Fent v. Henry

• Decision Date: 15 February 2011
• Docket Number: No. 109,026.,109,026.
• Citation: 257 P.3d 984,2011 OK 10
• Parties: Jerry R. FENT, as a voter, attorney and taxpayer of the State of Oklahoma, and on behalf of the other 358,925 voters who objected to State Question No. 752 Legislative Referendum No. 352, Petitioners,v.Brad HENRY, Governor of the State of Oklahoma; State of Oklahoma, ex. rel., Oklahoma Bar Association, a State entity, and State of Oklahoma, ex. rel., Oklahoma Judicial Nominating Commission, Respondents,andClark Jolley, as a duly elected member of the Oklahoma State Senate and as a voter, Intervenor.
• Court: Oklahoma Supreme Court

257 P.3d 984

2011 OK 10

Jerry R. FENT, as a voter, attorney and taxpayer of the State of Oklahoma, and on behalf of the other 358,925 voters who objected to State Question No. 752 Legislative Referendum No. 352, Petitioners,

v.Brad HENRY, Governor of the State of Oklahoma; State of Oklahoma, ex. rel., Oklahoma Bar Association, a State entity, and State of Oklahoma, ex. rel., Oklahoma Judicial Nominating Commission, Respondents,andClark Jolley, as a duly elected member of the Oklahoma State Senate and as a voter, Intervenor.

No. 109,026.

Supreme Court of Oklahoma.

Feb. 15, 2011.As Corrected Feb. 15, 2011.

PETITION TO ASSUME ORIGINAL JURISDICTION¶ 0 This is an original proceeding to challenge the validity of State Question No. 752, Legislative Referendum No. 352 and the Judicial Nominating Commission. State Question No. 752 amended art. 7–B, § 3, of the Oklahoma Constitution to require that none of the lay members of the Commission have any “immediate family” members who are lawyers. It also amended the Constitution by adding two additional members, one to be selected by the President Pro Tempore of the Senate and the other by the Speaker of the House of Representatives. The amendment did not, however, change the constitutional language referring to six congressional districts which existed when the provision was first adopted, even though there are currently only five congressional districts. Because this cause is publici juris, we previously assumed original jurisdiction. We hold that: 1) the referendum submitted to and approved by the voters was an amendment to the Okla. Const. art. 7–B, § 3, not a repeal of that section of the Constitution; and 2) regardless of the Constitutional amendment, the Commission's decisions are valid when decided by a majority of its members.

ORIGINAL JURISDICTION PREVIOUSLY ASSUMED. REQUEST FOR RELIEF BY PETITIONER AND INTERVENOR DENIED.Jerry Fent, Oklahoma City, OK, Pro Se Petitioner.Drew Edmondson, Attorney General, Kevin McClure, Assistant Attorney General, Oklahoma City, OK, for Respondents Governor Brad Henry, Governor of the State of Oklahoma, State of Oklahoma ex. rel. Judicial Nominating Commission.Gina Lynn Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Respondent, Oklahoma Bar Association.Richard Lee Slater, Oklahoma City, OK, for Intervenor Senator Clark Jolley.PER CURIAM:

¶ 1 This original proceeding challenges the validity and requirements of State Question No. 752 Legislative Referendum No. 352. We previously assumed original jurisdiction in this publici juris matter and hold that: 1) the referendum submitted to and approved by the voters was an amendment to the Okla. Const. art. 7–B, § 3, not a repeal of that section of the Constitution; and 2) regardless of the Constitutional amendment, the Commission's decisions are valid when decided by a majority of its members.

FACTS

¶ 2 Legislative Referendum No. 352 (S.J.R. No. 27/State Question No. 752) passed the House of Representatives on April 23, 2009, and the Senate on May 19, 2009. It was received by the Secretary of State on May 20, 2009, and referred to the Attorney General for review of the ballot title on the same date pursuant to 34 O.S. Supp.2008 § 9(c).¹

¶ 3 On June 1, 2009, the Attorney General notified the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Secretary of State that the ballot title did not adequately explain the effect of the proposition. On June 15, 2009, a preliminary ballot title was prepared by the Attorney General which was followed by the final ballot title on July 1, 2009. Again notice was given to the same parties. On August 10, 2010, the Governor issued an executive proclamation which ordered the question be submitted to the voters. On November 2, 2010, State Question 752 was approved by the voters by a margin of 606,805, yes to 358,925, no and became effective when the election was certified.²

