Fent v. State ex rel. Ocia

• Decision Date: 24 March 2009
• Docket Number: No. 106,611.,106,611.
• Citation: 214 P.3d 799,2009 OK 15
• Parties: Jerry FENT, as a resident taxpayer, citizen and voter of the State of Oklahoma, and all other similar persons, Petitioner, v. STATE of Oklahoma, ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Respondent.
• Court: Oklahoma Supreme Court

214 P.3d 799

2009 OK 15

Jerry FENT, as a resident taxpayer, citizen and voter of the State of Oklahoma, and all other similar persons, Petitioner, v. STATE of Oklahoma, ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Respondent.

No. 106,611.

Supreme Court of Oklahoma.

March 24, 2009.

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR DECLARATORY RELIEF

¶ 0 The petitioner, Jerry R. Fent, challenges Senate Bill No. 1374, Okla. Sess. L.2008, Ch. 431, § 2 and § 3 as violating the single subject rule mandated by art. 5, § 57 of the Oklahoma Constitution. The bill concerns authorization for the Oklahoma Capital Improvement Authority to issue bonds for three projects. We assume original jurisdiction and hold that: 1) the petitioner is not precluded from challenging § 2 and § 3 of the legislation, even though the bonds authorized by § 1 have issued; and 2) § 2 and § 3 of Senate Bill No. 1374 are unconstitutional and void because the enactment violates the single subject rule mandated by the terms of art 5, § 57 of the Oklahoma Constitution.

ORIGINAL JURISDICTION ASSUMED; DECLARATORY RELIEF GRANTED.

Jerry R. Fent, Oklahoma City, OK, Pro Se Petitioner.

Lynn C. Rogers, Scott D. Boughton, Assistant Attorneys General, Oklahoma City, OK, for Respondent.

ORDER

KAUGER, J.

Original jurisdiction is assumed. Okla. Const. art. 7, § 4. A written opinion from the Court will follow. However, today we determine that Senate Bill No. 1374, Okla. Sess. L.2008, Ch. 431, §§ 2 and 3, insofar as it pertains to the Oklahoma Conservation Commission and the River Parks Authority, is hereby declared unconstitutional and void, because the enactment violates the one-subject rule mandated by the terms of art. 5, § 57 of the Oklahoma Constitution.

¶ 1 The first impression issues presented are: 1) whether the petitioner is precluded from challenging only a portion of Senate Bill 1374, Okla. Sess. L.2008, Ch. 431, § 2 and § 3, as unconstitutional;¹ and 2) if not, whether the specific portions of the legislation challenged in this original proceeding are unconstitutional and void because the entire original enactment violates the single subject rule mandated by the terms of art. 5, § 57, Oklahoma Constitution.² We hold that: 1) the petitioner is not precluded from challenging § 2 and § 3 of the bill pertaining to the Oklahoma Conservation Commission and the River Parks Authority; and 2) § 2 and § 3 are hereby declared unconstitutional and void.

FACTS

¶ 2 Senate Bill 1374 of the 2008 Second Session of the 51st Legislature (SB 1374), authorizes the Oklahoma Capitol Improvement Authority (OCIA) to issue obligations to finance projects for the Native American Cultural and Educational Authority, the Oklahoma Conservation Commission, and the River Parks Authority. The petitioner, Jerry R. Fent (Fent/petitioner), challenges the validity of SB 1374 and asserts that it violates article 5, § 57 of the Oklahoma Constitution because it includes more than one subject. Because the bonds have already been issued for § 1 of the bill (the portion concerning the Native American Cultural and Educational Authority), Fent only seeks to have § 2 and § 3 of the bill declared unconstitutional and void.

¶ 3 Conversely, the respondent, the State of Oklahoma (respondent/State) argues that because the bonds have already issued for § 1, the petitioner should be prevented from challenging any portion of the bill. The State also contends that even if Fent were allowed to challenge it, the remainder of the bill is constitutional because the term "subject" relates to "all matters having a logical or natural connection," and the legislation concerns only one subject. We assumed original jurisdiction³ on February 26, 2009, and issued a brief order declaring § 2 and § 3 of the Senate Bill 1374 unconstitutional. Today, we explain the rationale behind our decision.

I.

¶ 4 THE PETITIONER IS NOT PRECLUDED FROM CHALLENGING ONLY THE PORTIONS OF THE LEGISLATION WHICH CONCERN UNISSUED BONDS.

¶ 5 Both the petitioner and respondent correctly note that the bonds for the first section of the bill have already been issued and that the petitioner failed to timely protest that section. The Attorney General has yet to file an executed certificate of regularity for the second and third sections of the bill. The State asserts that Fent must challenge the validity of the entire bill, not just a portion of it, and because he failed to timely protest the first section, he should be precluded from protesting the other sections.

