Dank v. Benson

• Decision Date: 23 May 2000
• Docket Number: No. 94,166.,94,166.
• Citation: 5 P.3d 1088,2000 OK 40
• Parties: Odilia DANK, Member of the Oklahoma House of Representatives, Petitioner, v. The Honorable Loyd BENSON, Speaker of the Oklahoma House of Representatives, Respondent.
• Court: Oklahoma Supreme Court

5 P.3d 1088

2000 OK 40

Odilia DANK, Member of the Oklahoma House of Representatives, Petitioner, v. The Honorable Loyd BENSON, Speaker of the Oklahoma House of Representatives, Respondent.

No. 94,166.

Supreme Court of Oklahoma.

May 23, 2000.

Gary W. Gardenhire, Norman, OK, for the petitioner.

W.A. Drew Edmondson, Attorney General of Oklahoma; Andrew Tevington, Asst. Atty. Gen.; and Neal Leader, Sr. Asst. Atty. Gen., Oklahoma City, OK, for the respondent.

Lee Slater, Oklahoma City, for amicus.

LAVENDER, J.

¶ 1 Dank [petitioner] asks this Court to decide whether the custom and practice employed in the House of Representatives when proposed legislation is brought up for final vote offends the provisions of Okla. Const. art. 5, § 34.¹ She also asks that, if current legislative procedure is found to be constitutionally deficient, the Court mandate what procedure the House should follow.² Before the merits of Dank's petition can be reached, the Court must decide if her claim is "justiciable," i.e., whether it is susceptible of judicial resolution. We conclude that her claim — presented, as it is, in the context of an intra-House dispute — is nonjusticiable.

I FACTS AND PROCEDURAL HISTORY

¶ 2 Petitioner Odilia Dank, a member of the Oklahoma House of Representatives [House] since 1994, today asks the Court to review how the House procedurally conducts itself when pressing for the final passage of a bill. She asserts that the House has "never" caused proposed legislation to be "read at length" before a final vote is taken on it — a process which, according to her, is constitutionally mandated. Dank contends the constitutionally-deficient legislative procedure persists in spite of several efforts on her part to change it. On past occasions petitioner has sought to have the House change its rules to comport with her understanding of the "read at length" requirement and she has raised (with limited success) points of order contesting the leadership's failure to comply with Okla. Const. art. 5, § 34's provisions.³ Dank has also secured an Oklahoma Attorney General's opinion⁴ on the meaning of the pertinent constitutional provision in an attempt to heighten the House's understanding of and compliance with the "read at length" provision.

¶ 3 Petitioner would have the Court (1) construe Okla. Const. art. 5, § 34's phrase "read at length" to mean "reading each and every word of the bill proposed to be finally passed from beginning to end, without omission and not in summary form"⁵ and (2) to condemn the House's internal custom and practice currently used to bring measures to a final vote (when these procedures do not require proposed legislation to be "read at length"). Petitioner's application does not challenge any specific, enrolled legislation as being constitutionally flawed. Rather the sole focus of her quest is reformation of the legislative process used to inform House members of a bill's content before a final vote is taken on the same. Lastly, petitioner's paperwork does not draw the Court's attention to any specific procedural infractions of a constitutional dimension in the current legislative session but rather predicts that the same will occur since they have in the past.⁶

¶ 4 Loyd Benson [respondent], the House Speaker, asserts absolute immunity to the petitioner's suit premised upon the protection afforded by the Speech and Debate clause⁷ to his conduct while presiding over the House. Since we find that the petitioner's application does not present a justiciable cause and hence decline to assume original jurisdiction over the same, it is not necessary to reach the merits of the respondent's claim of immunity.

II

DANK'S APPLICATION PRESENTS A NONJUSTICIABLE CLAIM

A

¶ 5 As we begin our analysis today, we are mindful of the Court's holding in City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640, 644 (1924), that:

"The judiciary system of this state is the creature of the Constitution and the statute laws of the state. The Supreme sovereign power of this state rests in the people of the state."

The enunciated legal principle rightly demands great respect for the people's will as expressed in the state's organic law. Though the resolution of causes often turn upon the law's minutiae, there are indeed conflicts — such as the one now before the Court — which find much of their resolution in broader constitutional principles.

