*1 attorney may completely not have been dis- alternative conclusion is irrelevant. The trial question. from the events in associated His court had evaluating the benefit of witnesses part- contact with Dr. Gerard resulted from a testimony person. probative val- nership company with the insurance which assigned ue to those witness the trial policy on the holds the Crabtree’s store. ignored. court cannot be The Court finds denying that the trial court’s order the Will that it Court concludes was reasonable probate grounds testamentary on the indepen- for the trial court to find a lack of incapacity and exertion of undue influence previously, dent advice. As stated this Court contrary weight was not to the clear of the findings will not disturb the factual of a trial evidence. they clearly contrary court unless are to the weight of the evidence. It should be noted CERTIORARI PREVIOUSLY GRANT- presented that Gene Crabtree no evidence ED; COURT OF APPEALS’ OPINION VA- relationship the confidential ended be- CATED; DISTRICT COURT’S ORDER fact, question, fore the events in the REINSTATED AND AFFIRMED. directly record would contradict such an as-
sertion. All the Justices concur. argues
The Executor that neither he
nor his wife are beneficiaries of the Will and
are, therefore, legally incapable exerting expressly
undue influence. This Court re
jected argument in the recent Mahems grava
decision. The that “[t]he Court stated legal
men of undue influence is harm from wrongful power exertion of over the will’s COX, Petitioner, Bennie receipt maker than personal rather offending from the act of influence.” benefit Makeras, should, at 274. It howev Ralph DAWSON, Respondent. er, be noted that Gene Crabtree stands to No. 86402. indirectly benefit from the Will since he large would control trust where substantial Supreme Court of Oklahoma. fees are involved. He is the sole trustee and powers the duration of the exercise of his Feb. discretionary up twenty-one last years. legally capable Gene Crabtree was
exerting undue influence this case. reasons, foregoing
For the the Court finds
that there is sufficient evidence to support finding
the trial court’s undue influence
was exerted on Dr. Gerard the Crabtrees. stated, previously
As the standard of review
is deferential. The trial court’s decision is clearly contrary weight
evidence and must be reinstated and af-
firmed.
IV. CONCLUSIONS
The Court has reviewed the record and testimony
found that it contains and evidence reasonably support
that would the trial findings of fact.
court’s That the record
might supporting also contain evidence an *3 appointment expired on
Commission. 1, 1995; reappointed January and Cox was seven-year ending for a term appoint- confirmed both 2002. The Senate Dickerson, Poteau, Larry for Petitioner. 19, 1995, September Governor ments. On Tulsa, Smith, Respondent. Jerry L. Keating informed Cox letter that he be- position number on the Com- lieved KAUGER, Chief Vice Justice. only two-year rather mission carried than a and that his impression presented is The issue of first January 1,1995.3 whether, expired initial were ment Governor after respondent, to the Oklahoma Commission Keating Ralph Daw- named (Commission) beginning October (Dawson), son to Cox’s seat on the Commis- *4 ap- subsequent intended that regular- sion. to Commission’s Cox went pointments O.S.Supp.1995 under 45 ly meeting 1995. on October scheduled ranging one to should for terms from be participate to When he was denied years appointments that all would seven Commissioner, original he filed this ac- as a years. pursuant We that be for seven find argument before the Court was tion. Oral 1,§ O.S.Supp.1995 6,1995. on December held 1, 1986, to Min- the Oklahoma after October ing for were intended to be 1,§ TO PURSUANT O.S.SUPP.1995 jur- original seven-year terms. We assume MADE APPOINTMENTS SUBSE- title isdiction and settle to the office QUENT 1, 1986, TO TO OCTOBER (Cox).2 petitioner, Bennie Cox
THE OKLAHOMA MINING COM- BE INTENDED TO MISSION WERE UNDISPUTED FACTS TERMS. FOR SEVEN-YEAR appointed to Cox was October position urges fill 2 on the us to construe 45 number Cox tion; perti- person background § eco- provides with a in in one 1.Title 45 development banking; person part: one nent nomic utilities; per- background public in one with a hereby the Oklahoma "A. There is created resources; background with a in natural son Mining shall Commission. The Commission persons large and two selected (9) ap- composed of nine members to be be 1, 1995, Although July amended effective pointed by the Governor with the advice quoted portion identical to its statute is of the Senate. consent except portion predecessor of the that the body corpo- The Commission shall