Walters v. Oklahoma Ethics Commission

1987 OK 103, 746 P.2d 172, 1987 Okla. LEXIS 263, 1987 WL 4099

• Court: Supreme Court of Oklahoma
• Decided: October 27, 1987
• Docket: 67685
• Status: Published

Opinions

HODGES, Justice.

This appeal involves the construction of the provisions of the new Oklahoma Ethics Commission Act, 74 O.S.Supp.1986 §§ 4200-4248.1 (Act). The factual history involved here began with a complaint filed by the General Counsel for the Republican Party, Craig Dodd (Dodd), against David Walters (Walters or appellee), Democratic gubernatorial candidate in the 1986 election, with the Oklahoma Ethics Commission (Commission or appellant) on September 12, 1986, pursuant to the Act. Dodd alleged certain private loans from four individuals in the amount of $162,500 obtained by Walters by giving mortgages on his house were illegal under the Act. Section 4216 of the Act limits a person’s or family’s contribution to a candidate for state office to $5,000. Section 4202(6) defines “contribution” as “any money, property ... or any other thing of value whatsoever which is given or loaned to be used in a campaign— ” (emphasis added). Each of the individuals who had loaned money to Walters had already donated the maximum amount.

On September 25, 1986, upon initial review of the complaint the review committee of the Commission referred the complaint to the full Commission for investigation. After the conclusion of the investigative hearing conducted by the Commission on October 6, 1986, the Commission voted to refer the complaint to the District Attorney of Oklahoma County for action. The complaint filed by Dodd against Walters was the first complaint heard by the Commission under the new Act.

On the morning of October 10, 1986, Walters filed a petition for extraordinary relief in the District Court of Oklahoma County. Walter’s petition sought declaratory relief as to the constitutionality of the procedural aspects of the Act and the loan prohibition as applied to him. The district court entered a temporary order that day staying any further action upon the complaint and setting the cause for hearing on October 13th. The Commission was further ordered to appear and show cause why the referral and the complaint should not be dismissed.

Prior to the hearing, the Commission filed an application to assume original jurisdiction and a petition for writ of prohibition in the Supreme Court of Oklahoma. This Court assumed original jurisdiction and entered a writ of prohibition for the limited purpose of prohibiting any proceeding in the cause the object of which is to review the action of the Commission in making a referral of the matter under its investigatory power to a prosecutor.¹

Trial on the merits was commenced the evening of October 13th. The trial court announced its ruling on October 14th. The trial court found the Oklahoma Administrative Procedures Act (APA) applies to the complaint procedures of the Commission. It ruled Walters had been denied his constitutional rights to procedural due process. It further found § 4207(H) unconstitutionally vague in that it fails to prescribe a burden and standard of proof. Section 4207(H) reads:

“In making a determination to dismiss a complaint or to proceed with an investigation or to make a referral to the appropriate authority, the Commission may exercise such discretion as it deems necessary to provide fairness to the accused and to maintain confidence in the public officials and employees who are subject to the provisions of the Oklahoma Ethics Commission Act.”

The district court also stated three additional reasons to support its finding the above quoted section of the Act is unconstitutional and Walters was denied due process: 1) there is no provision in the Act nor did the Commission provide a certified shorthand reporter; 2) no findings of fact and conclusions of law were made; and 3) complainant Dodd was allowed to become the prosecutor and legal advisor to the Commission. Lastly, the trial court found the loans to Walters were legal and the interpretation placed on the loans by the Commission is an unconstitutional interpretation in violation of the First Amendment to the United States Constitution. It therefore set aside as null and void the action by the Commission against Walters and enjoined it from any further proceedings against him concerning the loans.

The Commission challenges on appeal the district court’s rulings that 1) Section 4207(H) is unconstitutional for vagueness and failure to provide standards, 2) certain procedures followed by the Commission denied Walters procedural due process, and 3) the private loans to Walters to provide funds for his political campaign did not violate the contribution limits in the Act.

I.