¶ 6 Because Dank takes issue with the House procedure used to bring proposed legislation to a final vote, her action necessarily implicates the constitutionally-committed authority of each House⁸ to adopt its own rules of internal procedure. The requested relief asks the Court to interject itself into the legislative process constitutionally committed to the House of Representatives⁹ and render an opinion concerning how this body should conduct its business. While Oklahoma's Constitution gives the Supreme Court appellate jurisdiction to review and assess the lawfulness of legislative enactments and original jurisdiction over prescribed entities,¹⁰ only under the most exigent circumstances are we to intercede in the internal affairs of a coordinate branch of government when it exercises a function — i.e., legislative or executive — committed to it by the Constitution.¹¹ The framers clearly intended a separation of power¹² between the executive, legislative and judicial branches of government.¹³ General constitutional order is offended when one department of government usurps power expressly delegated to another.¹⁴ Hence, it is with heightened consideration that the Court assays Dank's application for the relief (a declaratory judgment and writ of mandamus) which she asks the Court to grant.

B

¶ 7 Petitioner claims there is a likelihood that the House (through its elected leadership, i.e., the Speaker) will engage in future procedural conduct which will be violative of Okla. Const. art. 5, § 34. In essence her claim — which is not based on actual, reported procedural acts of the current Legislature and does not assert constitutional flaws in enacted legislation — asks the Court to address a hypothetical situation which may or may not arise. It is not the business of the Court to give advisory opinions on hypothetical questions.¹⁵ [Were it different legislators could pose questions to the Court about proposed legislation — a process which today lies without the scope of the Court's jurisdiction.]

¶ 8 To be justiciable Dank's claim must be suitable for judicial inquiry. This requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature.¹⁶ Petitioner's claim fails to satisfy the enunciated test in two regards.

¶ 9 First, the petitioner's claim fails to satisfy the test's initial criterium, i.e., is the claim fixed and substantive and not of a hypothetical character. For the Court to assume original jurisdiction and to grant the requested form of relief the cause must be of sufficient immediacy and reality as to warrant the pronouncement of judgment. The asserted claim implicates neither (a) enrolled legislation carrying the force of law nor (b) an imminent constitutional crisis which threatens governmental operation. When in Ethics Com'n v. Cullison, 1993 OK 37, 850 P.2d 1069, the Court assumed original jurisdiction, the case clearly satisfied the justiciability criterium of "immediacy and reality" since it raised the specter of an "intolerable conflict" between co-ordinate branches of government which possessed the potential for governmental gridlock.¹⁷ Because no such immediacy or reality exists in the present cause,¹⁸ the test for justiciability remains unmet and original jurisdiction cannot be assumed.¹⁹

¶ 10 Secondly, because Dank's claim comes solely in the guise of an intra-House dispute, its justiciability must also be assessed in conjunction with the separation-of-powers doctrine. Dank's "application to assume original jurisdiction" asks the Court to issue mandamus to force the Legislature's compliance with the "read at length" provision. This the Court cannot do. Oklahoma's extant jurisprudence clearly delimits the Court's power over the Legislature. In Jones v. Freeman, 193 Okla. 554, 146 P.2d 564 (1944), it was held:

"The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution."

Generally speaking, the separation-of-powers doctrine prevents the Court's intrusion by writ of mandamus into the House's exercise of its constitutionally-assigned legislative function.²⁰ Because of the context in which the petitioner brings her application — an intra-House dispute — her cause is not susceptible of resolution through specific relief of a conclusive nature. Because there is no adequate relief which can be crafted to resolve Dank's claim [at least in the context in which it comes to the Court], petitioner's claim is not justiciable, i.e., suitable for judicial inquiry. It fails to satisfy the third element of the enunciated test for justiciability.

III CONCLUSION

¶ 11 By her application petitioner would have the Court assume original jurisdiction over an intra-House dispute, construe the "read at length" provision of Okla. Const. art. 5, § 34, and mandate rules of procedure to be used in the House to implement the Court's construction of the constitutional provision.

¶ 12 The declaratory relief which Dank seeks is not available under the facts of her application because it does not present circumstances imbued with the immediacy and reality required under Oklahoma's extant jurisprudence to grant a declaratory judgment. Further, the Court is without authority to interject itself into the legislative process [assigned by the...