Russell v. Henderson
| Decision Date | 28 November 1979 |
| Docket Number | No. 54208,54208 |
| Citation | 603 P.2d 1132 |
| Parties | John W. RUSSELL, Jr., District Attorney, 27th District Attorneys' District, State of Oklahoma, Petitioner, v. Honorable Lester D. HENDERSON, Assigned District Judge, Respondent. |
| Court | Oklahoma Supreme Court |
Original proceeding on Application to Assume Original Jurisdiction and petition for Writ of Prohibition.
Petitioner seeks assumption of original jurisdiction and a writ of prohibition to prohibit further proceedings on a County Grand Jury Accusation for removal of the Petitioner District Attorney. Jurisdiction assumed and writ issued holding the accusation for removal demurrable for failure to state facts sufficient to state a cause of action. ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION ISSUED.
Lloyd Payton, Muskogee, Paul Ferguson, Edmond, for petitioner.
Jan Eric Cartwright, Atty. Gen., Barry Albert, David W. Lee, Danny K. Shadid, Timothy S. Frets, Asst. Attys. Gen., for respondent.
L. Jack Barton, Dist. Atty., Woodward, for Oklahoma District Attorneys' Ass'n, amicus curiae.
The Grand Jury of Wagoner County returned an accusation for removal against petitioner, John W. Russell, District Attorney of the 27th District Attorneys' District, on August 21, 1979, alleging petitioner habitually or willfully neglected the duties of that office. The accusation sets forth seven areas of neglect in addition to gross partiality in office. On September 13, 1979, upon the order of the Presiding Judge of the East Central Judicial Administrative District, hearing was held in the District Court of Wagoner County. Hearing was held on various motions, one of which was a motion to dismiss treated in substance as a demurrer. The accusation was sustained except for Paragraph No. 4, which was stricken. Petitioner now requests assumption of original jurisdiction in this Court and prays for a writ of prohibition to prevent further proceedings in the premises on the ground that the District Court erred in holding the accusation sufficient, in any respect, as against the demurrer.
The issue presented here by the Application to Assume Original Jurisdiction is: shall this court exercise its discretionary original jurisdiction to review a trial court's order in effect overruling the demurrer of Petitioner in the face of the ordinary avenue of redress, in this instance an appeal from a verdict and judgment in the event of an adverse jury verdict. Conceding the Respondent is correct in his statement that this court is reluctant to assume jurisdiction to review orders not yet final 1 we have assumed jurisdiction and ruled upon constitutional questions in the instance where a ruling upon a demurrer was not final for lack of a dismissal order. State ex rel. Grand Jury v. Pate, District Judge, 572 P.2d 226 (Okl.1977). There this court noted the general public concern surrounding the important function of the grand jury in this governmental system, and assumed jurisdiction to rule on the power of that body. The question posed here relative to the power of the grand jury to present an accusation for removal of a District Attorney and the allegations necessary to properly plead that accusation are matters Publici juris. Additionally, the presence of other ongoing proceedings which make an early decision necessary if the public weal and judicial economy are to be served lead us to conclude that the application to assume original jurisdiction should be granted.
We first address petitioner's contention that a District Attorney can only be removed from office by impeachment. This proposition derives from Article 8, Section I of the Constitution of the State of Oklahoma, as adopted in 1966, which provides in part:
The petitioner asserts that the District Attorney's office is an elective state office, and thus the officer may only be removed by impeachment. This argument fails. First, this court has previously and correctly referred to the impeachment proceedings as applicable to state officers who are elected by the qualified voters of the entire state. State v. Freeman, 440 P.2d 744 (Okl.1968). Second, Section 2 of Article VIII of the Constitution provides that all elective officers are subject to removal from office as provided by statutory law, unless subject to impeachment. The general policy behind this section of the Constitution of Oklahoma is to subject all elective officials to removal by statute except those excluded by the applicability of the impeachment provision of Article VIII, Section 1. No provision of § 1 subjects District Attorneys to impeachment, and we therefore hold the general removal provisions of Section 2 apply. Such a posture is consistent with our past holding to the effect that a member of the judiciary elected within a district and not by the state citizenry at large is subject to removal under the provisions of 22 O.S.1971 § 1181, et seq. Graham v. Cannon, 574 P.2d 305 (Okl.1978). The import of Graham, supra, and State v. Freeman, supra, is that this court is committed to the principle that impeachment is reserved for officials elected on a state-wide ballot under Article VIII, Section 1 of the Oklahoma Constitution as amended in 1966. Thus the District Attorney is subject to removal by the statutory processes the legislature has seen fit to provide. One such provision was effective four months after the last constitutional amendment of Article VIII, Section 1, and was passed approximately one month after the approval of the amendment, and it is 19 O.S. § 215.16. This statute provides, among other things, that the District Attorney is to be subject to removal from office in the same manner as the County Attorney. 2 Reference is therefore made to 22 O.S. 1181 et seq. Chapter 23 of Title 22, Okla.Statutes. Under § 1181 of that title, any officer not subject to impeachment elected or appointed to any state, county, township, city, town or other office may be removed by the provisions of §§ 1181-1197 of Title 22.
