Prescott v. Okla. Capitol Pres. Comm'n

Decision Date27 July 2015
Docket NumberNo. 113,332.,113,332.
Parties Dr. Bruce PRESCOTT, James Huff, Donald Chabot, and Cheryl Franklin, Plaintiffs–Appellants, v. OKLAHOMA CAPITOL PRESERVATION COMMISSION, Defendant–Appellee.
CourtOklahoma Supreme Court

Ryan Kiesel, Brady Henderson, ACLU of Oklahoma Foundation, Oklahoma City, OK, Attorney for PlaintiffsAppellants.

E. Scott Pruitt, Patrick Wyrick, Cara N. Rodriguez, Office of the Oklahoma Attorney General, Oklahoma City, OK, Attorney for DefendantAppellee.

Hiram Sasser, Liberty Institute, Plano, TX, Attorney for DefendantAppellee.

Paul D. Clement, George W. Hicks, Jr., Taylor A.R. Meehan, Bancroft PLLC, Washington, DC, Attorneys for Amicus Curiae Mark E. DeForrest.

Mark D. Spencer, McAfee & Taft, Oklahoma City, OK, Attorney for Amicus Curiae Mark E. DeForrest.

PER CURIAM.

¶ 1 Oklahoma citizens Bruce Prescott, James Huff, and Cheryl Franklin (complainants) seek removal of a Ten Commandments monument from the Oklahoma Capitol grounds. The monument was a gift from another Oklahoma citizen and was placed on the Capitol grounds pursuant to a Legislative act that was signed by the Governor. While conceding that no public funds were expended to acquire the monument, complainants nonetheless maintain its placement on the Capitol grounds constitutes the use of public property for the benefit of a system of religion. Such governmental action is forbidden by Article 2, Section 5 of the Oklahoma Constitution.

¶ 2 The trial court ruled that the monument did not violate Article 2, Section 5 and entered a summary judgment denying complainants' request for an injunction. This Court reviews de novo the constitutional issue and the legal question resolved by the summary judgment. Sw. Bell Tel. Co. v. Okla. State Bd. of Equalization, 2009 OK 72, ¶ 10, 231 P.3d 638, 641. Upon de novo review, the trial court's ruling is reversed.

¶ 3 In deciding whether the State's display of the monument in question violates Article 2, Section 5, the intent of this provision must be ascertained. Draper v. State, 1980 OK 117, ¶ 8, 621 P.2d 1142, 1145. Such intent is first sought in the text of the provision. Id. Words of a constitutional provision must be given their plain, natural and ordinary meaning. Lepak v. McClain, 1992 OK 166, ¶ 7, 844 P.2d 852, 854.

¶ 4 The text of Article 2, Section 5 states:

§ 5. Public money or property-Use for sectarian purposes.
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

The plain intent of Article 2, Section 5 is to ban State Government, its officials, and its subdivisions from using public money or property for the benefit of any religious purpose. Use of the words “no,” “ever,” and “any” reflects the broad and expansive reach of the ban. See Coffee v. Henry, 2010 OK 4, ¶ 3, 240 P.3d 1056, 1057.

¶ 5 To reinforce the broad, expansive effect of Article 2, Section 5, the framers specifically banned any uses “indirectly” benefitting religion. As this Court has previously observed, the word “indirectly” signifies the doing, by an obscure, circuitous method, something which is prohibited from being done directly, and includes all methods of doing the thing prohibited, except the direct means. Haynes v. Caporal, 1977 OK 166, ¶ 7, 571 P.2d 430, 433. Prohibiting uses of public property that “indirectly” benefit a system of religion was clearly done to protect the ban from circumvention based upon mere form and technical distinction.

¶ 6 In authorizing its placement, the Legislature apparently believed that there would be no legal impediment to placing the monument on the Capitol grounds so long as (1) the text was the same as the text displayed on the Ten Commandments monument on the grounds of the Texas State Capitol, and (2) a non-religious historic purpose was given for the placement of the monument. To be sure, the United States Supreme Court case of Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), ruled that the Texas Ten Commandments monument did not violate the Establishment Clause in the First Amendment to the United States Constitution. However, the issue in the case at hand is whether the Oklahoma Ten Commandments monument violates the Oklahoma Constitution, not whether it violates the Establishment Clause. Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040–41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). As concerns the “historic purpose” justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.

¶ 7 Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.

