Morgan v. Daxon, 96613.

• Citation: 2001 OK 104,49 P.3d 687
• Decision Date: 04 December 2001
• Docket Number: No. 96613.,96613.
• Parties: Representative Fred MORGAN, Minority Floor Leader of the Oklahoma House of Representatives, et al., Petitioners, v. Tom DAXON, Director of State Finance, and Robert Butkin, State Treasurer, Respondents.
• Court: Supreme Court of Oklahoma

49 P.3d 687

2001 OK 104

Representative Fred MORGAN, Minority Floor Leader of the Oklahoma House of Representatives, et al., Petitioners, v. Tom DAXON, Director of State Finance, and Robert Butkin, State Treasurer, Respondents.

No. 96613.

Supreme Court of Oklahoma.

December 4, 2001.

ORDER

¶ 1 Original jurisdiction is assumed. We find that the petitioners have standing to bring the tendered issue. Hendrick v. Walters, 1993 OK 162, ¶ 5, 865 P.2d 1232, 1236-1237. The challenged bill contains more than one subject and is therefore unconstitutional under the provisions of Const. art. V, §§ 56 and 57 of the Constitution of the State of Oklahoma. Campbell v. White, 1993 OK 89, ¶ 20, 856 P.2d 255, 263.

¶ 2 The "Motion to Intervene as Respondent," filed by Stratton Taylor, President Pro Tempore of the Oklahoma State Senate, is granted. The Intervenor's request that the Court continue this case is denied.

¶ 3 Let writ of prohibition issue prohibiting the respondents from releasing any funds to state agencies pursuant to House Bill 1570 as passed by the 48th Oklahoma Legislature.

¶ 4 DONE BY ORDER OF THE SUPREME COURT THIS 4TH DAY OF DECEMBER, 2001.

¶ 5 CONCUR: HARGRAVE, C.J., WATT, V.C.J., HODGES, OPALA (BY SEPARATE WRITING), BOUDREAU, WINCHESTER, JJ.

¶ 6 CONCURS IN PART; DISSENTS IN PART: KAUGER (BY SEPARATE WRITING), J.

¶ 7 DISSENT: LAVENDER, (JOINS SUMMERS, J.), SUMMERS (BY SEPARATE WRITING), JJ.

OPALA, J., concurring.

¶ 1 Neither the polite legal language of the court's formal order nor the texts offered by nonconcurring justices unveil the eclipsed reality of today's controversy. It is a clash of wills unable to reach a compromise—the interaction of an immovable object confronting the irresistible force. Each side seems utterly unwilling to agree with the other on who should bear the political blame for the passage of the infirm legislation and how the quantum of potential disadvantage (likely to flow from the condemned enactment) should be allocated.

¶ 2 The primary focus of today's pronouncement is on the hegemony of the State's constitution. Although the order settles, as it must, the vitiating infirmity present in text of the bill under scrutiny, the court's message is not entirely deaf or oblivious to its additional, equally important role—that of preventing, so far as possible, a consequential destruction of government either by a total shut-down or by partial disruption of its services.

¶ 3 I am confident that at the rehearing stage— both sides will assist us in the task of cushioning the immediate negative fallout from today's sentence of nullity by crafting a sensible solution that will satisfy the warring parties and prevent serious harm to the people they are duty-bound to serve.

¶ 4 The nonconcurring justices' prophecy of gloom and doom offers us a less-than realistic prediction of what is likely to unfold in postdecisional stages. The immediate effect of today's command may be stayed on motion to suspend the writ's present effectiveness. The parties will on rehearing have ample opportunity to guide the court to a reasonably safe remedy by carefully exploring through the arcana of an unforeshadowed change in today's course of constitutional jurisprudence. See Strelecki, et al v. Oklahoma Tax Commission, 1993 OK 122, 872 P.2d 910, 913.

KAUGER, J., concurring in part and dissenting in part:

¶ 1 I agree that: 1) the petitioners, members of the House of Representatives, have standing; 2) HB 1570 violates the single subject rule of the Okla. Const. art. 5, §§ 56 and 57; 3) the President Pro Tempore should be allowed to intervene; and 4) the cause should not be continued.

¶ 2 My concern is that the order automatically sets an instantaneous "drop-dead" date. Ordinarily, the majority of this Court's decisions are not considered final until the twenty-day time frame for filing rehearing has expired or the mandate has issued in the cause.¹ Here, because of the peculiar procedural posture, the twenty-day rehearing period does not stay the effectiveness of the order. Original proceedings are treated differently pursuant to Rule 1.193, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App. 1 which provides in pertinent part:

"In all original proceedings other than those to review a decision of the Workers' Compensation Court or to impose bar discipline, the decision of this Court, unless it is stayed with or without bond, shall become effective when its opinion or order is filed with the clerk. . . ."

¶ 3 The effect of today's order-an original proceeding—is immediate upon its filing with the Court Clerk. Because Rule 1.193 results in these litigants being treating differently from the norm, I would suspend the rule and allow the rehearing process to proceed-providing the parties an opportunity to challenge the order in the rehearing process-an option which does not exist absent the Court's staying the effectiveness of Rule 1.193, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App. 1.

