Reynolds v. Fallin

• Decision Date: 29 March 2016
• Docket Number: No. 114,481.,114,481.
• Citation: 2016 OK 38,374 P.3d 799
• Parties: Michael D. REYNOLDS, a Resident Taxpayer of the State of Oklahoma, and for the Benefit of the other millions of Oklahoma Taxpayers and non-resident Taxpayers, Plaintiff/Appellant v. 1. Mary FALLIN, Governor of the State of Oklahoma and the Governor's Office; 2. Ken Miller, Treasurer of the State of Oklahoma and of the State Treasurer's Office; and custodian of the State's Funds one being the General Revenue Fund; 3. Preston Doerflinger, State Director of the Office of Management and Enterprise Services; 4. John Doe and/or Mary Doe, Attorneys for State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the General appropriation Bills and/or each of their Sections of the Bills are constitutional and/or lawful, Defendants/Appellees.
• Court: Oklahoma Supreme Court

374 P.3d 799

2016 OK 38

Michael D. REYNOLDS, a Resident Taxpayer of the State of Oklahoma, and for the Benefit of the other millions of Oklahoma Taxpayers and non-resident Taxpayers, Plaintiff/Appellant

v.1. Mary FALLIN, Governor of the State of Oklahoma and the Governor's Office; 2. Ken Miller, Treasurer of the State of Oklahoma and of the State Treasurer's Office; and custodian of the State's Funds one being the General Revenue Fund; 3. Preston Doerflinger, State Director of the Office of Management and Enterprise Services; 4. John Doe and/or Mary Doe, Attorneys for State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the General appropriation Bills and/or each of their Sections of the Bills are constitutional and/or lawful, Defendants/Appellees.

No. 114,481.

Supreme Court of Oklahoma.

March 29, 2016.

Jerry R. Fent and Ted Pool, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Jared B. Haines, Asst. Solicitor General and Mithun S. Mansinghani, Deputy Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Defendants/Appellees.

COMBS, V.C.J.:

PROCEDURAL HISTORY

¶ 1 At issue here is the constitutionality of various provisions of three general appropriation bills enacted in 2012 through 2014. On July 29, 2015, the Appellant (Reynolds) filed an amended petition¹ presenting 18 causes of action concerning SB 1975 (2012 Okla. Sess. Laws c. 311), HB 2301 (2013 Okla. Sess. Laws c. 313), and SB 2127 (2014 Okla. Sess. Laws c. 420). Reynolds asserts these three general appropriation bills contain substantive legislation in violation of Okla. Const. art. 5, § 56 and some sections do not specify the object for the appropriation in violation of Okla. Const. art. 5, § 55. He also asserts these bills violate the balanced budget provisions of Okla. Const. art. 10, § 23 because some of their sections become effective on dates other than July 1, the beginning of the fiscal year.² In addition, he claimed several sections of the bills are constitutionally invalid because they appropriate money from prior years or multi-years in violation of Okla. Const. art. 10, § 23.

¶ 2 Reynolds sued the Defendants/Appellees, Mary Fallin, Governor of the State of Oklahoma; Ken Miller, Treasurer of the State of Oklahoma; Preston Doerflinger, State Director of the Office of Management and Enterprise Services (Appellees) and various unnamed state attorneys for their alleged involvement with the three general appropriation bills.³ On August 18, 2015, Appellees filed a motion to dismiss Reynolds' amended petition for failure to state any claims for which relief may be granted. In Reynolds' response he did not specifically refute the argument and authorities presented in this (second) motion to dismiss.⁴ He instead presented a new theory that all three general appropriation bills were somehow unconstitutional because the Attorney General of Oklahoma had previously determined that one section of SB 2127 (2014 Okla. Sess. Laws c. 420, § 144) contained substantive language⁵ ; this section, however, was not challenged in the amended petition and consisted of language different from that challenged. On the same day that Reynolds filed his response to the motion to dismiss, August 28, 2015, he filed a motion for summary judgment which mirrored his response.

¶ 3 A hearing was held on September 25, 2015, concerning the motion to dismiss and Reynolds' motion for summary judgment. The journal entry of judgment, filed November 4, 2015, held the challenged transfers from revolving funds were not substantive provisions in violation of Okla. Const. art. 5, § 56. The court also held Reynolds' other causes of action did not state claims upon which relief may be granted for the reasons stated in Appellees' motion to dismiss. The district court granted Appellees' motion to dismiss the amended petition and denied Reynolds' motion for summary judgment.

