Keating v. Edmondson

• Decision Date: 04 December 2001
• Docket Number: No. 95,687.,95,687.
• Citation: 37 P.3d 882,2001 OK 110
• Parties: Frank KEATING, Governor of the State of Oklahoma, Plaintiff/Appellant, v. Drew EDMONDSON, Attorney General of the State of Oklahoma, Defendant/Appellee.
• Court: Oklahoma Supreme Court

37 P.3d 882

2001 OK 110

Frank KEATING, Governor of the State of Oklahoma, Plaintiff/Appellant, v. Drew EDMONDSON, Attorney General of the State of Oklahoma, Defendant/Appellee.

No. 95,687.

Supreme Court of Oklahoma.

December 4, 2001.

Mike Hunter, Judy Terry, Oklahoma City, OK, for Plaintiff/Appellant.

Andrew Tevington, Assistant Attorney General, Oklahoma City, OK, for Defendant/Appellee.

Lee Slater, Oklahoma City, OK, For Amicus Curiae.

KAUGER, J.

¶ 1 The first impression issue presented is whether 74 O.S.1991 § 10.3 (A)¹ prohibits a Governor's alteration of the executive's cabinet system established within the forty-five day time frame provided by the statute. We determine that it does.²

FACTS

¶ 2 On May 26, 2000, the plaintiff/appellant, Frank Keating, Governor of the State of Oklahoma (Governor), issued Executive Order No.2000-11 abolishing the cabinet area of Commerce and creating the cabinet area of Economic Development and Special Affairs. On the same day, the Governor appointed Russell Perry (Perry) to serve in the newly created cabinet seat. Perry had earlier been appointed to serve as the acting or interim Secretary of Commerce.³ However, his nomination was deemed rejected when the second session of the Forty-seventh Oklahoma Legislature adjourned without considering his nomination.⁴

¶ 3 Senator Angela Monson submitted a request for an official opinion to the defendant/appellee, Drew Edmondson, Attorney General of the State of Oklahoma (Attorney General), on June 8, 2000, concerning the Governor's authority to make changes in his cabinet.⁵ Pursuant to statutorily imposed duties,⁶ the Attorney General issued an official opinion on October 26, 2000,⁷ providing in pertinent part at ¶ 30:

". . . 1. The governor may not modify the executive Cabinet after the forty-five-day period established at the beginning of his or her term for the creation of the Cabinet. See [sic] 74 O.S.1991, [sic] § 10.3. The power to modify the Cabinet after this time rests with the Legislature. . . .

8. When the Governor attempts to create a Cabinet post outside the legislative process more than forty-five days after the Governor's term begins, the post does not exist; therefore, anyone the Governor attempts to appoint to that post is not a Cabinet secretary. Instead, the person the Governor attempted to appoint would be an employee of the Governor's office if the Governor and the person he tried to appoint had an agreement that the failed appointee would work for pay. . . ."

¶ 4 Recognizing the duty to follow the Attorney General's opinion until overturned by a court of competent jurisdiction,⁸ the Governor filed a petition for declaratory relief⁹ and stay of effectiveness of the opinion challenging the cited portions of the opinion on October 27, 2000. After hearing oral argument and considering the briefs of the parties and of the amicus curiae, Stratton Taylor, President Pro Tempore of the Oklahoma Senate (President Pro Tempore), the trial judge found the Attorney General's opinion to be a correct statement of the law set forth in 74 O.S.1991 § 10.3. On December 5, 2000, judgment was entered in the Attorney General's favor and a stay pending appeal was granted. On December 29, 2000, the Governor appealed a single issue — whether a Governor is empowered under 74 O.S. 10.3 (A) to reorganize the executive cabinet throughout the term of office.¹⁰ We retained the cause on April 27, 2001. The briefing cycle was completed on August 31, 2001.

¶ 5 THE CLEAR, EXPLICIT, MANDATORY AND UNMISTAKABLE LANGUAGE OF 74 O.S.1991 § 10.3 (A) PROHIBITS A GOVERNOR, HAVING ESTABLISHED AN EXECUTIVE CABINET WITHIN THE FORTY-FIVE DAY TIME FRAME ESTABLISHED BY THE STATUTE, FROM ALTERING THE CABINET SYSTEM.

¶ 6 The Governor asserts that 74 O.S. 1991 § 10.3 (A)¹¹ should be construed to permit gubernatorial reorganization throughout a term of office as changing times and circumstances warrant. He argues that the forty-five day time limitation contained in the statute is merely the period within which the initial cabinet must be formed. The Attorney General contends that the plain language of § 10.3(A): 1) requires the creation of an executive cabinet within forty-five days of the Governor's taking office; and 2) the cabinet so created cannot be altered absent legislative intervention.¹² We agree.