¶ 4 The Legislature continues in special session.² Should the Governor choose to add the questioned funding issues to the legislative agenda,³ the possible disruptions to state payroll or contracting procedures pointed out in the dissent could be minimized or totally eliminated. I would afford this opportunity by staying the effectiveness of the order until rehearing proceedings could take their ordinary course.⁴

¶ 5 Because the respondents, the Director of State Finance and the State Treasurer, are required to withhold payments once the order is filed, irreparable damage may be done in a situation where none need occur. Therefore, I dissent from the majority order only to the extent that it does not provide the usual twenty-day rehearing period.

SUMMERS, J., Dissenting, and joined by LAVENDER, J.

¶ 1 I respectfully dissent from the order of the Court. The Court unnecessarily departs from the precedent established in a long line of its prior opinions, and unnecessarily creates a state constitutional crisis immediately affecting the payrolls and contracts of many state agencies and their employees.

¶ 2 House Bill No. 1570 of the Forty-Eighth Legislature, First Regular Session, referred to in legislative circles as this year's "Reconciliation Bill", contains one-hundred and eleven (111) sections.⁵ On June 8, 2001, the Governor of the State of Oklahoma vetoed two sections of the Bill, sections 38 and 41, stating that legislature failed to make the appropriations referenced in the two sections, and he then signed the Bill. Sections of H.B. No. 1570 have stated effective dates of July 1, 2001 and one section September 1, 2001. The act contains an emergency clause stating an effective date after passage and approval. 2001 Okla.Sess.Laws Ch. 433 §§ 109, 110, 111.⁶ House Bill No. 1570 is in effect at this time.

¶ 3 Today the Court rules that House Bill No. 1570 is unconstitutional. The Bill appropriates or authorizes expenditures for many state agencies and departments, including funds for common education.⁷ Before discussing the Court's order, I shall first point out the exact agencies and funds affected by the one-hundred and eleven (111) sections of H.B. No. 1570:

House Bill No. 1570 makes the following appropriations:

1. $14,610,942.00 — support of public schools. (§ 1 of H.B. No. 1570 amends H.B. No. 1505 and reduces the amount appropriated from $26,586,268.00).

2. $50,000.00 — State Board of Education for Instructional, Cooperative Technological Education. (§ 3).

3. $1,314,000.00 — State Board of Education for a program for teachers on neuro-developmentally based student learning differences.(§ 5).

4. $1,000,000.00 — Oklahoma Center for the Advancement of Science and Technology. (§ 10).

5. $4,914,356.00 — Oklahoma State Regents of Higher Education. (§ 11 amends S.B. No. 239 and reduces the amount appropriated from $28,437,608.00).

6. $500,000.00 — Oklahoma State Regents of Higher Education for the Fred Jones Museum of Art at the University of Oklahoma. (§ 14).

7. $100,000.00 — Oklahoma State Regents of Higher Education for a Native American Language Curator for the Sam Noble Museum of Natural History and Fred Jones Museum of Art at the University of Oklahoma. (§ 15).

8. $213,700.00 — State Board of Education from Education Reform Revolving Fund for financial support of public schools. (§ 20).

9. $206,397.00 — Oklahoma Center for the Advancement of Science and Technology (§ 21).

10. $726,100.00 — Office of State Finance. (§ 22).

11. $250,000 — Office of the Governor. (§ 23).

12. $50,000.00 — Legislative Service Bureau. (§ 24).

13. $69,198.00 — Tax Commission for implementation federal refund offset program. (§ 26).

14. $100,000.00 — Oklahoma Department of Commerce for contractual responsibilities involving Central Oklahoma Economic Development District. (§ 28).

15. $150,000.00 — Oklahoma Department of Commerce for contractual responsibilities involving Eastern Oklahoma Economic Development District. (§ 29).

16. $50,000.00 — Oklahoma Department of Commerce for contractual responsibilities involving Kiamichi Oklahoma Economic Development District. (§ 30).

17. $1,365,751.00 — Oklahoma State Department of Health. (§ 33 amends H.B. No. 1518 and reduces appropriation from $1,430,751.00).

18. $179,000.00 — Department of Mental Health and Substance Abuse Services. (§ 42).

19. $980,000 — Department of Mental Health and Substance Abuse Services. (§ 43 amends H.B. No. 1564 and changes language relating to the purpose of the appropriation).

20. $40,000.00 — Department of Mental Health and Substance Abuse Services for specified contractual services. (§ 48).

21. $340,278,606 — Oklahoma Health Care Authority. (§ 53 amends H.B. No. 1564 and increases the amount appropriated from $339,078,606.00).

22. $12,297,305.00 — Oklahoma Health Care Authority. (§ 54 amends H.B. No. 1564 and decreases the amount appropriated from $17,297,305.00).

23. $9,700,000.00 — University Hospitals Authority. (§ 58 amends H.B. No.

...