IN RE OKLAHOMA DEPT. OF TRANSP.

• Decision Date: 24 September 2002
• Docket Number: No. 97,419.,97,419.
• Citation: 64 P.3d 546,2002 OK 74
• Parties: In the Matter of the Application of the OKLAHOMA DEPARTMENT OF TRANSPORTATION FOR APPROVAL OF NOT TO EXCEED $100 MILLION OKLAHOMA DEPARTMENT OF TRANSPORTATION GRANT ANTICIPATION NOTES, SERIES 2002.
• Court: Oklahoma Supreme Court

64 P.3d 546

2002 OK 74

In the Matter of the Application of the OKLAHOMA DEPARTMENT OF TRANSPORTATION FOR APPROVAL OF NOT TO EXCEED $100 MILLION OKLAHOMA DEPARTMENT OF TRANSPORTATION GRANT ANTICIPATION NOTES, SERIES 2002.

No. 97,419.

Supreme Court of Oklahoma.

September 24, 2002.

As Corrected December 11, 2002.

Rehearing Denied December 10, 2002.

Thomas G. Hilborne, Jr., Tulsa, Gary M. Bush, Douglas F. Price, Assistant Attorney General, and Norman N. Hill, General Counsel, Oklahoma Department of Transportation, Oklahoma City, OK, for Oklahoma Department of Transportation, Applicant.

Jerry R. Fent, Oklahoma City, OK, pro se Respondent. BOUDREAU, Justice:

¶ 1 The Oklahoma Department of Transportation (ODOT) seeks pre-issuance approval of Grant Anticipation Notes, Series 2002, in an amount not to exceed One Hundred Million Dollars. The notes are a funding source for an ambitious highway improvement and expansion plan adopted by the Legislature in 1997 and amended in 2000. 69 O.S. Supp.1997 and 2000, §§ 2001 et. seq.¹ The ODOT is authorized to issue the notes in 69 O.S.2001, § 2001(E)(2).²

¶ 2 Title 20 O.S.2001, § 14.2 confers exclusive, original jurisdiction upon this Court to hear and determine ODOT's application to approve the obligations to be issued. The statute requires this Court to determine if the obligations have been properly authorized in accordance with law and that, when issued, they will constitute valid obligations in accordance with their terms. Therefore, the repeal became effective ninety days after the Legislature adjourned sine die on may 23, 2002. Okla.Const., art. 5, §§ 58.³

I. Background

¶ 3 On February 1, 2002, the voting members of the Contingency Review Board (CRB), the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives,⁴ unanimously approved the Pro Tempore's motion to approve the issuance of grant anticipation notes by the ODOT. The authorization language in § 2001(E)(2), supra., requires the CRB's unanimous approval before issuance of the grant anticipation notes.⁵ ¶ 4 On February 4, 2002, the Transportation Commission authorized ODOT to issue grant anticipation notes in an amount not to exceed One Hundred Million Dollars.⁶ The Transportation Commission is the governing and policymaking body for ODOT.⁷ The Transportation Commission resolved that the proposed obligations would be paid with anticipated federal highway funds.⁸

¶ 5 On February 28, 2002, both the Executive Bond Oversight Commission (EBOC) and the Legislative Bond Oversight Commission (LBOC) unanimously approved ODOT's proposal to issue the grant anticipation notes, subject to specified conditions being satisfied prior to issuance. Under the Oklahoma Bond Oversight and Reform Act, 62 O.S. 2001, §§ 695.1 et seq., the proposed grant anticipation notes must be approved by both the EBOC and the LBOC.⁹

¶ 6 On March 6, 2002, ODOT filed an application with this Court seeking a determination that the proposed obligations, Oklahoma Department of Transportation Grant Anticipation Notes, Series 2002, have been authorized in accordance with law and, if issued, are valid. Jerry Fent, a citizen and resident taxpayer and voter of the State of Oklahoma, timely filed his protest to ODOT's application.

¶ 7 Fent contends that the statutory scheme for authorizing the issuance of the proposed obligations is constitutionally flawed. He argues that the statutorily-required approval of the proposed obligations by either the CRB or the LBOC violates the state constitutional separation of powers provision. Fent also urges that the legislators sitting on the CRB and the LBOC are serving in the executive as well as legislative departments of government and are in violation of the prohibition against holding dual state offices.¹⁰ Fent requests this Court to deny pre-issuance approval of the notes.

