State ex rel. Howard v. Oklahoma Corp. Commission

• Decision Date: 17 June 1980
• Docket Number: No. 53665,53665
• Citation: 614 P.2d 45
• Parties: STATE of Oklahoma ex rel. Gene C. HOWARD, Daniel D. Draper, Jr., Lee Cate, Cal Hobson, and M. David Riggs, Petitioners, v. OKLAHOMA CORPORATION COMMISSION, Respondent.
• Court: Oklahoma Supreme Court

Page 45

614 P.2d 45

1980 OK 96

STATE of Oklahoma ex rel. Gene C. HOWARD, Daniel D. Draper Jr., Lee Cate, Cal Hobson, and M. David Riggs, Petitioners, v. OKLAHOMA CORPORATION COMMISSION, Respondent.

No. 53665.

Supreme Court of Oklahoma.

June 17, 1980.

Original proceeding on application to assume original jurisdiction and petition for writ of mandamus.

Relators filed an "Application to Assume Original Jurisdiction and Petition for Writ of Mandamus" seeking to compel the Corporation Commission to comply with § 12 of Enrolled Senate Bill 49 of the First Regular Sessions of the 37th Legislature. The Corporation Commission, through its staff attorneys, filed a response. The Attorney General of Oklahoma has filed motions challenging the right of the Corporation Commission's attorneys to represent it in this action, questioning the relators' standing to sue, and to dismiss. Held: Relators have standing to sue, Commission's employee-attorneys may represent it and Attorney General may appear ex officio.

MOTION TO DISMISS DENIED.

M. David Riggs, Chapel, Wilkinson, Riggs, Abney & Keefer, Inc., Tulsa, for petitioners.

Harold T. Garvin, Jr., and Charles L. Helm, Oklahoma City, for respondent.

Jan Eric Cartwright, Atty. Gen., John Paul Johnson, Asst. Atty. Gen., Oklahoma City, for the State of Oklahoma.

WILLIAMS, Justice.

In this original action filed in the name of the State of Oklahoma, on relation of those persons named in the caption hereof, self-described as citizens, taxpayers and members of either the Oklahoma State Senate or the House of Representatives of the 37th Legislature, this Court is asked to assume original jurisdiction and issue a peremptory writ of mandamus requiring the respondent Corporation Commission (Commission) to "comply with the provisions of § 12 of Enrolled Senate Bill 49 of the First Regular Session of the 37th Legislature" ¹ despite the rendition by the Attorney General on April 25th, 1979, of his Opinion No. 79-125 holding such § 12 not to have been covered by the title of the Act and invalid as not meeting the requirements of Art. V, § 57 of the Oklahoma Constitution.

Commission, purportedly represented by attorney members of its staff, filed a response briefly going to the merits of the action and describing itself as a "stakeholder", awaiting a "fair and speedy" disposition of the issues herein involved.

The Attorney General filed herein a written "Entry of Appearance", a separate "Denial of Jurisdiction and Response to Petition for Writ of Mandamus", a "Motion to Dismiss" and an "Application for Oral Argument". That official contends that pursuant to common law concepts of his office and statutory provisions, it is the duty, responsibility and privilege of himself alone to represent the Commission. ² The Attorney General further asserts that the Commission is an "embodiment" of the State and that the State as purported petitioner on relation of named relators is the same entity, also entitled to representation by his office only. ³

Commission's staff attorneys, on the other hand, contend that they independently and absent "consultation and advising with the Attorney General" appear for and defend the Commission, or, as the Attorney General puts it, "stand mute" in this case. They ask that we "exclude" the Attorney General from appearing for the Commission in this case.

Preliminary to our reaching that certain threshold question, then, of whether this proceeding should be dismissed, which we have but barely mentioned, and another not yet mentioned until now, raised by the Attorney General as to whether relators have standing to bring this action, and before consideration of the merits of the issues sought to be raised herein, we must first determine whether this Court should assume original jurisdiction and if so, who should, must, or may represent the Commission in this case.

I

We note that by provision of section 10 of the act under consideration in this proceeding, "Appellate jurisdiction is hereby conferred upon the Supreme Court of this state to review the orders of the Commission made under this act. Such appeal may be taken by any person shown by the record to be interested therein, in the same manner and time as appeals are allowed by law from orders of the Corporation Commission in the exercise of their powers under the Oil and Gas Conservation Act."

