Ethics Com'n of State of Okl. v. Cullison, 79903

• Decision Date: 30 March 1993
• Docket Number: No. 79903,79903
• Citation: 850 P.2d 1069,1993 OK 37
• Parties: ETHICS COMMISSION OF the STATE OF OKLAHOMA, Petitioner, v. Robert V. CULLISON, President Pro Tempore of the Oklahoma Senate and Glen D. Johnson, Speaker of the Oklahoma House of Representatives, as Representatives of the Oklahoma Legislature, Respondents.
• Court: Oklahoma Supreme Court

Page 1069

850 P.2d 1069

1993 OK 37

ETHICS COMMISSION OF the STATE OF OKLAHOMA, Petitioner, v. Robert V. CULLISON, President Pro Tempore of the Oklahoma Senate and Glen D. Johnson, Speaker of the Oklahoma House of Representatives, as Representatives of the Oklahoma Legislature Respondents.

No. 79903.

Supreme Court of Oklahoma.

March 30, 1993.

Application for Declaratory Relief.

Ethics Commission of State of Oklahoma requests the Oklahoma Supreme Court to assume original jurisdiction and grant relief in the form of a declaration that House Joint Resolution 1077 of the Second Regular Session of the Forty-Third Oklahoma Legislature violates the Oklahoma Constitution and that the Ethics Commission did not receive proper legislative funding.

ORIGINAL JURISDICTION ASSUMED IN PART AND DENIED IN PART, DECLARATORY RELIEF GRANTED IN PART.

Clyde Muchmore, Harvey D. Ellis, Jr., Rebecca L. Adams, Oklahoma City, for petitioner Ethics Com'n of the State.

Burck Bailey, George F. Short, Cynthia L. Sparling, Dino E. Viera, Maribob L. Hammett, Oklahoma City, for respondents Robert V. Cullison and Glen D. Johnson.

Darryl F. Roberts, pro se.

Neal Leader, Asst. Atty. Gen., Oklahoma City, for amicus curiae Oklahoma Atty. Gen.

Richard C. Ogden, Joel L. Carson, Earnest Istook. Jr., Oklahoma City, Gary Gardenhire, Stanley M. Ward, Norman, for amici curiae.

SUMMERS, Justice.

In September of 1990 the people of Oklahoma voted to adopt a new Article to the State Constitution by way of Initiative Petition No. 341 and State Question No. 627. Thus Article 29 came into existence as a framework for a fresh scheme of ethical standards to be administered by a constitutionally created Ethics Commission. The Ethics Commission of the State of Oklahoma petitions this Court to assume original jurisdiction and issue a declaratory judgment. It seeks a ruling that House Joint Resolution 1077 of the Second Regular Session of the Forty-Third Legislature is unconstitutional in large part. H.J.R. 1077 contains 49 sections, and the Commission argues that sections 2-49 inclusive are contrary to the new Article 29. H.J.R. 1077, 1992 Okla.Sess.Laws 2207-2270.

In 1991 the Ethics Commission performed its constitutionally required duty, and promulgated rules governing the ethical conduct of certain public officials and employees. The Legislature in its 1992 session "disapproved" those rules, and the Commission does not question the validity of that disapproval. But the Legislature also enacted comprehensive statutory provisions governing the same subject matter as in the disapproved Commission's rules. The Commission argues that the Legislature usurped the function of the Commission by unilaterally creating the Legislature's own version of ethics rules in the form of statutes. The Commission also raises constitutional objections to the substance of several of the enactments as well The Respondents, Robert V. Cullison and Glen D. Johnson, are sued in their official capacities as President Pro Tempore of the Oklahoma Senate and Speaker of the Oklahoma House of Representatives. They contend that the Court should not, and cannot, assume original jurisdiction to decide the controversy. They also contend that the Legislature possesses the authority to disapprove of rules of the Ethics Commission, adopt ethics rules in the form of statutes, and thereby bypass Ethics Commission rulemaking-authority. State Senator Darryl F. Roberts filed a petition to intervene. He argues that this case should be dismissed upon the ground that the Legislature and its members are immune from suit, and that the court is without jurisdiction to decide the controversy. Certain Legislators appear as amici curiae. They are Ernest J. Istook, Jr., Frank Davis, Wanda Jo Peltier, Charles Key, Larry Hansen, Robert Worthen, Joan Greenwood, Grover Campbell, Bill Graves, Ed Apple, Tim Pope, Carolyn Coleman, Elmer Maddux, Charles Ford, Mike Fair, Helen Cole, Howard Hendrick, Mark Synder, Don Rubottom, Tony Caldwell, and Leonard Sullivan. They argue in support of the Commission that H.J.R. 1077 is unconstitutional. Amici curiae Common Cause of Oklahoma, League of Women Voters, Consumer Watch Committee of Oklahoma, Inc., Oklahomans for Integrity in Government, and Mexican American Political Association de Oklahoma also appear in support of the Commission that the Resolution is unconstitutional. Attorney General Susan B. Loving appears as amicus curiae and urges that the Court does not have jurisdiction.

as to the funding of the Commission by the Legislature.

