Hendrick v. Walters

• Decision Date: 16 December 1993
• Docket Number: No. 82533,82533
• Parties: Howard H. HENDRICK, Petitioner, v. David Lee WALTERS, Respondent.
• Court: Oklahoma Supreme Court

Page 1232

865 P.2d 1232

1993 OK 162

Howard H. HENDRICK, Petitioner, v. David Lee WALTERS, Respondent.

No. 82533.

Supreme Court of Oklahoma.

Dec. 16, 1993.

ORIGINAL PROCEEDING FOR EXTRAORDINARY RELIEF.

Petitioner's quest for judicial pronouncement that the Governor forfeited his office by failure to take an oath in the form prescribed by the provisions of 51 O.S.1961 § 2.

ORIGINAL JURISDICTION ASSUMED; THE COURT PRONOUNCES THE GOVERNOR HAS NOT FORFEITED HIS OFFICE BY FAILURE TO TAKE AN OATH IN THE FORM PRESCRIBED BY THE PROVISIONS OF 51 O.S.1961 § 2.

Lana Jeanne Tyree, Cartwright & Tyree, Floyd Taylor, Susan Manchester, Taylor and Manchester, Oklahoma City, for petitioner.

Burck Bailey, Warren F. Bickford, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, for respondent.

OPALA, Justice.

The single issue of which we take original cognizance ¹ is whether the Governor has forfeited his office by failure to take an oath in the form prescribed by the provisions of 51 O.S.1961 § 2 [§ 2 or the statutory

oath]. ² We pronounce that the passage of State Question No. 466, Legislative Referendum No. 178, adopted by the people on September 9, 1969, Art. XV, § 1, Okl. Const. [the constitutional oath], effected a repeal by substitution of the statutory oath. ³ No public official is hence required to take an oath in that form to qualify for office and no vacancy stands created by a public official's failure to file a § 2 oath. ⁴ We conclude that the Governor has not forfeited his office. ⁵

I.

THE COURT'S ASSUMPTION OF ORIGINAL COGNIZANCE FOR

CONSIDERATION OF A SINGLE ISSUE

Petitioner Howard Hendrick [Petitioner or the Senator] tenders a public-law controversy the resolution of which will determine the legitimacy of the governor's incumbency and settle the issue whether public officials are required to take an oath in the form prescribed by the provisions of 51 O.S.1961 § 2.

Generally, forfeiture of office may be pressed in a civil action which does not depend upon any particular remedial variant and can be accommodated by judicial determination ⁶ within the framework of any suitable rubric. ⁷ Since a forfeiture cannot be remitted by the Legislature, a judicial declaration of whether one has occurred is imperative. Art. V, § 46, Okl. Const. ⁸ We

have chosen the method most effective procedurally, isolating for consideration and decision a single issue which--although not in the precise form advanced by Petitioner--is dispositive of this public-law controversy and will put to rest any concerns articulated by the parties. ⁹ We hence take today original cognizance of this justiciable controversy in which no other court can afford speedy and adequate relief. ¹⁰

II.

PETITIONER, A STATE SENATOR, HAS STANDING TO TENDER THE

ISSUE UNDER CONSIDERATION

Respondent challenges Petitioner's standing to bring the tendered issue. ¹¹ Standing refers to a person's legal right to seek relief in a judicial forum. ¹² It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. ¹³

When a member of the law-making assembly initiates legal proceedings in a representational capacity as a senator or a member of the House of Representatives, that legislator can claim no elevated status in establishing standing. The lawmaker must meet the same threshold criteria ¹⁴ required of any other litigant. ¹⁵ An initial inquiry must reveal that (1) an actual or threatened injury (sometimes called injury-in-fact) has occurred, (2) some relief for the harm can be Legislative process requires a substantial quantum of interaction by governor with legislator, whether the latter is a senator or a member of the House of Representatives. Our Constitution gives to a governor the duty (a) to call the Legislature into special session and specify the subject to be acted upon, ¹⁹ (b) to approve or to veto an enrolled bill, ²⁰ (c) to approve or disapprove appropriations, ²¹ (d) to communicate to the Legislature the condition of the State, ²² and (e) to make appointments, ²³ some of which require Senate confirmation. ²⁴ Governor and legislators are also linked by the former's adjournment powers ²⁵ and by shared pardon and parole