constitute a requiring appointment of mem- that Oklahoma, exercise of the State of rate any be act to be known bers "shall not powers of the conferred the Commission Uni- Boards and Commissions as the Oklahoma deemed be held to be this act shall be and shall Districting There- Act” has been deleted. form fore, governmental function of the State an essential statute. will be to the current all references 1, 1986, Beginning January one of Oklahoma. appointed one shall be for a term of member position adopted, Cox was is Even if Dawson’s (1) year; appointed for a one member shall be appointed January a two on 1994—even last (2) years; be member shall term of two one expire year term would not until December (3) years; appointed a term of one for three we have that Cox 1995. Because determined appointed a term of four member shall be position to continue in his on the entitled (4) appointed years; member shall one Commission, we need not the minimum address (5) years; shall term of five two members process requirements of due in Nesbitt outlined (6) years; and two appointed for a term of six (Okla.1995). Apple, P.2d appointed for a term of members shall be (7) qual- years. be a Each member shall seven appointment recent was made Cox's most of this state. ified elector begin on for a term to November membership shall of at least one consist agree if 1995. Even we were background engineering or person with a in Keating's interpretation background person Governor geology; with a one two-year supra, § see safety; person note with a labor or workers’ one conservation; appointment expire December agriculture would not until background in or soil background transporta- person with a § providing varying law, l4 as initial Under our case we hesitate to ranging years from one to ments seven appears construe statute that clear and positions the nine on the Commission unambiguous. Only when the circumstances subsequent appointments with all intended to make it unmistakable that there has been a seven-year be for terms. Dawson asserts legislative oversight will the Court intervene providing specific clarify Here, enactments. positions term limits for certain on the Min- ignored. facts cannot be Counsel for the ing unambiguous Commission is clear and respondent, (Dawson), Ralph Dawson con and that open the statute is not to construc- ceded before argument this Court oral disagree. tion. We the failure to make it clear that terms in 45 O.S.Supp.1995 1 were seven- scheme found in 45 O.S. year staggered legislative terms was a over 1,1986. 1995 1 became effective on October sight. concession, Even without this the re provides The scheme for nine members to be peated acts of the Chief Executives of this appointed member each to serve terms —one parties, State from both ranging Senate’s non years from one to five with two partisan six-year confirmation of fourteen members to serve commis sioners, Legislature’s enacted, approval and the terms. When was Governor George Nigh interpretation by statute’s appointed approval nine members to the staggered terms outlined in the It Commission’s rules indicate that statute. *5 that, undisputed wording except for the of the those statute itself is unclear.8 unexpired terms,5 ments made to all These argu subse- factors —the concession at oral quent appointments seven-year have been for ment that provide the failure to for seven- terms. The participat- Oklahoma Senate has subsequent terms to appoint the initial ed in appointment process by the confirming legislative ments made under 1 was a appointees seven-year to these oversight; terms. the senatorial confirmations of multiple commissioners; Legislature’s the n . Because 45 O.S.Supp.1995 § 1 does not acceptance approval Mining Commis provide certainty the terms of terms; providing sion Rules for Mining appointees, Commission it is Legislature’s consistency the providing in set ambiguous and it is to con- terms for to other boards and struction. commissions9—all Legisla indicate that the ture intended the statutory ap The fundamental rule of Commission pointments staggered seven-year construction is to to be for Legislative discern the in Generally application tent. terms. rules of Because construc the literal applied tion will not be to a if words of 1 would in statute the will result a scheme not clearly Nevertheless, expressed.6 by Legislature, intended the because we construe the ambiguity may an only arise absurdity other than from the statute to an avoid result —a by Legislature, applica clearly words used the the Legislature intended —and may tion of necessary.7 give constructive aids be to import.10 statute its intended 1, 1, Oliver, 380, 967, 4. Title 45 supra. see note v. 86 Idaho 386 P.2d 970 (1963); 362, Libby, Farris v. 141 Me. 44 A.2d 1(B) O.S.Supp.1995 § provides per- Title 45 in 216, (1945); Carron, People Cal.App.4th v. part: tinent Cal.Rptr.2d (Ct.App.1995). occur, "... Whenever a shall the Gov- appoint person ernor shall to fill the unex- footnotes, ” accompanying 8. See discussion and pired term the vacant office.... 