¶ 4 Reynolds filed a petition in error on November 30, 2015, appealing the district court's judgment denying his motion for summary judgment and granting Appellees' motion to dismiss the amended petition. This Court retained the appeal on December 22, 2015, and made it a companion to the appeal filed under Case No. 114,482.⁶ This appeal is filed under Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2013, Ch. 15, App. 1, as an accelerated appeal. There has been no briefing ordered and therefore our review will be confined by the issues raised on appeal in the petition in error. Reynolds' motion to set this matter for oral argument is denied.

STANDARD OF REVIEW

¶ 5 Our review of a trial court's dismissal for failure to state a claim upon which relief can be granted involves a de novo consideration of whether the petition is legally sufficient. Indiana Nat. Bank v. State Dept. of Human Services, 1994 OK 98, ¶ 2, 880 P.2d 371. The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204. A petition can generally be dismissed only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory. Id.

¶ 6 Except where prohibited by the Constitution, the Legislature has the right and the responsibility to declare the fiscal policy of Oklahoma. Calvey v. Daxon, 2000 OK 17, ¶ 21, 997 P.2d 164.⁷ There is a strong presumption which favors the constitutionality of legislative acts. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 22, 163 P.3d 512 ; TXO Production Corp. v. Oklahoma Corp. Com'n., 1992 OK 39, ¶ 7, 829 P.2d 964 ; Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶ 5, 730 P.2d 510. When a legislative enactment is attacked we will indulge every reasonable intendment in applying and interpreting the same in light of the Constitution. Edwards v. Childers, 1924 OK 652, ¶ 27, 102 Okla. 158, 228 P. 472. A party challenging the constitutionality of legislation has a heavy burden of showing its infirmity by persuasive argument and analysis with authority. Fent, 2007 OK 27 at ¶ 22, 163 P.3d 512. If there are two possible interpretations, one of which would hold the enacted legislation unconstitutional, then this Court must apply the interpretation which renders it constitutional. Calvey v. Daxon, 2000 OK 17, ¶ 24, 997 P.2d 164. Unless a law is shown to be fraught with constitutional infirmities beyond a reasonable doubt, we are bound to accept an interpretation that avoids constitutional doubt as to its validity. Calvey, 2000 OK 17 at ¶ 24, 997 P.2d 164. The statute must be “clearly, palpably and plainly inconsistent with the constitution.” Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶ 11, 679 P.2d 1296.

ANALYSISI. The Challenged Transfers From Revolving Funds, Transfer Authorizations and Expenditure Authorizations Did Not Violate Okla. Const. Art. 5, §§ 55 and 56.

¶ 7 Reynolds' principle argument is that three types of sections in the challenged general appropriation bills are substantive laws and do not constitute appropriations. He identifies the alleged offending sections in his issues to be raised on appeal and asserts they violate Okla. Const. art. 5, §§ 55 and 56. These sections provide:

No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.

Okla. Const. art. 5, §§ 55 (emphasis added).

The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.

Okla. Const. art. 5, § 56 (emphasis added).

A. Transfers from a Fund to the Special Cash Fund: Amended Petition Causes of Action 1, 6, and 12.

¶ 8 The first category of sections Reynolds challenges concern “TRANSFER” sections of the general appropriation bills that transfer money from one fund to the Special Cash Fund of the State Treasury. These are found in causes of action 1 (2014 Okla. Sess. Laws c. 420, §§ 145–158 (SB 2127)), 6 (2013 Okla. Sess. Laws c. 313, §§ 132–137 (HB 2301)), and 12 (2012 Okla. Sess. Laws c. 311, §§ 61, 68, 75, 148, 149, 152, and 157 (SB 1975))⁸ . For example:

SECTION 145. TRANSFER The Director of the Office of Management and Enterprise Services shall transfer the sum of Two Million Dollars ($2,000,000.00) from the Oklahoma Center for the Advancement of Science and Technology Research Report Revolving Fund (200 Fund) to the Special Cash Fund of the State Treasury.

2014 Okla. Sess. Laws c. 420, § 145 (SB 2127).

¶ 9 Each of these sections transfer money from a fund to the Special Cash Fund⁹ of the State Treasury. Reynolds argues these sections cannot be appropriations because they do not state the object or purpose for their use as required by Okla. Const. art. 5, § 55 and therefore they are substantive law. He asserts Okla. Const. art. 5, § 56 provides that a general appropriation bill may only contain appropriations not substantive law and therefore these bills are unconstitutional.

¶ 10 Appellees assert the Special Cash Fund is only a pass-through account and each general appropriation bill contains other sections which provide for appropriations from...