The Commission asserts § 4207(H) of the Act is not unconstitutionally vague. The Commission’s principal argument is it has only limited investigatory power and does not render any final decision as the ultimate decision to dismiss or prosecute resides with the authority to whom the complaint is referred. An analogy is made to the proceedings before the Council on Judicial Complaints under 20 O.S.1981 § 1652, which has been described as only investigatory in nature, as opposed to being adjudicatory in nature. Nichols v. Council on Judicial Complaints, 615 P.2d 280 (Okla. 1980); In re “Judge Anonymous”, 590 P.2d 1181 (Okla.1978). It asserts the trial court erroneously imposed adjudicatory standards of due process on the Commission’s exercise of investigatory power.

Walters, on the other hand, asserts the Commission conducts proceedings which are judicial in nature and it has been granted unfettered quasi-judicial power which should be struck down, citing CitiCorp Savings & Trust v. Banking Board of the State of Oklahoma, 704 P.2d 490, 494 (Okla.1985). He asserts the Commission proceedings are akin to grand jury proceedings and the Commission should be similarly subject to statutory guidelines concerning its powers and duties. The Commission, it is argued, in its decision to refer affected his fundamental right to seek office by politically stigmatizing him. Thus such proceedings should be subject to the traditional adjudicatory procedural safeguards and standards.

We recognize that administrative investigations have been compared to the power granted in grand juries by the courts.² However, one significant distinction exists between the Commission and a grand jury. A grand jury not only functions as an inquisitorial body, it is accorded constitutional power to return indictments for all character and grades of crimes. Okla. Const. art. II, § 18; 22 O.S.1981 §§ 331, 333. A criminal prosecution cannot be instituted except by presentment or indictment by a grand jury, or by information filed by the prosecuting attorney. Okla. Const, art. II, § 17. A grand jury’s return of a true bill (indictment) is similar to a decision to prosecute. Tweedy v. Oklahoma Bar Ass’n, 624 P.2d 1049, 1054 n. 12 (Okla.1981). The Commission, on the other hand, only has power to refer a complaint concerning the alleged violation to the appropriate authority who then decides whether or not to prosecute an action, based upon the particular facts revealed from the results of the administrative investigation.³

Because the Commission possesses only functions of investigation and referral it is merely an investigatory body. Nelson v. Oklahoma State Ethics Commission, 551 P.2d 1117 (Okla.1976). Nonadjudica-tive, fact-finding investigations into possible violations of the Act conducted by the Commission do not constitute an adjudication of legal rights. Therefore, the full panoply of judicial procedures which have traditionally been associated with adjudicatory proceedings under the due process clause is not constitutionally required. S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 2725, 81 L.Ed.2d 615 (1984); Hannah v. Larche, 363 U.S. 420, 440-443, 80 S.Ct. 1502, 1513-1515, 4 L.Ed.2d 1307 (1960); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 598, 70 S.Ct. 870, 872, 94 L.Ed.2d 1088 (1950). The full requirements of due process do not attach until the adjudicatory stage is begun if and when criminal proceedings are initiated.

Inasmuch as the Commission’s proceedings are purely investigatory in nature, and as such, the Commission is not authorized to adjudicate rights, the Commission does not fall within the definition of agency under 75 O.S.1981 § 301(1) of the APA. We therefore find the Commission is not subject to the procedures mandated by the APA, except for the provisions relative to the promulgation and filing of its rules and regulations.

We do not believe the Commission's grant of discretion is unconstitutionally vague. In ascertaining the constitutionality of a statute, a legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution.⁴ The Commission is vested by statute with wide discretion; but such discretion is not unconditional. In its exercise of discretion it must act fairly and justly in such a manner which will instill confidence in the proceedings. 74 O.S.Supp.1986 § 4207(H). Furthermore, the Commission, as a governmental body, must remain within the bounds of the Constitution.⁵ The broad authority conferred on the Commission is not the equivalent of unbridled freedom to investigate any person merely upon supposition as administrative action must have a reasonable or rational basis and must not be used in an arbitrary and discriminatory manner.⁶ We hence hold § 4207(H) is not an unconstitutionally vague grant of power without proper standards or guidelines.

Although the Commission is not bound by the full panoply of adjudicatory procedures, the elementary and fundamental principles of fair play dictate that minimum procedural due process safeguards should be observed in the investigative proceedings to avoid unfairness, and even the appearance of unfairness or impropriety, based upon political influence or other improper motives. Whether the due process clause requires that a particular right should obtain in a specific proceeding depends upon a complexity of factors including a consideration of the importance of the interest involved, the nature of the proceeding and the possible burden on that proceeding.⁷ The pivotal question remains as to what process is due.

