Johnson v. Walters

• Decision Date: 29 October 1991
• Docket Number: No. 77919,77919
• Citation: 1991 OK 107,819 P.2d 694
• Parties: Glen D. JOHNSON, Speaker of the House of Representatives, and Robert V. Cullison, President Pro Tempore of the Senate, Petitioners, v. David WALTERS, Governor et al., Respondents.
• Court: Oklahoma Supreme Court

Page 694

819 P.2d 694

1991 OK 107

Glen D. JOHNSON, Speaker of the House of Representatives and Robert V. Cullison, President Pro Tempore of the Senate, Petitioners, v. David WALTERS, Governor et al., Respondents.

No. 77919.

Supreme Court of Oklahoma.

Oct. 29, 1991.

Application to Assume Original Jurisdiction and Petition for Writ of Prohibition.

Application to assume original jurisdiction and petition for writ of prohibition to prevent implementation of general legislation provisions claimed to be ineffectual based on Governor's partial approval of two bills.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF PROHIBITION GRANTED.

Jones, Givens, Gotcher & Bogan by Graydon Dean Luthey, Jr., Tulsa, Scott Emerson, Chief Counsel, Oklahoma House of Representatives, Mark Ramsey, Counsel, Oklahoma Senate, Oklahoma City, for petitioners.

Susan Brimer Loving, Atty. Gen. by Neal Leader, Asst. Atty. Gen., Oklahoma City, for respondents.

Lindil C. Fowler, Jr., and Lu Willis, Oklahoma Corp. Com'n, Oklahoma City, for respondent Oklahoma Corp. Com'n.

Charles Nesbitt, Cabinet Secretary of Energy, State of Okl., Michael L. Harris, Deputy Secretary of Energy, Oklahoma City, for amicus curiae Charles Nesbitt.

Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks by Gene Stipe, Oklahoma City, for amicus curiae Kiamichi Development Authority.

HODGES, Vice Chief Justice.

On the last day of the 1991 regular session of the Oklahoma Legislature, the House of Representatives and the Senate passed enrolled House Bill 1743 (H.B. 1743) and presented it to Governor David Walters. The first two sections of the bill empowered the Legislature to allocate space in the State Capitol Building and relocate various officials. The bill's third section authorized the sale of surplus water from Sardis Reservoir.

The Governor claimed the bill embraced two separate subjects in violation of the constitutional prohibition against multiple subjects in general legislation (non-appropriation) bills. Rather than vetoing all of the bill, the Governor treated each subject as a separate bill and approved only the third section dealing with Sardis Reservoir.

Also, on the last day of the session, the House and Senate passed enrolled House Bill 1271 (H.B. 1271). That bill was a budget reconciliation measure with a seven-page title and 157 sections requiring over 80 pages of text.

Claiming that this bill embraced general legislation provisions covering multiple subjects, along with appropriations, the Governor vetoed several general legislation sections. These vetoed provisions included sales tax exemptions, restrictions on the use of private prisons, and limits on the personnel powers of the Oklahoma Corporation Commission. In addition, several appropriation sections were vetoed.

In this original proceeding, the Speaker of the House of Representatives and the President Pro Tempore of the Senate (the Legislature) claim the Governor's partial veto of the two bills was beyond his constitutional authority. A writ of prohibition to respondent agencies, boards, commissions, and officers is sought to prevent implementation of all general legislation provisions of both bills. The Attorney General's office and the Oklahoma Corporation Commission have filed response briefs. Amicus curiae briefs have been filed by the Governor's Secretary of Energy and the Kiamichi Development Authority. The Legislature has responded to the amicus curiae brief of the Secretary of Energy.

At issue, is the scope of the Governor's constitutionally conferred veto power. Because this is a matter of great public concern, jurisdiction is assumed. See Phillips v. Oklahoma Tax Comm'n, 577 P.2d 1278 (Okla.1978).

THE GOVERNOR'S VETO POWERS

The Governor's veto powers are described in sections 11 and 12 of article VI of the Oklahoma Constitution. ¹ These sections were construed in State ex rel. Wiseman v. Oklahoma Board of Corrections, 614 P.2d 551 (Okla.1978).

Wiseman held that section 11 applies to general legislation bills and bills containing only one item of appropriation. Id. at 555. The Governor must approve or disapprove these bills in toto. See id. Any attempt to qualify the approval is null and the bill does not become law. It is as if the Governor had exercised a "pocket veto."

