IMPOSSIBLE FOR THE LEGISLATURE TO COMPLETE, OR INDEED, TO EVEN BEGIN THE TASK OF APPORTIONING DISTRICTS "WITHIN NINETY (90) LEGISLATIVE DAYS AFTER THE CONVENING" AS REQUIRED BY 11A. AND EVEN THOUGH ART. V, 11A SPEAKS IN TERMS OF "LEGISLATIVE DAYS," AN AREA WHERE THE LEGISLATURE HAS TRADITIONALLY HAD GREAT DISCRETION, SEE BELLMON V. BARKER, 760 P.2D 813 (OKLA. 1988); DAVIS V. THOMPSON, 721 P.2D 789 (OKLA. 1986), THE CURRENT TEXT OF ART. V, 26 ACTS TO ESTABLISH THE LAST FRIDAY OF MAY AS THE ABSOLUTE CUTOFF DATE OF THE SESSION. THUS, THE LEGISLATIVE BODY ASSIGNED TO APPORTION THE DISTRICTS WOULD HAVE ADJOURNED LONG BEFORE THE CENSUS DATA NECESSARY TO THIS TASK BECAME AVAILABLE.

A SPECIAL SESSION MAY NOT BE AVAILABLE AS A POTENTIAL REMEDY BECAUSE 11A SPECIFICALLY TARGETS THE "FIRST REGULAR SESSION" OF THE LEGISLATURE AS THE BODY RESPONSIBLE FOR APPORTIONMENT.

WE NOTE THAT IF THE LEGISLATURE FAILS TO MAKE THE REQUIRED APPORTIONMENT, THE TASK PASSES TO AN APPORTIONMENT COMMISSION, CONSISTING OF THE ATTORNEY GENERAL, THE SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE STATE TREASURER. ARTICLE V, SECTION 11 OKLA. CONST. NEVERTHELESS, EVEN IF THE APPORTIONMENT COMMISSION DOES PERFORM THE APPORTIONMENT, THE EFFECT WOULD STILL BE THAT THE RIGHT OF THE OKLAHOMA LEGISLATURE TO ACT AS THE PRIMARY APPORTIONING BODY MAY HAVE BEEN EXCISED FROM THE OKLAHOMA CONSTITUTION BY FEDERAL OMISSION OR DELAY.

BY ADOPTING ARTICLE V, SECTION 11(A), THE CITIZENS OF OKLAHOMA HAVE CHOSEN TO PLACE THE POWER TO APPORTION IN THE FIRST INSTANCE IN THE HANDS OF THEIR STATE LEGISLATURE. AS ILLUSTRATED ABOVE, WITHHOLDING THE CENSUS DATA MAY OPERATE TO PRECLUDE THE LEGISLATURE FROM EXERCISING THIS POWER.

(NED BASTOW)