State ex rel. York v. Turpen

• Decision Date: 15 May 1984
• Docket Number: No. 61986,61986
• Citation: 1984 OK 26,681 P.2d 763
• Parties: STATE of Oklahoma, ex rel. Marvin B. YORK, Petitioner, v. Michael C. TURPEN, Attorney General of the State of Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 763

681 P.2d 763

1984 OK 26

STATE of Oklahoma, ex rel. Marvin B. YORK, Petitioner, v. Michael C. TURPEN, Attorney General of the State of Oklahoma, Respondent.

No. 61986.

Supreme Court of Oklahoma.

May 15, 1984.

As corrected May 21, 1984.

Application to Assume Original Jurisdiction and Petition for Writ of Prohibition and/or Declaratory Judgment.

Marvin York, President Pro Tempore of the Senate, petitions this Court to accept original jurisdiction to review the propriety of Attorney General's Opinion No. 83-202, and to clarify the right of the Legislature of the State of Oklahoma to proceed funding the Police & Firefighters' pension funds in accord with the current statutory scheme enacted by the legislature, including a statute repealing previous funding schemes, 1983 Okla.Sess.Laws, c. 143, § 8, which was, in effect, declared unconstitutional by the above mentioned Attorney General's opinion.

ORIGINAL JURISDICTION ASSUMED; WRIT DENIED.

E. Paul Ferguson, Thomas E. Prince, Ferguson & Litchfield, Oklahoma City, for petitioner.

Michael C. Turpen, Atty. Gen., Neal Leader, Asst. Atty. Gen., Deputy Chief, Civ. Div., John D. Rothman, Asst. Atty. Gen., Oklahoma City, for respondent.

HARGRAVE, Justice.

The underlying issue prompting this application to assume original jurisdiction and petition for writ of prohibition and/or declaratory judgment is the propriety of Attorney General's Opinion # 83-202, which concludes with the following language:

"... the Section of Enrolled House Bill No. 1091 (to be codified as 1983 Okla.Sess.Laws, c. 143, § 8), repealing 11. O.S.1981, §§ 49-136, 50-120 is unconstitutional as applied to firefighters and police officers who were eligible to receive a disability or retirement pension prior to May 26, 1983 absent a showing that this repeal was necessary to protect the actuarial soundness of the firefighters' and police officers' pension systems...."

This proceeding is brought by Marvin B. York, President Pro Tempore of the Oklahoma State Senate, who contends that status is indicative of his standing to bring an action of this nature. Petitioner seeks assumption of original jurisdiction on the basis that the issues raised in objecting to this opinion are of general public concern and are publici juris, a matter pertaining to the community at large. The issues tendered for consideration are of general concern to the public inasmuch as this action raises questions of law which penetrate to the very foundation of state government, as discussed herein. Further, this cause concerns, as alleged by petitioner, what is perceived to be a monumental sum of tax revenue and the actuarial stability of the Police & Firefighters' Retirement & Pension System. The cause is a matter of general public concern in the light of the following, and original jurisdiction is assumed inasmuch as the Attorney General has acted in a quasi-judicial capacity in issuing the opinion above referred to, and it is appropriate to examine the validity of that opinion under Art. 7 § 4 of the Oklahoma Constitution. Draper v. State, 621 P.2d 1142 (Okl.1980). Similarly, we have recently stated that the legislature's presiding officers have standing to bring an action in the name of the State in an original action to require a state official to comply with the statutes which the Attorney General had held to be involved. The interest of these officers was described to be, inter alia, the vindication of the legislature's exercise of its power. State, ex rel., Howard v. Oklahoma Corp. Comm., 614 P.2d 45 (1980). Jurisdiction over this class of proceeding was demonstrated, and petitioner has standing. In the exercise of its discretion, this Court hereby sustains the petitioner's application to assume original jurisdiction.

Broadly, petitioner grounds his prayer for relief in this Court on two bases. First, that the Attorney General has no authority to declare an act of the legislature unconstitutional; second, the Attorney General's opinion is substantially and procedurally incorrect.

The Attorney General counters these assertions by arguing that his opinion does not have that effect. As stated in the respondent's brief, the opinion:

... "merely articulated the constitutional test against which such legislation is measured, opining that the accrued pension rights of pensioners may not be impaired absent a showing that such impairment is 'necessary to protect the actuarial soundness of the pension system.' "

It is altogether unclear in what forum the Attorney General expects the factual determination of "necessary to protect actuarial soundness." It could be that it is anticipated the legislature should pass a statute reciting the facts, or it could be respondent contemplates a fact finding in a nisi prens forum which will somehow validate the statutory repealer presumed invalid in its absence.