¶ 6 Under 73 O.S. Supp.2002 § 160, this Court is given exclusive original jurisdiction to determine the validity of bond issues proposed by OCIA and any protest to those applications that may be filed.⁴ The statute also provides that the Court render a written opinion if it "shall be satisfied that the bonds or any portions thereof have been properly authorized in accordance with this act and the Constitution of Oklahoma."⁵

¶ 7 In Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, 984 P.2d 200, cert. denied 528 U.S. 1021, 120 S.Ct. 531, 145 L.Ed.2d 411, taxpayers brought an original action in this Court pursuant to § 160 challenging the constitutionality⁶ of two statutes which authorized the OCIA to issue over $300 million in bonds to fund various governmental projects. In response to the challenge, the OCIA defended the constitutional attack on the statutes and it also sought approval of a portion of the bonds to be issued—two bond issues totaling $165 million. The Court in Fent upheld the statutes as constitutional, and we approved the validity of the portion of the bonds for which the OCIA sought approval. Like Fent, the petitioners here also challenge a statute which authorizes the OCIA to issue bonds. Here, unlike Fent, a portion of the bonds were already issued before the statute was challenged.

¶ 8 Title 73 O.S.2001 § 158⁷ sets forth limitations on contesting any OCIA bond issue. Any challenge to a bond issuance must be made within thirty days of the filing of the Attorney General's executed certificate of regularity. The statute does not address whether any bond issuance under a challenged statute would preclude a challenge to any remaining unissued bonds. The State argues that, as a matter of equity, the petitioner should not be allowed to challenge any portion of a statute after some bonds have already been issued pursuant to the statute.⁸

¶ 9 This argument is unconvincing for several reasons. First, the petitioner is not challenging the bonds which have already been issued. Second, nothing in either 73 O.S.2001 § 158 or 73 O.S. Supp.2002 § 160 suggests that the Legislature intended to forego a challenge to unissued bonds merely because some bonds have been already been issued.⁹ In fact, § 160 specifically allows the Court to determine if any portion of the bonds are authorized.¹⁰ Finally, because we previously approved a portion of the bonds to be issued in Fent v. Oklahoma Capitol Improvement Authority, supra, at the request of the Authority, it would be incongruous to now deny a protestant the opportunity to challenge a portion of bonds which have not been issued. Accordingly, we determine that the petitioner should not be precluded from challenging only the unissued portion of the bond statute.

II.

¶ 10 SENATE BILL NO 1374 VIOLATES THE SINGLE SUBJECT RULE OF ART. 5, § 57 OF THE OKLAHOMA CONSTITUTION.

¶ 11 The petitioner argues that Senate Bill 1374 violates the single subject rule of art. 5, § 57 of the Oklahoma Constitution because it addresses the separate subjects of bond issuance for: 1) the Native American Cultural and Educational Authority; 2) the State's Oklahoma Conservation Commission; and 3) a local River Parks Authority. He seeks a writ declaring § 2 and § 3 of the new law unconstitutional. The respondent contends that the bill is constitutional because it addresses the single subject of approving funding of capital projects by state agencies through a common financing mechanism— revenue bonds issues by the OCIA.

¶ 12 The issue of whether the Legislature is constitutionally limited to one-subject legislation was settled in 1991 in Johnson v. Walters, 1991 OK 107, ¶ 22, 819 P.2d 694 and it has been decided at least five times since.¹¹ Under the doctrine of stare decisis,¹² and based on more than 16 years of established precedent, the answer to the petitioners' question is well settled. Nevertheless, because this is the second time in less than three months that we have had to strike legislation containing more than one unrelated subject,¹³ we assumed original jurisdiction to resolve the matter by written opinion.¹⁴

¶ 13 In Campbell v. White, 1993 OK 89, ¶¶ 19-20, 856 P.2d 255, we discussed the single subject rule as it pertained to art. 5, § 56 of the Oklahoma Constitution. We said:

... We are not free to so expand the meaning of constitutional provisions through the post-hoc application of an inconsistent functionality test. To do so would allow the Constitution to be read as permitting that which it was clearly meant to prohibit. The clear language of art. 5, § 56 requires that all special appropriations bills embrace a single subject. Because Senate Bill 142 and Senate Bill 725 contain a multiplicity of provisions unrelated to a common theme or purpose, they are unconstitutional.

This is the is the second time in less than two years that this Court has been called upon to determine whether legislatively enacted laws are unconstitutional for violation of the single-subject mandate ... We trust a third opinion will not be necessary. Our consideration for the practical operations of government should not be understood to be a shield for the continued enactment of unconstitutional laws. Although we are sympathetic with the time constraints the Legislature faces in session, this Court is bound to uphold the Constitution—we are prepared to do so.

¶ 14 Art. 5, § 57 of the Oklahoma Constitution provides: "Every act...