The Commission attempts to invoke our original jurisdiction pursuant to Okla. Const. Art. 7 § 4 on the basis of this court's superintending control jurisdiction, ¹ on the doctrine of publici juris, and upon the circumstances of this dispute as being one between two powers of State government, each imbued with constitutionally vested authority. We find that the case before us presents one of those rare circumstances where this Court should grant a form of declaratory relief. We assume original jurisdiction in part, grant the request for declaratory relief in part, and decline to assume jurisdiction in part.

I.

The usual remedies employed by this Court in exercising superintending control are the constitutionally specified writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto. Okla. Const. Art. 7 § 4; Butler v. Breckinridge, 442 P.2d 313, 318 (Okl.1967); Board of Commissioners of Harmon County v. Keen, 194 Okl. 593, 153 P.2d 483, 485 (1944). The Commission stated at oral argument that none of the constitutionally listed writs are proper for this controversy, and requested a declaratory judgment. The Oklahoma Declaratory Judgments Act, 12 O.S.1991 § 1651-1657, provides no remedy to the Commission, as that Act expressly pertains to proceedings brought in the District Court. 12 O.S.1991 § 1651.

The argument that this Court can not exercise jurisdiction, and that the Commission has no legal right to vindicate, all because there is no common law remedy ² We have in the past provided a remedy when a branch of state government brings a legal claim alleging that an "intolerable conflict" exists with a co-ordinate branch of state government amounting to governmental gridlock. Swezey v. Fisher, 484 P.2d 501, 503 (Okla.1971). See also Moore-Norman Area Vocational Tech. Sch. Dist. v. Board of Trustees, 519 P.2d 497 (Okla.1974). We have further stated that a branch of government will not be permitted to destroy itself, and that this court must utilize an "appropriate remedy sufficient to preserve it." Davis v. McCarty, 388 P.2d 480, 488 (Okla.1964). The Commission claims that an intolerable conflict exists with the Legislature, and that the Commission's implementation of H.J.R. 1077 would effectively destroy the Commission. The requested relief is a claim that the Commission is adversely affected ⁵ by the face of the statute, and that it need not first violate the law in order to obtain a declaration as to the validity of the law. Such a claim is proper for declaratory relief. See Oklahoma Tax Commission v. Smith, 610 P.2d 794, 801 (Okla.1980). We conclude that providing a form of declaratory relief to resolve a claimed intolerable conflict between the Ethics Commission and the Legislature is consistent with those situations where this court has provided a remedy to resolve inter-governmental legal

for this particular controversy finds some support in common law prior to 1848, but it has no place in contemporary jurisprudence. Although Bracton argued as early as the thirteenth century that a remedy should exist for every wrong, the common law's system of particular writs and forms of action resulted in the legal remedy defining both the jurisdiction of the court and the rights of the parties in a particular case. See T. Plucknett, A Concise History of the Common Law, 354 (5th ed. 1956); J. Koffler and A. Reppy, Handbook of Common Law Pleading, 64 (1969). But forms of action have long been abolished in this State, ³ and our fundamental law indicates that judicially cognizable wrongs are not defined by particular remedies. Okla. Const. Art. 2 § 6. ⁴ Consistent with this authority we have explained that this court's superintending control is not limited to the constitutionally specified writs of Okla. Const. Art. 7 § 4. Board of Commissioners of Harmon County v. Keen, 194 Okl. 593, 153 P.2d 483, 485 (1944). See also State ex rel. Lemke v. District Court of Stutsman County, 49 N.D. 27, 186 N.W. 381, 386 (1921); Attorney General v. Railroad Companies, 35 Wis. 425, 515 (1874). Similarly, the question of whether a court should grant declaratory relief is not a question of the power or jurisdiction of the court to grant the relief, but the appropriateness of that particular procedure or remedy for the particular justiciable controversy. Conoco, Inc. v. State Depart. of Health, 651 P.2d 125, 131 (Okla.1982); Sheldon v. Powell, 99 Fla. 782, 128 So. 258, 262-263 (1930); Guaranty Trust Co. of New York v. Hannay, (C.A.) [1915] 2 K.B. 536. See also 1 W. Anderson, Actions for Declaratory Judgments, 2-11 (2d ed. 1951); E. Borchard, Declaratory Judgments, 233 (2d ed. 1941). This Court has the jurisdiction to provide declaratory relief so as to afford a party a means to vindicate a judicially cognizable interest claims within the discretionary superintending jurisdiction of this court.

II.

The jurisdiction of the Court is also challenged by the intervenor, Darryl F. Roberts, Majority Floor Leader of the Oklahoma Senate. He argues that the Speech or Debate Clause of the Oklahoma Constitution ⁶ prohibits the Commission from bringing this suit. We do not reach the merits of his argument because of the non-applicability of the clause to this controversy.

The Commission does not seek judicial review of the Respondents' acts as individual legislators. No act or omission in "speech or debate" attributable to either Respondent is challenged...