Oklahoma Constitution Art. IX Sec. 20 provides that appeals from certain orders of the Corporation Commission may be taken to this Court only, and that "in all appeals to which the State is a party it shall be represented by the Attorney for the Corporation Commission, and the Attorney General, or his duly authorized representative." It further confers exclusive jurisdiction on this Court to "review, affirm, reverse or remand any action of the Corporation Commission with respect to the rates, charges, services, practices, rules or regulations of public utilities, or of public service corporations, or to suspend or delay the execution or operation thereof, or to enjoin, reverse or interfere with the Corporation Commission in the performance of its official duties." (Emphasis added.)

At that point the section continues:

. . . provided, however, that writs of mandamus or prohibition shall lie from the Supreme Court to the Corporation Commission in all cases where such writs respectively would lie to any inferior court or officer.

It is to be emphasized that while the foregoing language of sections here considered, makes repeated reference to "appeals," the language last quoted from the Constitution infers jurisdiction lies in this Court to "interfere with the Corporation Commission in the performance of its official duties" by issuance of writs of mandamus or prohibition in proper cases.

By provision of Article VII § 4, this Court is granted original and superintending jurisdiction over all agencies including Commission.

We here emphasize that as was stated in the beginning, this is an original proceeding, not an appeal.

In the furtherance of justice and resolving any slight doubt as to the meaning of the word "appeal" in a broader sense, we use it not for the purposes of technically defining nature of proceedings filed here, but as a basis for determining whether Commission may here be summoned into court to respond to relators' petition.

This Court has considerable fundamental, constitutional authority as concerns its right and duty to assume original jurisdiction as above noticed and also considerable authority over the appearance of counsel, and related matters, implicit from its constitutional grants of authority as also above noticed. See In re Integration of State Bar of Oklahoma, 185 Okl. 505, 195 P.2d 113 (1939).

Assuming that petitioners have standing to bring this original proceeding, we interpret the foregoing language from Art. IX § 20 and Art. VII § 4 as authorizing the assumption of original jurisdiction for the purposes of considering whether the Corporation Commission may properly be summoned into Court for determination of issue of whether it has performed its duties or failed to do so as relators have charged.

II

Turning to the contention of the Attorney General that he alone should represent the Commission, we observe that Art. VI, § 1A of the Oklahoma Constitution provides that the executive authority of the State shall be vested in ten (10) listed officers, one of whom is the Attorney General. While this section directs these officers to "perform such duties as may be designated in this Constitution or prescribed by law" it makes no further reference to or elucidation of the duties of the Attorney General.

With respect to the office of Attorney General as it exists today this Court has said, "In the absence of express statutory or constitutional restrictions, the common law duties and powers attach themselves to the office as far as they are applicable and in harmony with our system of government." State ex rel. Derryberry v. Kerr-McGee, 516 P.2d 813, 818, 819 (Okl.1973).

Certain duties of the Attorney General are explicitly set forth by statute. Title 74 O.S.1979 Supp. § 18b provides:

The duties of the Attorney General as Chief Law Officer of the state shall be:

a) to appear for the state and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme Court and Court of Criminal Appeals in which the state is interested as a party.

c) to appear at the request of the Governor, the Legislature, or either branch thereof, and prosecute and defend in any court before any commission, board or officers any cause or proceeding, civil or criminal, in which the state may be a party or interested; . . . .

Provided further, that in all appeals from the Corporation Commission to the Supreme Court of Oklahoma in which the state is a party, the Attorney General shall have the right to designate counsel of the Corporation Commission as his legally appointed representative in such appeals, and it shall be the duty of said Corporation Commission counsel to act when so designated and to consult and advise with the Attorney General regarding such appeals prior to taking action therein.

Attorneys for the Commission contend that the Attorney General's involvement in this proceeding should be controlled by § 18b(c), as set out above, and that under said section, the Attorney General's duty to appear in this matter is contingent upon a request from the Governor or Legislature or either branch thereof to do so.

We find this contention ignores the straightforward language of § 18b(a) as set out above. The Legislature's intent in that section is clear. If the State is a party before this Court, then ordinarily the Attorney General must appear on its behalf.

The Commission also asserts that 74 O.S.1971 § 18c is an express statutory restriction on the power of the Attorney General. Section 18c provides:

Subject to the exceptions hereinafter set out, no State Officer, Board or...