¶ 7 Title 74 O.S.1991 § 10.3 (A) provides:

"Within forty-five (45) days of assuming office, each Governor shall create a cabinet system for the executive branch of state government. Said cabinet system shall be an organizational framework created by executive order which includes all executive agencies, boards, commissions, or institutions and their assignments to specific cabinet areas. The cabinet system shall consist of no fewer than ten or more than fifteen cabinet areas and each cabinet area shall consist of executive agencies, boards, commissions, or institutions with similar programmatic or administrative objectives; provided, one cabinet area shall consist of the Oklahoma Department of Veterans Affairs, its institutions and other executive agencies, boards, commissions and institutions which are related to veterans. The Governor's cabinet shall be in effect until the Legislature supersedes each cabinet area by providing by law for specific cabinet areas or departments, or removes by law the authority of the Governor to create a cabinet area." [Emphasis suppled.]

¶ 8 In determining whether a statute applies to a given set of facts, we focus on legislative intent¹³ which controls statutory interpretation.¹⁴ Intent is ascertained from the whole act in light of its general purpose and objective¹⁵ considering relevant provisions together to give full force and effect to each.¹⁶ The Court presumes that the Legislature expressed its intent and that it intended what it expressed.¹⁷ Statutes are interpreted to attain that purpose and end¹⁸ championing the broad public policy purposes underlying them.¹⁹ Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.²⁰

¶ 9 While acknowledging the legislative authority to alter the executive's cabinet,²¹ the Governor argues that 74 O.S.1991 § 10.3 (A) contains no express limitation on his reorganization authority. He asserts that the statute is ambiguous for what it does not say — it does not expressly provide that the Governor may not alter or amend the cabinet system initially established. The Governor contends that the gubernatorial cabinet, however designed or altered during the chief executive's term, will be in effect under the statute unless expressly superseded by the Legislature. ¶ 10 The Governor finds support in Ethics Comm'n v. Keating, 1998 OK 36, ¶ 18, 958 P.2d 1250 and in Cox v. Dawson, 1996 OK 11, ¶¶ 6 and 7, 911 P.2d 272. Both causes are distinguishable on their facts. In Keating, we were asked to determine whether an Ethics Commission's rule prohibiting the use of public property for partisan political fundraisers prohibited the Department of Public Safety from providing the Governor with transportation to partisan political fundraising events. We determined that the ethics rule did not control based, in part, on the fact that the statute establishing authority for the Governor's state-provided transportation contained no such express limitation. Unlike the statutory scheme at issue in Keating, 74 O.S.1991 § 10.3 (A) specifically requires the Governor to appoint a cabinet and provides for the action necessary for its alteration — legislative intervention. The statute provides that the cabinet system "shall be in effect" until the Legislature supersedes cabinet areas by law or removes the Governor's authority to create a cabinet area.

¶ 11 Cox involved the appropriate interpretation of 45 O.S. Supp.1995 § 1²² — the statute relating to appointments to the Oklahoma Mining Commission. In construing the statutory scheme in Cox, we determined that the statute was ambiguous for what it did not contain-the statute did not expressly delineate the term of office for Commissioners appointed subsequent to October 1, 1986.

¶ 12 Cox involved a lacuna — a gap in the law.²³ No such void exists here. Rather, 74 O.S.1991 § 10.3 (A) authorizes the creation of an executive cabinet and in clear and mandatory language²⁴ sets out the rules for its formation and its alteration. The statute provides that: 1) the Governor "shall" create a cabinet system within forty-five days of assuming office; 2) the cabinet "shall" be an organizational framework including all executive agencies, boards, commissions or institutions; 3) the cabinet "shall" consist of no less than ten and no more than fifteen cabinet areas-each of which "shall" consist of executive agencies, boards, commissions, or institutions with similar programmatic or administrative objectives; 4) one cabinet area "shall" consist of the Oklahoma Department of Veterans Affairs, its institutions and related agencies, boards, commissions and institutions; and 5) the cabinet "shall" be in effect until the Legislature alters the cabinet structure by law or removes the Governor's authority to create a cabinet area. Section 10.3(A) provides for the creation of the executive cabinet and at the same time mandates that the cabinet shall be in effect until the Legislature intervenes — either by passing laws altering the cabinet's structure or by removing the Governor's authority to create a cabinet position.

¶ 13 Generally, when the Legislature uses the term "shall", it signifies a mandatory directive or command.²⁵ Although "shall" can be used permissively,²⁶ in drafting 74 O.S.1991 § 10.3 (A), the Legislature used the directory term a total of six times in the four-sentence provision. Clearly, the Legislature intended to impose restrictions on the state's executive in the formation of a cabinet system. To achieve that end, the legislative body used...