II. Separation of Powers

¶ 8 The Oklahoma Constitution recognizes three separate departments of government and demands each of those branches remain separate and distinct. The Oklahoma Constitution, art. 4, § 1, states:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

This separation of powers provision mandates that each department of the government shall be kept independent in the sense that the acts of each shall never be controlled by or subjected, directly or indirectly, to the coercive influences of either of the other departments. York v. Turpen, 1984 OK 26, ¶ 9, 681 P.2d 763, 767.

¶ 9 Historically, Oklahoma analyzed separation of powers issues by formalisticly classifying the governmental function as either legislative, executive or judicial in nature and assigning plenary control accordingly. In Tweedy v. State, ex rel. Oklahoma Bar Ass'n, 1981 OK 12, ¶¶ 9-11, 624 P.2d 1049, 1054, the Court distinguished executive and legislative duties:

¶ 9 Legislative, as distinguished from executive, power is the authority to make law, but not to execute it or to appoint agents charged with the duty of enforcement. The latter is purely an executive function.

¶ 11 While as a legislator in the arena of bar ethics, this Court can and does fashion, by rules, the necessary prosecutorial machinery, it cannot itself exercise enforcement powers for, or on behalf of, the instrumentality it has created.

Similarly, City of Sand Springs v. Dept. of Public Welfare, 1980 OK 36, ¶ 12, 608 P.2d 1139, 1146, said:

¶ 12 This Court has committed itself to the proposition that the essence of the legislative function is the determination of policy; indeed, the dichotomy between administrative acts and legislative acts hinges upon the declaration of policy, which is a legislative function, and the implementation of that policy, which is traditionally an administrative function.

¶ 10 However, the Court has also recognized that there can be blending of the three powers of government and that it is not always possible to contain the three branches of government into "water tight compartments". See Bailey v. State Bd. of Public Affairs, 1944 OK 301, 194 Okla. 495, 153 P.2d 235, 239 (quoting Springer v. Govt. of the Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928)). This blending of powers is especially prevalent in the area of administrative law where administrative agencies and officials, in exercising the powers delegated to them, typically exercise all three types of powers and are responsive to some degree of control by each of the constitutional departments. Burgeoning administrative bureaucracies, both state and federal, now make it more difficult to neatly classify the function and make the application of the formalistic approach to separation of powers issues more problematic. See John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 Temple L.Rev. 1205 (1993).

¶ 11 A more practical and potentially fruitful approach to separation of powers issues was set out by the Kansas Supreme Court in Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976). In Bennett, the Kansas court considered a constitutional challenge based on separation of powers to statutory powers vested in a state finance council comprised of the governor and eight members of the legislature. In an opinion holding some of the statutory powers vested in the council as constitutional and others as unconstitutional, the Kansas court stressed that the separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created by statute.

¶ 12 Rather than focusing exclusively on how a function might be conceptually classified, the Bennett court considered specific facts of the case to determine whether a challenged arrangement constituted a "usurpation by one department of the powers of another department". Id. at 792. Bennett held that such a usurpation occurs when one department is being "subjected directly or indirectly to the coercive influences of" another, and when there is "a significant interference by one department with the operations of another department." Id. at 792. If such a usurpation by one department of the powers of another occurs, it marks a breach in the separation of power between distinct branches of government.

¶ 13 The Bennett court considered a non-exclusive set of four criteria in deciding separation of powers issues. The first criterium required the court to consider the "essential nature of the power being exercised. Is the power exclusively executive or legislative or is it a blend of the two?" Id. The second criterium asked what degree of control is the legislature trying to exercise. Is the influence coercive or cooperative? Id. The third criterium sought to discover the legislature's objective. "Is the intent of the legislature to cooperate with the executive by furnishing some special expertise of one or more of its members or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?" Id. The fourth criterium asked what is the "practical result of the blending of powers as shown by actual experience over a period of time where such evidence is available." Id. The Bennett court acknowledged that other factors may prove relevant in different cases and encouraged consideration of specific facts which may show that a usurpation of power has occurred. Id. at 792-93.

III. The Legislative Bond Oversight Commission

¶ 14 In 1987, our Legislature determined there was a need to reform current procedures...