¶ 4 All of the proposed legislative joint resolutions refer to the change as an amendment,³ along with the ballot measure submitted to the voters ⁴ which stated that “[t]his measure amends a section of the Oklahoma Constitution. It amends Section 3 of Article 7–B.” ⁵ The 2010 amendment amended the qualifications of members of the Commission to require that any lay member who serves on the Judicial Nominating Commission shall not have any “immediate family” members who are lawyers. It also amended the Constitution by adding two additional members, one to be selected by the President Pro Tempore of the Senate and the other by the Speaker of the House of Representatives. Although earlier proposed versions of the amendment attempted to change the provision's language referring to the numerical components of six congressional districts, which existed when the provision was first adopted, to five congressional districts, the Legislature declined to make this change.⁶

After a committee meeting and floor reading of the proposed change, the final version of the referendum left the number of members to correspond with six congressional districts as they existed when the constitutional provision was first adopted in 1967.⁷

¶ 5 On December 20, 2010, the petitioner, Jerry Fent, a citizen of the State of Oklahoma, and member of the Oklahoma Bar Association, challenged the validity of the Judicial Nominating Commission when he filed an application to assume original jurisdiction in this Court. The petitioner also requested that the actions of the Judicial Nominating Commission be stayed and that four of the Justices on this Court be disqualified/recuse in the matter. We denied the request for a stay on December 20, 2010. Those Justices declined the petitioner's request, and in oral argument, the petitioner withdrew his objection to the composition of the Court.

¶ 6 On December 27, 2010, Senator Clark Jolley petitioned to intervene asserting an interest in the matter as a member of the Senate who voted on the measure. We granted the motion to intervene.⁸ The intervenor alleges that the intent of State Question 752 was to expand the commission from 13 to 15 members and to fill all 15 positions with all new appointees. Nothing in the ballot title or legislative history supports this position. The voters were certainly not informed that their yes vote would totally dissolve the Judicial Nominating Commission. The voters were informed that this State Question amended future requirements for lay members and added two new lay members.

¶ 7 After the measure was passed by the voters, the chairman of the Judicial Nominating Commission submitted two questions to the Attorney General:

1) Do the new qualifications for non-lawyer of the Judicial Nominating Commission, found in Okla. Const. art. 7–B, § 3, adopted by State Question No. 752, apply to the current Commission members who were appointed prior to the adoption of State Question No. 752?

2) What does the term “immediate family” in Okla. Const. art. 7–B, § 3, adopted by State Question No. 752, mean?

Before the questions were answered, the three members of the Commission who had “immediate family” members who were lawyers resigned, and they were replaced by the Governor. On December 8, 2010, the Attorney General recognized that new requirements for holding a constitutionally created office are not enforced against an incumbent during a term of office which began before the effective dates of the new requirements.⁹ The Attorney General determined that because there was no language in either the ballot title or the amendment which indicated an intent otherwise, the amendment could not be applied retroactively, and that the current commission members appointed prior to the November 2010 amendment of the Okla. Const. art. 7–B, § 3 were not subject to the new qualifications.¹⁰ Notwithstanding the Attorney General's opinion, all of the members who did not meet the new qualifications resigned and were replaced by new appointments who did meet the new qualifications.¹¹

¶ 8 On December 20, 2010, we denied the petitioner's motion for a stay and granted until January 5, 2011, for the briefing cycle to be completed. Because the matter concerns the public interest, i.e., the case is publici juris in nature, which essentially means affecting the people or community at large, we assumed original jurisdiction to decide the matter.¹² The final briefing cycle was completed on January 28, 2011, and oral argument was held February 8, 2011.

I.¶ 9 THE REFERENDUM SUBMITTED TO AND APPROVED BY THE VOTERS WAS AN AMENDMENT TO THE OKLA. CONST. ART. 7–B, § 3, NOT A REPEAL OF THAT SECTION OF THE CONSTITUTION.

¶ 10 The parties allege that the voters repealed the previous constitutional provision. The petitioner argues that: 1) when the Commission was created there were six congressional districts and the Commission required membership from each district “existing at the date of the adoption of this Article;” 2) the number of congressional districts has changed since the Commission was first created and now there are only five congressional districts but the new version of art. 7–B, § 3 repealed the prior version and does not properly reflect the change in congressional districts; and 3) because the change from six to five was not made a conflict has been created.

¶ 11 After Oklahoma's Court reorganization in the late 1960's, the way in which Justices and Judges were selected in Oklahoma was changed by the voters and embraced by Legislative Referendums which amended the Oklahoma Constitution. Article 7–B, § 1–7 was created in 1967 and with its adoption, § 7–B specifically included a clause referring to the repeal of previously existing articles which would apparently conflict with this new provision.¹³ This type of repeal language is consistent with our long standing rules of law that: 1) repeals by implication are never favored; ¹⁴ 2) it is not presumed that the legislature, in the enactment of a subsequent ...