Conceding for the sake of argument that opinion # 83-202 falls short of formally declaring the repealer unconstitutional, its effect does not. While in many states such an Attorney General's opinion is merely advisory, in this state it has been held such an opinion is binding upon the state official affected by it and it is their duty to follow and not disregard those opinions. Rasure v. Sparks, 75 Okl. 181, 183 P. 495 (1919). This duty continues until a judgment of a court of competent jurisdiction relieves the public official of the burden of compliance. Pan American Petroleum v. Bd. of Tax Roll Corrections of Tulsa Cty., 510 P.2d 680 (Okl.1973); State v. District Ct. of Mayes Cty., 440 P.2d 700, (Okl.1968). The Attorney General's opinion declares the repealing statute unconstitutional absent a showing of necessity. The statute does not make a "finding" or include a statement of necessity. As the repeal statute exists in praesenti, it stands declared unconstitutional and remains so until further action is taken. In the present state, public officials are bound to the Attorney General's conclusion that the statute is unconstitutional. The Court therefore declines to accept the Attorney General's position that he has not ruled the statute unconstitutional, for such is the precise effect of the opinion.

The Attorney General argues this Court should not assume jurisdiction, inter alia, because "the controversy presently before the Court must turn on a question of fact--whether protection of the actuarial soundness of the pension systems required the repealing or impairment of pensioner pension rights." In the event it was determined that it was necessary to reach the merits of the Attorney General's opinion to rule upon its validity, the point would be well taken.

In stating the repealer is unconstitutional, absent a showing of necessity, the Attorney General is stating in his opinion the statute is unconstitutional, absent a future determination of fact. Since the case law of this jurisdiction teaches state officers must follow these opinions until further action is taken, the repealer must be assumed unconstitutional. The Attorney General's opinion fails to embrace the basic presumption that an act is constitutional. Application of Okla. Capitol Improvement Auth., 355 P.2d 1028 (1960); In Applic. of State of Okla. Building Bonds Commission, 202 Okl. 454, 214 P.2d 934 (1950). And more specifically, if an act of the legislature would be valid only if certain factual circumstances exist, it will be presumed they do exist. State v. Johnson, 90 Okl. 21, 215 P. 945 (1923). Our Constitution states in § 30 of Art. V that the authority of the legislature shall extend to all rightful subjects of legislation.

"In the legislative department of the government is vested the power of enacting all laws. To that department is intrusted the determination of what laws shall be enacted, and what laws shall not be enacted. It must in the first instance determine whether a proposed measure is valid or invalid, and in doing so it will not be presumed that the members of that department, whether they be the electors at the polls, or the members of the Legislature, will enact or attempt to enact legislative measures that they know are violative of the state Constitution or of the federal Constitution, but that they will act from patriotic motives and endeavor to adopt such laws only as will best serve the public good, keeping in mind the limitation upon their powers fixed by the Constitution of the state and the federal Constitution as the supreme law of the land. When such department has acted upon a proposed measure and adopted same, it thereby becomes clothed with the presumption that it is a valid enactment and with its validity the executive and judicial departments have nothing to do, until it becomes the duty of these respective departments to participate in the construction or enforcement of such statute. The duty of determining what law shall be enacted and what law shall not be enacted rests neither upon the executive nor the judicial department." Threadgill v. Cross, 26 Okl. 403, 109 P. 558.

The legislature represents the will of the people in a degree no less conclusive than a constitutional convention, in all matters neither expressly, nor by clear implication, prohibited by the basic law of the state or nation. Dixon v. Shaw, 122 Okl. 211, 253 P. 500 (1927). The Attorney General's opinion places the burden of going forth to some unnamed forum to prove the act was necessary for it to be valid and such conclusion is flatly contrary to the applicable law of the state. This Court is not authorized to consider the desirability, wisdom or practicability of fiscal legislation as a working proposition. To a certainty, our fundamental law establishes these questions belong to the legislative branch of government. This Court is clearly limited to determining the validity or invalidity of legislative acts. Unless prohibited by the Constitution, the legislature has the right to declare fiscal policy. Tate v. Logan, 362 P.2d 670 (Okl.19...