DISTRICT COURT'S JUDGMENT REVERSED; MATTER REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

¶ 8 REIF, C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, GURICH, JJ., concur.

¶ 9 COMBS, V.C.J., and COLBERT, J., dissent.

ORDER DENYING REHEARING

¶ 1 The Oklahoma Capitol Preservation Commission (Commission) filed for rehearing from this Court's opinion filed on June 30, 2015. “Generally, rehearing is granted: (1) to correct an error or omission; (2) to address an unresolved jurisdictional issue; or (3) to clarify the opinion.” Tomahawk Res., Inc. v. Craven, 2005 OK 82, 130 P.3d 222, supp. opinion on reh'g, ¶ 1 (internal citations omitted). We carefully consider the arguments of the Commission and find no merit warranting a grant of rehearing. The petition for rehearing of Appellee, Oklahoma Capitol Preservation Commission, is denied.

REIF, C.J. (by separate writing), and KAUGER, WATT, WINCHESTER, EDMONDSON (by separate writing), TAYLOR (by separate writing with whom GURICH, J. joins), and GURICH (by separate writing), JJ.

COMBS, V.C.J. (by separate writing), and COLBERT, J.

REIF, C.J., concurring specially to the denial of rehearing,

¶ 1 For the most part, I concur to the denial of Appellee's petition for rehearing. Several reasons support such action.

¶ 2 First, the per curiam opinion contains no misstatement of fact or law. Furthermore, the per curiam opinion sets forth settled law that is dispositive of the issue presented and correctly applies such law in deciding the issue. More particularly, the per curiam opinion properly seeks the intent of Article 2, Section 5 in its text and the plain meaning of its language. Because this intrinsic analysis revealed no ambiguity, resort to extrinsic aids is improper and unnecessary.

¶ 3 As this Court has recently observed, “Absent an ambiguity, the intent of the framers and electorate is settled by the language of the provision itself and courts are not at liberty to search for its meaning beyond the provision.” Fent v. Fallin, 2014 OK 105, ¶ 10, 345 P.3d 1113, 1116. The reason for this rule is simple: “Constitutional provisions are not made for parsing by lawyers, but for the instruction of the people and the representatives of government, so that they may read and understand their rights and duties.” Id., ¶ 12, 345 P.3d at 1117.

¶ 4 Interestingly, the Legislature has likewise shown that it considers the language in Article 2, Section 5, to provide clear and unambiguous instruction for public officials.

In 1981, the Legislature enacted 53 O.S. § 20.10, now 53 O.S.2011, § 1.18. This statute governs the expenditure of funds by the Oklahoma Historical Society and provides, in pertinent part, that “Funds shall not be applied, donated or used directly or indirectly for the use, benefit or support of any sect, church, denomination or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” This statutory language is virtually identical to the text of Article 2, Section 5.

¶ 5 Finally, the narrow scope of the per curiam opinion is also consistent with the principle of judicial restraint. This principle dictates that if resolution of an issue effectively disposes of a case, a court should resolve the case on that basis without reaching any other issues that might be presented. Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir.1984).

¶ 6 Even though these considerations support the denial of rehearing, I would grant rehearing for the limited purpose of addressing the case of Meyer v. Oklahoma City, 1972 OK 45, 496 P.2d 789. Although clearly distinguishable from the case at hand, the Meyer case nonetheless provides helpful guidance in deciding whether a particular use of public property is for the benefit of a system of religion.

¶ 7 In Meyer, the taxpayer-plaintiff sought removal of a 50' Latin Cross from City property located at the Oklahoma City Fair Grounds. This Court affirmed the trial court's dismissal of the taxpayer's petition, observing: “The alleged commercial setting in which the cross now stands ... obscures whatever suggestions may emanate from its silent form [and] vitiate[s] any use, benefit or support for any sect, church, denomination, system of religion or sectarian institution as such.” Id., ¶ 11, 496 P.2d at 792–3.

¶ 8 This conclusion was grounded on two factors. First, this Court noted that “The cross is in a distinctly secular environment in the midst of persons in pursuit of distinctly secular entertainment.” Id., 496 P.2d at 792. Secondly, this Court stressed that the cross did not “display, articulate or portray ... any ideas that are alleged to pertain to any of the sectarian institutions or systems named in Article 2, § 5.” Id.

¶ 9 The circumstances of the case at hand fail this test. First, the State Capitol, unlike the Oklahoma City Fair Grounds, is not a ...

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