Petitioner's attempted classification of the office of District Attorney as a State officer does not avoid the foregoing discussion in the light of 22 O.S. 1182. That last-mentioned statute clearly provides State officials (not subject to impeachment) are properly answerable to an accusation presented by a grand jury of the county in which such officer resides, or in which he has his place of office for the usual transaction of official business. 22 O.S. 1182 provides:
"An accusation in writing, charging such officer with any of the causes for removal mentioned in the first preceding section, may be presented by the grand jury to the district court of the county in or for which the officer is elected or appointed: Provided, that in the case of a State officer, such accusation may be presented by the grand jury of the county in which such officer resides, or in which he has his place of office for the usual transaction of official business."
The Petitioner's remaining contention is that the accusation for removal fails to state facts sufficient to constitute a cause of action for removal from office. The accusation as returned by the grand jury alleges seven counts of habitual or willful neglect of duty under 22 O.S.1971 § 1181 (First) and one count of gross partiality under 22 O.S.1971 § 1181 (Second). Here the underlying objection to all eight counts of the accusation is that they all allege ultimate conclusions and not, as is assertedly required by the removal statute under consideration, the facts out of which these conclusions are to be drawn by the jury.
In State ex rel. Grand Jury of McCurtain County v. Pate, 572 P.2d 226 (Okl.1977) this Court concluded that an ouster proceeding has attributes in the nature of both a civil and criminal proceeding, and that strict construction of a grand jury accusation as in a criminal indictment should not be applied. The reasoning behind this statement is contained in a much earlier case, Rutter v. Territory, 11 Okl. 454, 68 P. 507 (1902):
. . . (T)here is good reason for this position found not only in the express direction of the statute . . . but also in the fact that no criminal punishment is imposed as a result of a verdict of guilty of the matters charged in the accusation; but that the judgment founded thereon shall be "removal from office" a relief which should be ready, speedy and accessible in behalf of the people who have selected the official, and who ought to, if the charge of the corruption and willful misconduct of officials whom they have elected has been sustained upon an accusation expressed in such plain and simple language as that a person of plain and common understanding may know what is intended.
This Court is committed to the rule that an accusation for removal is not to be judged sufficient or insufficient as a criminal indictment. State ex rel. Grand Jury of McCurtain County, supra, noted the holding therein was not inconsistent with State v. Scarth, 151 Okl. 178, 3 P.2d 446 (1931), wherein it was stated in the third Court Syllabus that where the removal statutes do not adequately provide the procedure to be used therein, civil procedure will be invoked. 12 O.S.1971 § 264 provides the mandatory requirements of a petition in a civil action and is the source from which the requirement that an Oklahoma petition allege facts constituting the cause of action derives. 12 O.S.1971 § 264 provides Inter alia "The petition must contain
Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition."
This requirement that a petition in a civil action must allege the facts...
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...¶ 15 The Court thoroughly re-visited the accusation process nearly 50 years after State v. Scarth, supra, in Russell v. Henderson, 1979 OK 164, 603 P.2d 1132 when the grand jury of Wagoner County returned an accusation against the District Attorney alleging habitual or wilful neglect in off......