Ethics Com'n v. Keating

• Citation: 958 P.2d 1250,1998 OK 36
• Decision Date: 05 May 1998
• Docket Number: No. 90010,90010
• Parties: ETHICS COMMISSION, State of Oklahoma, Petitioner, v. Frank KEATING, Governor, State of Oklahoma, Respondent.
• Court: Supreme Court of Oklahoma

Page 1250

958 P.2d 1250

1998 OK 36

ETHICS COMMISSION, State of Oklahoma, Petitioner, v. Frank KEATING, Governor, State of Oklahoma, Respondent.

No. 90010.

Supreme Court of Oklahoma.

May 5, 1998.

As Corrected Aug. 20, 1998.

Rebecca Adams, General Counsel Ethics Commission, and David W. Lee of Comingdeer & Lee, Oklahoma City, for Ethics Commission of the State of Oklahoma.

Robert G. McCampbell and Mary H. Tolbert of Crowe & Dunlevy, Oklahoma City, for Frank Keating, Governor of the State of Oklahoma.

SUMMERS, Vice Chief Justice.

¶1 Governor Frank Keating and the Oklahoma Ethics Commission have joined in asking this Court to assume original jurisdiction and decide their well publicized controversy. For the reasons to be stated we grant their joint Application to Assume. Our decision is that the transportation provided to the Governor by the Department of Public Safety did not violate the Ethics Commission's Rule, that the Rule as written is overly broad in that it purports to control the Governor's statutorily provided security, and that it may not be enforced against the Governor in the context of the facts of this case as stipulated.

¶2 The Ethics Commission has a Rule that prohibits the use of public property for a partisan political fundraiser. The Governor has appeared at fundraisers for candidates using transportation provided by the Department of Public Safety (Department or DPS). A statute requires the Department to provide transportation to the Governor. The Ethics Commission says that the Governor cannot use this transportation to attend partisan political events. The Governor says that the statute controls. Both sides have asked us to assume original jurisdiction, and each argues that the issues involved in this controversy require a prompt resolution by this Court. ¹

I. ASSUMPTION OF ORIGINAL JURISDICTION

¶3 Before addressing the merits we must inquire whether the controversy is of such a nature that this Court should assume original jurisdiction. Three related controversies involving the Governor and Ethics Commission are pending in the District Court of Oklahoma County. We are not asked to supervise the District Court controversies, but to assume concurrent original ¶4 The Ethics Commission argues that time is of the essence. It contends that the three pending suits in Oklahoma County District Court (not to mention any subsequent appeals) cannot be adjudicated prior to the 1998 elections. It further argues that it is a nonpartisan constitutional agency, and that it seeks an immediate adjudication of the issue in order to avoid the appearance of playing a part in the outcome of the 1998 elections. It points out that the issue is one of first impression, that the District Court has ruled that a declaratory judgment is a form of relief not available to the parties in that forum, and that the District Court suits are progressing at different rates. The Governor makes similar arguments, and points to the financial strain on the public purse.

jurisdiction and grant declaratory relief on the merits of the issue before the District Court. Frequently, when this Court has assumed original jurisdiction in a publici juris controversy we have done so because of a public need for a speedy judicial determination. See, e.g., Post Oak Oil Co. v. Oklahoma Tax Commission, 1978 OK 20, p 5, 575 P.2d 964, 967; Halstead v. McHendry, 1977 OK 131, p 4, 566 P.2d 134, 136.

¶5 In several controversies we have concluded that a public need for speedy judicial determination was present when the assumption of original jurisdiction was essential for the orderly fiscal management and budgeting of state and local governmental entities. Keating v. Johnson, 1996 OK 61, p 10, 918 P.2d 51, 56; Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069. But the issue before us does not involve budgeting processes or expending funds of the Commission or the Governor. Rather, the essence of the arguments is that the cost of protracted District Court litigation will drain the fiscal resources of the Commission and Governor, and thereby negatively impact the performance of their public duties. Tied to this argument is the concept that the public should not be required to pay needless litigation costs.

