Thomas v. Henry

• Decision Date: 14 June 2011
• Docket Number: No. 107,201.,107,201.
• Citation: 2011 OK 53,260 P.3d 1251,32 IER Cases 799
• Parties: Michael C. THOMAS, Appellant/Counter–Appellee,v.Brad HENRY, Governor, State of Oklahoma, and Board of County Commissioners of Tulsa County, Appellee/Counter–Appellant.
• Court: Oklahoma Supreme Court

260 P.3d 1251

32 IER Cases 799

2011 OK 53

Michael C. THOMAS, Appellant/Counter–Appellee,

v.Brad HENRY, Governor, State of Oklahoma, and Board of County Commissioners of Tulsa County, Appellee/Counter–Appellant.

No. 107,201.

Supreme Court of Oklahoma.

June 14, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld Unconstitutional22 Okl.St.Ann. § 171.2(C); 70 Okl.St.Ann. § 3242(A)(1, 2)APPEAL FROM THE DISTRICT COURT, OF TULSA COUNTY; HONORABLE JEFF SELLERS, DISTRICT JUDGE¶ 0 Appellant/Counter–Appellee Michael C. Thomas filed a petition in the district court of Tulsa County, Oklahoma, seeking a declaratory judgment that H.B.1804, The Oklahoma Taxpayer and Citizens Protection Act of 2007, is unconstitutional. The Board of County Commissioners was dismissed by the trial court and is not a party to the appeal.

The trial judge partially granted plaintiff's motion for summary judgment, ruling that H.B.1804 did not violate the Constitutional provisions urged by the plaintiff, except for that portion of Section 13 that amended 70 O.S. Supp.2006 § 3242 A(1) and (2) to deny resident tuition for higher education to those who have passed the GED test. We affirm the trial court except as to Section 5(C) of H.B.1804 (codified at 22 O.S. § 171.2(C)), which creates a presumption of flight risk and is a special law that violates Article 5, § 46 of Oklahoma's Constitution.THE TRIAL COURT IS AFFIRMED IN PART, REVERSED IN PARTSteven R. Hickman, James C. Thomas, Thomas Law Firm PLLC, Tulsa, Oklahoma, for Appellant/Counter–Appellee.M. Daniel Weitman, Sandra D. Rineheart, Office of the Attorney General of the State of Oklahoma, Oklahoma City, Oklahoma, for Appellee/Counter–Appellant.PER CURIAM.

¶ 1 Plaintiff/Appellant Michael C. Thomas filed suit in district court seeking a declaratory judgment that H.B.1804, the Oklahoma Taxpayer and Citizens Protection Act of 2007, 51st Leg., 1st Sess. (Okla.2007), is unconstitutional. The plaintiff sued Brad Henry, Governor of the State of Oklahoma, and the Board of County Commissioners of Tulsa County.¹ The Board of County Commissioners of Tulsa County was dismissed as a defendant upon stipulation of the parties and is not a party to the appeal. The Governor did not object to being named a defendant.

¶ 2 The defendants filed a motion to dismiss, claiming that the plaintiff lacked standing to sue. The trial judge denied the defendants' motion to dismiss. Plaintiff filed a motion for summary judgment. The trial judge partially granted the motion for summary judgment, finding that Section 13(A)(1) and (2) violated the single-subject rule. The trial judge severed that portion from the remainder of H.B.1804 and held that the remainder of H.B.1804 did not violate the Oklahoma constitutional provisions urged by the plaintiff. The plaintiff appealed and the defendant filed a counter-appeal, arguing that the trial court lacked jurisdiction because the plaintiff lacked taxpayer standing to challenge H.B.1804 and that the trial court erred in determining that a portion of Section 13 of the Act violated the single-subject rule and was severable. The plaintiff's motion to retain the appeal in the Supreme Court was granted. The plaintiff filed a motion for oral argument to which the defendant objected. The motion for oral argument is denied.

STANDING

¶ 3 Plaintiff's standing to sue in this case is based on his status as a resident taxpayer challenging the wrongful expenditure of public funds. ² The plaintiff argues that implementing and enforcing an unconstitutional statute will result in the illegal expenditure of public funds. The Attorney General, representing Governor Henry, argues that more than “implementing” an unconstitutional statute must be involved: the statute itself must be for the purpose of appropriating public funds or spending public funds illegally.

¶ 4 The Attorney General argues that H.B.1804 is a non-fiscal, non-appropriation bill that neither appropriates public funds nor expends public funds. The Attorney General argues that taxpayer standing has never been based on the incidental costs of enforcing a statute that is a non-fiscal/non-appropriation statute.