Wiseman further held that section 12 operates as an exception to section 11 for bills "making appropriations of money embracing distinct items." Id. at 556 (quoting section 12). Section 12 grants the Governor the power to line item veto any distinct item of appropriation, provided the item is rejected in toto. Id. at 555-56.

The problem addressed in Wiseman was which section applied when the Governor was presented a bill containing both general legislative provisions and appropriations of money embracing distinct items. There, the Governor attempted to exercise a subject veto over a general legislation provision.

The Wiseman Court held that section 11 applied to the general legislation provisions of the bill and section 12 applied to the provisions making appropriations of money In this dispute, the Legislature has petitioned arguing that the Governor's line item veto power extends only to appropriations and not to general legislation provisions. By way of defense, the respondent Governor claims the bills violated the one-subject requirement found in sections 56 and 57 of article V of the Oklahoma Constitution. ² He asserts that he should, therefore, be able to divide each bill into separate subjects for him to approve or to veto.

embracing distinct items. The result was that all the general legislative provisions failed to become law for lack of gubernatorial approval. The appropriation provisions, however, did not need specific approval from the Governor and became law. Id. at 556-57.

The Governor urges this dispute presents an issue of first impression because the Wiseman Court did not address "whether there was a connection between the one-subject provision ... and the Governor's veto powers." However, a review of the decision and the briefs of the parties in Wiseman reveals that a one-subject violation argument was raised. The decision notes that following the application of sections 11 and 12, no issue of one-subject compliance remained because only the appropriation provisions were enacted into law. 614 P.2d at 557. Thus, the Wiseman Court impliedly rejected the approach of applying the one-subject rule before addressing the Governor's veto powers under sections 11 and 12 of article VI. Today, however, Wiseman's continued viability must be reassessed in light of the Legislature's flagrant violations of the one-subject rule along with the purposes and history of that rule.

While sections 11 and 12 of article VI limit the Governor's veto power, the one-subject rule limits the Legislature's ability to circumvent that power. "The purpose of the constitutional requirement that but a single subject be included in a legislative bill is to make impossible by log-rolling devices the enactment of unpopular legislation by including it with popular legislation on an entirely different subject." Bond v. Phelps, 200 Okla. 70, 82, 191 P.2d 938, 950 (1948). In addition to the prevention of such omnibus legislation, the rule is also aimed at the undesirable legislative practice of attaching a rider to a bill in order to "veto-proof" the measure. It was intended to "prevent matters foreign to the main objects of a bill from finding their way into such enactment surreptitiously." In re County Comm'rs, 22 Okla. 435, 438, 98 P. 557, 558 (1908).

These objectionable legislative practices are not new and are not unique to Oklahoma. By the end of the nineteenth century, the one-subject rule had become widely accepted. See note, Enforcing the One-Subject rule: The Case for a Subject Veto, 38 Hastings L.J. 563, 565 (1987). Most states presently have some form of the rule in their constitution. During the same time, the gubernatorial veto power also gained wide acceptance as a limitation on legislative power. Id. at 569.

In theory, the one-subject rule should deter log rolling and other veto-proofing Even a cursory examination of the bills reveals that they combine general legislation provisions which bear no relationship to each other. For example, H.B. 1271 includes the unrelated topics of state employee benefits, coal-fired electric generating plants, the indigent defense system, state travel reimbursement, and officer verification of traffic citations. Such a blatant violation of the one-subject rule cannot be justified by petitioners' assertion that each provision relates to "state government."

attempts. In practice, however, these constitutional violations continue to circumvent the governor's veto power, as demonstrated by the two bills examined here.

Wiseman refused to recognize the constitutional limits placed on the Legislature by the one-subject rule before addressing the Governor's veto powers. Constitutional compliance, however, is required not only from the Governor but from the Legislature as well. The shortcoming of the Wiseman approach was that it did not adequately remedy the Legislature's continuing practices of log rolling and other attempts at veto-proofing bills. A new approach is required.

The approach suggested by the Governor would allow him to treat each subject in a multi-subject bill as a separate enactment. However, no provision in the Oklahoma Constitution grants that power. Thus, the Governor's attempt at a partial veto in this matter exceeded his constitutional authority. His suggested approach must therefore be rejected.

Under section 57 of article V, general legislation bills and special appropriation bills are limited to one subject. Section 56 requires a general appropriation bill to embrace nothing but appropriations. These rules limit legislative power and obviously were intended to bind the Legislature. However, it must also be understood...