Keating v. Johnson
| Decision Date | 14 May 1996 |
| Docket Number | No. 86628,86628 |
| Citation | 1996 OK 61,918 P.2D 51 |
| Parties | Frank KEATING, Governor of Oklahoma; Fred Morgan, State Representative; and Chris Hastings, State Representative, Petitioners, v. Glen D. JOHNSON, Speaker of the Oklahoma House of Representatives; Stratton Taylor, President Pro Tempore of the Oklahoma Senate; Terry Tyree, in his capacity as Acting Commissioner of the State Insurance Fund; Carlisle Mabrey, III; H.E. Rainbolt; Phil Tholen; Mike Nobles; Senator Ted Fisher; Senator Kevin Easley; Senator Larry Dickerson; Representative Don McCorkell; Representative James E. Hamilton; Representative Bill Settle; Bob Hollander, in his capacity as Executive Director of the Oklahoma Firefighters Pension and Retirement Board; Meridith Lacey; and Gene Torbett, Respondents. |
| Court | Oklahoma Supreme Court |
Joe Heaton, Fuller, Tubb & Pomeroy, Special Counsel to the Governor, Oklahoma City, Fred Morgan, Reynolds, Ridings, Vogt & Morgan, Oklahoma City, and Chris Hastings, Tulsa, pro se and Co-Counsel to the Governor, Duchess Bartmess, General Counsel to the Governor, Oklahoma City, for Petitioners.
Susan B. Loving, Oklahoma City, and Lee Slater, Oklahoma City, for Respondents Speaker Glen D. Johnson, President Pro Tempore Stratton Taylor, Senators Ted Fisher, Kevin Easley and Larry Dickerson
and Representatives Don McCorkell, James E. Hamilton and Bill Settle.
Scott C. Emerson, Chief Counsel, Oklahoma House of Representatives, for Respondent Speaker Glen D. Johnson.
Mark H. Ramsey, Senior Staff Attorney, Oklahoma Senate, for Respondents President pro tempore Stratton Taylor and Speaker Glen D. Johnson.
Stephen G. Solomon, Gladys E. Cherry, Derryberry, Quigley, Solomon, Blankenship & Naifeh, Oklahoma City, and Elizabeth Bradford, General Counsel, Oklahoma City, for Respondents Terry Tyree, Carlisle Mabrey, III, H.E. Rainbolt, Phil Tholen and Mike Nobles.
Marc Edwards, A.P. Murrah, Jr., Phillips McFall McCaffrey McVay & Murrah, Oklahoma City, for Respondents Bob Hollander, Meridith Lacey and Gene Torbett.
John Morris Williams, Oklahoma City, for amicus curiae Oklahoma Education Association.
Richard A. Mildren, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, for amicus curiae Oklahoma Public Employees Association and Oklahoma Firefighters Association.
Petitioners, the Governor of the State of Oklahoma and two State House of Representative members have filed an application with this Court to assume original jurisdiction requesting declaratory or other relief determining that the Oklahoma Legislature violates the separation of powers doctrine contained in the Oklahoma Constitution [OKLA.CONST. art. 4, § 1] when it, by statutory enactment, vests in itself or legislative leadership the authority to make appointments to executive branch boards and commissions whose function is the execution and administration of the law. 1 Unconstitutionality is also claimed when the Legislature, by statute, delegates to any of its own members either the power to exercise executive functions or the power to exercise legislative, policy-making powers on behalf of the Legislature as a whole. Sued as respondents are the Speaker of the Oklahoma House of Representatives; the President Pro Tempore of the Oklahoma Senate; three other State Representatives and three other Senators who are members of the Legislative Bond Oversight Commission (LBOC); the Acting Commissioner of the State Insurance Fund; four members of the Board of Managers of the State Insurance Fund (BMSIF) (two appointed by the Speaker and two by the President Pro Tempore); the Executive Director of the Oklahoma Firefighters Pension and Retirement System; and two members of the Oklahoma Firefighters Pension and Retirement Board (OFPRB), one appointed by the Speaker and one by the President Pro Tempore. We decline to assume original jurisdiction for the reasons set forth below.