given, and (3) the interest to be guarded is within a statutorily or constitutionally protected zone. ¹⁶ Not only is standing confined to those whose interest in the controversy is "direct, immediate and substantial", ¹⁷ a litigant must also have a personal stake in the outcome. ¹⁸ responsibilities. ²⁶ The Senator's interacting contacts vis-a-vis the Governor include (a) giving and receiving constitutionally mandated communications, (b) confirming or refusing to confirm the Governor's appointees, (c) serving on appropriations and other committees, (d) voting on bills and (e) overriding vetoes. Whether the Senator's vote in the confirmation process or to override the Governor's veto is an exercise of futility or an effective governmental act depends upon the outcome of today's controversy. ²⁷ If the office is indeed vacant by forfeiture upon Respondent's failure to take an oath in the form prescribed by 51 O.S.1961 § 2, then the Senator's confirmation votes would be invited, and indeed cast, to place an imprimatur upon invalid appointments; and his vote to override the Governor's veto would be in vain. The Senator clearly has shown both a plain, direct and legitimate interest in having this court's declaration upon the tendered issue and a personal stake in the outcome. ²⁸ The controversy is lively, real and the requirement of justiciability hence clearly met. ²⁹

III.

ART. XV, § 2'S FORFEITURE-OF-

OFFICE CLAUSE TARGETS SOLELY FAILURE TO TAKE THE

CONSTITUTIONAL OATH REQUIRED OF ALL PUBLIC OFFICERS

The Oklahoma Constitution, this state's highest law to which all statutes must yield, must be so construed as to give effect to the intent of its framers and of the people adopting it. ³⁰ When a declaration of forfeiture is sought, the general principles of constitutional and statutory construction may be applied. The court must be mindful of this The oath prescribed by Art. XV, § 1, Okl. Const. [the constitutional oath], which all public officers must take before entering upon their duties of office, provides:

                state's strong statutory policy (as well as that of the surviving common law) which disfavors both private- 31 and public-law 32 forfeitures.   Courts will neither search for a construction that will bring about a forfeiture, 33 nor adopt a meaning which would produce that effect, unless the language of the statute or constitutional provision under consideration--giving due respect to its purpose and to extant circumstances--clearly demonstrates the legislature intended that a forfeiture take place. 34
                

All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation:

I, [blank], do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma, and that I will not, knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation allowed by law; I further swear (or affirm) that I will faithfully discharge my duties as [blank] to the best of my ability.

The Legislature may prescribe further oaths or affirmations. [Emphasis supplied.]

The forfeiture clause in Art. XV, § 2, Okl. Const., provides in pertinent part:

"The foregoing oath shall be administered by some person authorized to administer oaths, and in the case of State officers and judges of the Supreme Court, shall be filed in the office of the Secretary of State ... any person refusing to take said oath, or affirmation, shall forfeit his office, and any person who shall have been convicted of having sworn or affirmed falsely, or having violated said oath, or affirmation, shall be guilty of perjury, and shall be disqualified from holding any office of trust or profit within the State...."

This provision unmistakably refers to the constitutional oath in Art. XV, § 1. It targets solely the failure to take that oath. Although Art. XV, § 1, permits the Legislature to prescribe other oaths or affirmations, we cannot infer from the constitution's forfeiture clause that failure to take some statutory oath would similarly result in forfeiture of office. We hence hold that, even if we were to conclude today that the text of the § 2 (51 O.S.) oath does remain viable as a legislatively transformed mandatory supplemental oath, Art. XV, § 2 targets solely an official's failure to take the constitutional oath.

IV.

PUBLIC OFFICIALS ARE NOT REQUIRED TO TAKE THE OATH

PRESCRIBED BY 51 O.S.1961 § 2.

A.

PASSAGE OF THE CONSTITUTIONAL OATH IN 1969 EFFECTED A REPEAL

BY SUBSTITUTION OF THE § 2

OATH IN ITS THEN-EXISTING FORM

According to Petitioner, the Governor is (a) required to take an oath in the form prescribed by § 2, (b) his failure to do so has resulted in forfeiture of office and (c) the Lieutenant Governor has succeeded him. ³⁵

The pre-1969 oath regime consisted of (1) the Art. XV, § 1 oath [the first-generation oath], ³⁶ required of senators, representatives, judicial, state and county officers, and (2) a carbon-copy oath (now found in § 2), enacted in 1910, to be taken by "every state, county, township, city, town, school district, or other officer under the laws of the State, and every deputy or assistant of any such officer." The Legislative history of 51 O.S.1961 § 2 shows that (1) it was cast to be in conformity with the first-generation oath and (2) was passed to eliminate the need to repeat that oath or make reference to it with respect to each public office. ³⁷

A time-honored rule teaches that a revising statute (or, as in this case, a constitutional amendment) takes the place of all the former laws existing upon the subject with which it deals. ³...