¶ 5 The plaintiff argues that it is a legal wrong for the state to spend public money to enforce a statute that is unconstitutional. Plaintiff gives as example Section 12 of the Act that requires the Department of Public Safety (DPS) to establish a fraudulent documents identification unit subject to availability of funding and requires the DPS to “employ sufficient employees to investigate and implement such a unit.” Plaintiff further argues that enforcement of the requirements of the Act will put fiscal strain on the budgets of the state, counties, schools and universities to comply.

¶ 6 We held in Oklahoma Public Employees Association v. Oklahoma Department of Central Services, 2002 OK 71, 55 P.3d 1072, that a taxpayer possesses standing to seek equitable relief when alleging that violation of a statute will result in illegal expenditure of public funds. That case involved a contract entered into by DHS to outsource the management of a mental health facility in Enid, as well as a contract to furnish the private company with food, pharmaceuticals and medical supplies using state contracts. Oklahoma Public Employees Association (OPEA) sought a permanent injunction/declaratory judgment against implementation of the contracts and argued that it had standing to sue because DHS violated state statutes or public agency rules that would result in the illegal expenditure of public funds. This Court affirmed the trial court and held that the members of OPEA, as taxpayers, possessed standing to challenge an alleged wrongful expenditure of public funds.

¶ 7 The trial judge in this case overruled the Governor's motion to dismiss based on the taxpayer's lack of standing. We agree with the trial judge that there is a sufficient involvement of public funds at issue to warrant taxpayer standing to challenge the Act. The Attorney General's interpretation that taxpayer standing can arise only when dealing with appropriated funds is too restrictive.

CONSTITUTIONAL CHALLENGES

¶ 8 In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality. Fent v. Okla. Capitol Improvement Authority, 1999 OK 64, ¶ 3, 984 P.2d 200, 204. Every presumption is to be indulged in favor of the constitutionality of a statute. Id. We turn now to the plaintiff's challenges based on alleged violations of Oklahoma's Constitution. Plaintiff challenges H.B.1804 as violating Article 5 § 57, Article 5 §§ 46, 59, Article 4 § 1, and Article 5 § 48 of Oklahoma's Constitution. Plaintiff challenges H.B.1804 only on the specific alleged violations of Oklahoma's Constitution. No separate questions of federal law are presented. In a federal court challenge to Sections 7 and 9 of H.B.1804, the Tenth Circuit Court of Appeals recently affirmed the granting of a preliminary injunction prohibiting the enforcement of Section 7(C) and Section 9 of H.B.1804 on the grounds of irreparable harm and the likelihood that the plaintiffs will prevail on their challenge to those sections as preempted by federal immigration law and, hence, unconstitutional as a violation of the Supremacy Clause of the United States Constitution. ³ Chamber of Commerce of the United States of America v. Edmondson, 594 F.3d 742 (10th Cir.2010).

I.SPECIAL LAW

¶ 9 Plaintiff asserts that H.B.1804 is unconstitutional on its face because it contains one or more special laws in direct violation of Okla. Const., Art. 5, §§ 46, 59. Art. 5, § 46 provides that the legislature shall not, except as otherwise provided in the Constitution, pass any local or special law authorizing certain specified acts.⁴ Article 5, § 59 provides that laws of a general nature shall have a uniform operation throughout the state and where a general law can be made applicable, no special law shall be enacted. The trial judge found that the provisions of H.B.1804 do not violate the Constitutional provisions against the passage of local or special laws.

¶ 10 The plaintiff objects specifically to Section 5(C) of H.B.1804 (codified at 22 O.S. § 171.2(C)) which provides: “For the purpose of determining the grant or issuance of bond, it shall be a rebuttable presumption that a person whose citizenship status has been verified pursuant to subsection (B) of this section to be a foreign national who has not been lawfully admitted to the United States is at risk of flight.” The plaintiff alleges that Section 5(C) of H.B.1804 (codified at 22 O.S. § 171.2(C)) falls into the § 46 prohibition because it facially conflicts with the prohibition against special laws that change the rules of evidence in judicial proceedings, as well as special laws authorizing limitation of civil or criminal actions. Plaintiff says that this changes the rules of evidence in judicial proceedings when such proceedings deal with the release of a prisoner on bail, and that limitation on the issuance of bail also conflicts with the prohibition on limitation of civil or criminal actions.

¶ 11 The Attorney General asserts that subsection C must be read with the rest of the section. Title 22 O.S. § 171.2(A) states when a person charged with a felony or driving under the influence is confined for any period in jail, a reasonable effort shall be made to determine the citizenship status of the confined person. Subsection B provides that if the prisoner is a foreign national, the jail keeper or other officer shall make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and, if so, that such lawful status has not expired. The Attorney General argues that the constitutional prohibition in § 46 does not mean that the legislature cannot pass any laws on the twenty-eight subjects listed in § 46, but only that it cannot pass special laws on...