Petitioners attack as unconstitutional four statutes or statutory schemes in this proceeding. They claim 85 O.S.1991, § 131a is unconstitutional to the extent it provides for appointment of members to the BMSIF by the Speaker and President Pro Tempore. 11 O.S.Supp.1995, § 49-100.3 is claimed unconstitutional insofar as it provides for appointment of members to the OFPRB by the Speaker and President Pro Tempore. Next, the Oklahoma Bond Oversight and Reform Act, 62 O.S.1991, § 695.1 et seq., as amended, is claimed unconstitutional to the extent it provides for the LBOC, currently made up of six legislators as members, to engage in the performance of executive functions, rather than legislative. 2 Alternatively, petitioners In addition to a declaration of constitutional invalidity, petitioners request a further declaration, if allowed by applicable constitutional principles and prior decisions of this Court, that by reason of the de facto status of the various officers who are claimed to have been unconstitutionally appointed, all prior actions taken by the officers or their respective board, council or commission are valid and binding against constitutional infirmities alleged in this proceeding, notwithstanding such infirmities. Finally, petitioners request, again if allowed by applicable constitutional principles and prior decisions of this Court, that we make any decision of unconstitutionality effective at a future date certain or, withhold issuance of any writ or appropriate order until a date certain to give the Legislature and Governor sufficient time to cure the claimed unconstitutional defects in the challenged legislation.
claim that if any of the LBOC's powers are determined to be legislative in nature, rather than executive, the LBOC would still be unconstitutional--the invalidity consisting of an improper delegation of legislative power of the whole Legislature to that six person commission. Finally, 62 O.S.1991, § 695.11A, is claimed violative of the separation of powers doctrine in providing for appointment of members to the Council of Bond Oversight (CBO) (a Council that would come into being in the event either the LBOC or its counterpart, the Executive Bond Oversight Commission, are found unconstitutional) by the Speaker and President Pro Tempore, when the CBO wields executive power. It should be noted that petitioners cite to Attorney General Opinion No. 90-31, which generally is favorable to the position of petitioners espoused herein, but the Legislature has apparently ignored this opinion of the Attorney General.
The Governor claims standing to bring this matter on the basis he is the Chief Magistrate and chief executive officer of Oklahoma [OKLA.CONST. art. 6, §§ 1 and 2], and, as such, he has a judicially cognizable interest in protecting the prerogatives and functions of the Executive Department of State government and insuring that another Department of State government does not unlawfully assume or exercise powers properly committed to another Department. 3 Further, although the Governor does not presently claim he is imbued with any inherent authority to make the appointments to the boards, etc. at issue in this proceeding either under the Oklahoma Constitution or otherwise, he claims that his role in the appointment process under OKLA.CONST. art. 6, § 13 also provides a basis for his standing here. 4 As to this latter position, the Governor appeared to claim at oral argument in this matter that because art. 6, § 13 gives him certain appointment authority when an office becomes vacant, upon a determination that the statutes granting the legislative appointments at issue here are held to be unconstitutional and legislative failure to pass curative legislation passing constitutional muster, he might himself become The two House member petitioners claim standing based on a judicially cognizable interest in the proper allocation of powers between the Executive and Legislative Departments and, alternatively, a dilution or impairment of their legislative vote as House members by the claimed improper delegation of legislative authority to the LBOC. We assume, without deciding, that both the Governor and the two legislators have standing to bring this proceeding.
imbued with the appointment authority. However, as noted, the Governor does not currently claim any appointment authority and he appears to admit that constitutionally adequate curative legislation might be passed consistent with art. 6, § 13 that would place the appointment power in others.
Petitioners, to support their position that we exercise our discretion to grant original jurisdiction, rely on the doctrine of publici juris in that this matter is imbued with great public importance involving a question of statewide concern relating to the respective powers of the Executive and Legislative Branches of government. The claim is that this public law controversy raises issues going to the fundamental structure of government in Oklahoma. Although the former basis is primarily relied upon, it is also claimed we should assume original jurisdiction based upon our superintending control over agencies, commissions and boards granted to this Court in OKLA.CONST. art 7, § 4. Petitioners also appear to argue that because the matter will eventually end up in this Court in an appeal from a district court determination in any event, and we at that time will have to review the legal questions under a de novo standard of review, original jurisdiction should be assumed now, and that declining to do so will accomplish nothing, other than causing a delay of a final decision and expense to the parties.
Other than as to how these bases might intrinsically intertwine with the issue, petitioners make no real attempt to convince us there is some urgent situation involved in this matter that would call for this Court's immediate attention or that would require a speedy determination of the case. In fact, the present posture of the case as delivered to us by petitioners, particularly in light of their own...
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