After weighing the applicable factors, we conclude that the district court erroneously found the Commission should make findings of fact and conclusions of law, should establish a burden and standard of proof and the proceedings should be stenographically reported. Our conclusion is based upon “the purely investigative nature of the Commission’s proceedings, the burden that the claimed procedures would place upon those proceedings, and the traditional procedure of investigating agencies in general.”⁸ Although we find a record of the proceedings is not a requirement of due process, nonetheless we find that a record is necessary for a meaningful review by the district attorney or other appropriate authority under the Act for his/her determination as to whether or not to prosecute. We are mindful however that a record would be subject to the confidentiality requirements under § 4207(F) and would not be open for public inspection.

II.

Having found the Act constitutional we now turn to the question whether Walters was denied procedural due process. Walters points to the asserted flaws in the proceedings against him contending he was denied due process. Because of the absence of statutory guidance and administrative rules, he asserts he was subject to administrative whim. In this regard Walters’ specific objections are: (1) no burden and standard of proof; (2) Dodd, the complainant, served as the Commission’s prosecutor and legal advisor which, in effect, forced Walters to carry the burden of proving his innocence; and (3) neither findings of fact nor conclusions of law were made.

Walters also complains of the Commission’s failure to provide a certified shorthand reporter. He asserts that although the Commission secretary took shorthand notes to record the proceedings, the record remains incomplete despite her good faith attempt.

The Commission contends the district court erred in finding Walters was denied procedural due process because the procedures adopted by the Commission provided for an orderly proceeding consistent with the nature of the investigation, and provided Walters with adequate notice and opportunity to be heard. Again the Commission focuses on the investigatory proceeding as nonadjudicative in character. It asserts the procedures were adequate to provide due process and Walters has not shown he was actually prejudiced from the procedures.

We are persuaded by the Commission’s arguments. Walters appeared at the hearing personally and with his attorney, and was given the opportunity to put on testimony and evidence, cross-examine witnesses and present arguments. There was no disagreement as to the facts in connection with the loans. We therefore find Dodd’s participation in the hearing did not prejudice Walters. Walters fails to demonstrate the record of the proceeding was legally insufficient to reflect absence of necessary ingredients upon which to base an opinion.⁹ Actual prejudice is a necessary element of a due process claim which makes the claim ripe for adjudication.¹⁰ The Commission’s failure to provide a court reporter, without more, does not constitute a due process violation. Walters’ stipulation to the facts precludes any prejudice from the Commission’s failure to make findings of facts, and the same is true of its failure to operate under a standard or burden of proof. There simply were no facts in dispute. Because Walters does not sufficiently establish actual prejudice resulting from the procedures employed, we find Walters was not denied procedural due process.

III.

The Commission asserts the district court exceeded the review authorized in this Court’s writ of prohibition in its ruling on the legality of the particular loans in question. Walters counters the loan issue was placed in issue by his petition for declaratory injunctive relief and the ruling constituted a declaration of his rights under the Act. He asserts 12 O.S.1981 § 1651 under the Oklahoma Declaratory Judgments Act permits the district court to construe the loan statute concerning his rights with respect to the Act. While this latter proposition is a correct statement of the law the trial court’s review did not comport with this prescription.

We agree with the position urged by the Commission. It contends, and correctly so, the legality of the loans was not an issue properly tendered under a declaratory judgment action. The trial court exceeded its authority in that it only ruled on the loans made to Walters and its ruling was limited to the specific facts of this case. The trial court did not construe the loan prohibition provision or the contribution limitations contained in the Act; rather, it improperly reviewed the action of the Commission to refer. Title 12 O.S.1981 § 1657 provides the Declaratory Judgments Act is inapplicable to “orders, judgments or decrees” of any commission of the State. We recently stated in Tulsa Tribune Co. v. Okla. Horse Racing Com’n, 735 P.2d 548, 553 (Okla.1986), it would appear that this provision would also prevent a district court from acting to usurp the authority and responsibility of such commissions to act in the first instance. It would likewise appear § 1657 prohibits review of any action to refer taken by the Commission.