¶6 The litigation-cost argument is similar to those in Board of County Commissioners of Harmon County v. Keen, 194 Okla. 593, 153 P.2d 483 (1944) and Atchison T. & S.F. Ry. Co. v. Love, 29 Okla. 738, 119 P. 207 (1911). In the former case the Court explained why it would grant prohibition in the context of assuming original jurisdiction. We said that allowing further proceedings when no cause of action existed against a board of county commissioners would result in "a burdensome and expensive trial that will consume public funds, a part of which would not be taxable costs, and those that are taxable might not be recoverable." 153 P.2d at 485. In Atchison T. & S.F. Ry. Co., the railroad sought original jurisdiction relief and a writ to the Corporation Commission. We said that "the interest of the state" required an early settlement on the issue of the jurisdiction of the Commission, and we then said that several unwarranted proceedings before the Commission would be "an injustice to the people who patronize this transportation company, for upon them finally will fall the great expense growing out of that class of litigation." Id. 119 P. at 208.

¶7 This authority provides a strong argument for our assumption of original jurisdiction. However, many agencies of this State are involved in litigation, and often in opposition with other State agencies. This Court cannot serve as a court of first resort for all such disputes when a district court possesses concurrent jurisdiction. Keating v. Johnson, supra. Intra-governmental disputes are generally adjudicated in a district court with review in this Court by appeal. See e.g., Breeden v. Nigh, 1968 OK 88, 441 P.2d 981, where we affirmed the district court's writ of mandamus in a dispute between the Lieutenant Governor and the Director of the Oklahoma Industrial Development and Park Commission. One reason that makes this case an exception is that a pressing need for prompt resolution is present in order to avoid a disruption of the Ethics Commission's ability to function.

¶8 In Association of Classroom Teachers of Okla. City, Inc. v. Independent School Dist. No. 89 of Okla. County, 1975 OK 118, 540 P.2d 1171, we explained that a time- ¶9 The Commission states that the dispute is straining its financial and personnel resources, and that a prompt adjudication is necessary. It reports that its "small staff needs to prepare for the 1998 elections--a process which, for many filers, has already commenced." It further states that only a rapid disposition of the controversy can assure a smooth operation of its functions associated with the 1998 elections. The election process is protected by our fundamental law, and the Ethics Commission is charged by our State Constitution to investigate and prosecute violations of its rules involving election campaigns. Simpson v. Dixon, 1993 OK 71, p 15, 853 P.2d 176, 183-184; Okla. Const. Art. 29 § 4. Although we most often decide election-jurisprudence disputes in the context of reviewing an adjudication of a district court, ² we have assumed original jurisdiction in certain disputes without requiring those litigants to first seek relief in a district court. See e.g., Box v. State Election Board of Oklahoma, 1974 OK 104, 526 P.2d 936; Golden v. Okfuskee County Election Bd., 1986 OK 57, 723 P.2d 982. In this publici juris dispute where public funds may be needlessly expended and the 1998 campaign season has commenced, the public's interest in a functioning Ethics Commission for the 1998 election season outweighs the need for the dispute to be resolved first in the District Court. ³ We accordingly assume original jurisdiction pursuant to Art. 7, § 4 of the Oklahoma Constitution.

                consuming district court trial and subsequent appeal would have led to a disruption of the educational system in a teacher-contract dispute.  Id. at p 20, 540 P.2d at 1175.   We noted the disruption to fiscal planning and administration of the school district.  Id. at p 8, 540 P.2d at 1174.   Original jurisdiction was assumed so that the important function of education would continue without disruption
                

II.

THE TRANSPORTATION PROVIDED TO THE GOVERNOR DID NOT VIOLATE THE ETHICS COMMISSION'S RULE

¶10 The Ethics Commission claims the Governor has violated their Rule 257: 10-1-3(a), which states:

A person shall not use or authorize the use of public funds, property, or time, to participate or assist in the organization of or preparation for a fundraiser for a campaign or in any solicitation of funds for or against a candidate for state office or a ballot measure.

74 O.S.Supp.1995, Ch. 62, App., Rule 257:10-1-3(a).

¶11 The Governor claims his use of a state vehicle to attend political fundraisers is The Commissioner of Public Safety shall provide personal security and protection, transportation, and communications capabilities for the Governor, the Governor's immediate family, and the Lieutenant Governor.

authorized by the statute at 47 O.S.Supp.1992 § 2-101(b), in relevant part as follows:

¶12 The Department provides a car designated as the "Governor's car" for the Governor to use as transportation. DPS occasionally provides the Governor with an Oklahoma Highway Patrol cruiser for the purpose of transportation. It also provides the Governor with an aircraft for transportation purposes.

¶13 The facts, as stipulated by the parties, show that the Governor used the Governor's car and the DPS aircraft to attend meetings held for the purpose of raising funds for entities affiliated with a political party and raising funds for individuals campaigning for various public offices. They describe one instance of the Governor using an Oklahoma Highway Patrol cruiser for this purpose. The...