Additionally, the trial court’s review of the Commission’s action was improper under the Oklahoma Administrative Procedure Act. Title 75 O.S.1981 § 306 of the APA does not permit review on the merits of any action taken by an administrative agency. Section 306 applies to a determination of validity or applicability of an agency rule. Neither was the review authorized under § 318 of the APA as that section only allows judicial review of a “final order” in an “individual proceeding.” The determination of the Commission to make a referral was not a final order within the meaning of the APA. The Commission made no final order concerning the validity of the loans in that it did not fix an obligation nor impose any liability on Walters. In and of itself the determination to refer was without binding legal consequence. The determination standing alone is lifeless and is merely a preparatory to further proceedings. If and when the appropriate authority brings charges against Walters for violations of the Act, the issue of the validity of the loans will come to life. Georator Corp. v. Equal Emp. Opp. Com’n, 592 F.2d 765 (4th Cir.1979). In addition, the Commission’s determination could not be considered a final order because the Commission does not deal with conclusions of law for it has no adjudicative functions. As we have previously observed, the Commission is only authorized to make a determination to refer a complaint to the appropriate authority based on facts revealed in its nonadjudicative, administrative investigations. Grand River Dam Authority v. State, 645 P.2d 1011, 1019 (Okla.1982). Therefore, we find the district court’s ruling was in excess of its authority.

CONCLUSION

In summary, we find § 4207(H) constitutional and Walter’s vagueness attack on that provision must fail. Our reading of the statute indicates it requires the Commission to conduct its investigative proceedings consistent with the minimal procedural protections of due process under the Federal and State Constitutions. U.S. Const, amend. XIV; Okla. Const, art. II, § 7. We additionally find Walters was fully afforded all procedural due process rights to which he was entitled inasmuch as the facts were undisputed and no actual prejudice was shown. Lastly, we find the legality of the loans in question was not a properly tendered issue in a declaratory judgment action and therefore the trial court’s ruling was in excess of its authority-

The judgment of the trial court is reversed. The case is remanded with directions to vacate the injunction and the matter shall proceed in the manner prescribed by the Act.

DOOLIN, C.J., and LAVENDER, SIMMS, OPALA, ALMA WILSON and SUMMERS, JJ., concur.

HARGRAVE, V.C.J., and KAUGER, J., disqualified.

1 . We stated in our Writ of Prohibition issued October 13, 1986, in this matter:

“The decision of the Commission to refer a matter to a prosecutor is non-adjudicative in character, but rather investigatory and non-final in nature and therefore non-reviewable in district court. Tweedy v. Oklahoma Bar Association, 624 P.2d 1049, 1052 (Okl., 1981).

“This order does not bar the district court’s cognizance over issues now tendered, or to be tendered in that court under the provision of 75 O.S.1981, § 306, [Administrative Procedures Act] or under 12 O.S.1981, § 1651 [Declaratory Judgment Act]. See also: C.F. Braun & Co. v. Corporation Commission, 609 P.2d 1268, 1273, 1274 (Okl., 1980).

"An in camera inspection of confidential material is authorized only to the extent that it is essential to a determination of the issues properly tendered in the declaratory judgment action.”

2 . Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946); Winters v. Governor’s Special Committee, 441 P.2d 370, 373 (Okla.1967).

3 . Cf. Falsone v. United States, 205 F.2d 734, 737 (5th Cir.1953).

4 . Reherman v. Oklahoma Water Resources Bd., 679 P.2d 1296, 1300 (Okla.1984).

5 . Citicorp Sav. & Trust Co. v. Banking Bd., 704 P.2d 490, 495 (Okla.1985); Hennessey v. Inde-pend. Sch. Dist. No. 4, Lincoln Cty., 552 P.2d 1141, 1145 (Okla.1976).

6 . Id.

7 . Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Hannah v. Larche, 363 U.S. at 442, 80 S.Ct. at 1514; Wood v. Independent School Dist. No. 141, 661 P.2d 892, 896 (Okla.1983).

8 . Hannah v. Larche, 363 U.S. at 451, 80 S.Ct. at 1519.

9 . Robbins v. Oklahoma Alcoholic Beverage Con. Bd., 461 P.2d 610, 613 (Okla.1969) (case arising under APA).

10 .United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); Green v. State, 713 P.2d 1032 (Okla.Crim.1985).