9-14, pp. infra. Equitable City Oklahoma Ass'n Taxation v. (Okla.1995); City, 901 P.2d p. 9. See Co., Oglesby Liberty Mut. Ins. 832 P.2d (Okla.1992); Odom, 839-40 Fuller v. 741 P.2d State, (Okla. 10. Nelson v. 288 P.2d (Okla.1987). (An Ct.Crim.App.1955) ambiguous statute calls every interpretative 7. The resort to manifest intent of the will source of con assis tance.). particular language trol over the used. Janson v. Fulton, (Iowa 1968); 162 N.W.2d Bush it subse- ambiguous of what and its re-enactment statute 1 is because Section quent interpretation cer- Tax say does not delineate with to the Commission’s does not —it Legislature adopting the con- tainty appointees terms of the resulted Instead, operates it given agency. The Oral Commission. struction guar- initial-appointment following quote opinion as an statute contains the Roberts Comm’n, subsequent anteeing appointments will that Peterson v. Oklahoma Tax from (Okla.1964): appears staggered. reading, first it On require initial of members many legislature “... where the convened varying to seven certain time slots from one during period administrative times years making any provisions for sub- without disap- expressing without its construction sequent appointments.11 Having determined regarded proval, may such silence as unclear, may the statute is we resort approval acquiescence of the adminis- interpretative available sources of assistance trative construction.” Legislature’s intent.12 to determine Legislature’s re-enact- We found Roberts ment of the statute issue Oral In Oral Roberts v. Oklahoma Univ. (Okla. adoption of law of Comm’n, resulted its a matter Tax the Tax Commission’s construction. 1986), recognized that the this Court the rule ambigu an interpretation or construction of Pro- b. Pursuant Administrative agency uncertain ous or Act, Mining cedures Commission charged is entitled to with its administration authority adopt rules. courts, specifi highest respect from the cally the administrative construction when adopted Rule An definitely uniformly applied. settled 15,1990. February authori- As 460:1-3-1 long interpreta an agency applied which has 460:1-3-1, ty Rule Rule 460:1- adopting position absent a tion not reverse its 1-1 states: *6 forceful, or cogent compelling, reason —i.e. Purpose “460:1-1-1. in conclusively convincing ground. heldWe rules, regulations proce- of The and modes that the as Roberts Tax Commission’s Oral adopted chapter in this are dure contained the interpretation that a different of sertion (1981) 1 et implement to 45 O.S. Sections applied because the “church” should word amended, establishing seq., the Okla- as specified so not suffi Legislature had was (Commission) Mining as homa Commission agency’s interpretation to reverse the cient De- agency for the policy-determining ‘the holding premised The of the term. was setting powers partment of Mines’ and out Legislature spoken that the had not the fact Chapter of the Commission. and duties to the issue. pursuant provisions to of adopted the APA, seq. and 75 O.S. Sections 250 et recognized in Roberts the We also Oral seq.; compliance with to 301 et in Legislature opportunities had Sections the Act, Open Meeting 25 O.S. that its failure the Oklahoma the statute issue and amend seq. the Oklahoma so, the statute 301 et and slight amendments of Sections to do its statute, by supported language the charges majority the two-judge the not dissent 11. The by judicial by supply- supported "indulging legislation the in not consistent with or with it is also just intent, isn’t ing Agency’s interpreta- to the statute which legislative the clear irony allegation lies in the tion, The of this interpre- there.” different or three administrations’ sentence, dissent, very in next fact that the the tations. reading gives plain State "A of section 1 states: Mining any quintessential court It is a function Commissioner, Cox, a two Bennie interpret ambiguous to statutes last resort course, O.S.Supp.1995 office.” Of term of justiciable thereby actual controversies resolve thing. supra, In- note does no such see resolving controversy By we are before it. deed, provision way in 1 does not make Rather, perform- simply legislating. we are not upon subsequent appointment to or reference expiration duty. ing our constitutional original of office. The of the terms only way term was a one can conclude that Cox’s Higgs, just parte 97 Okla.Crim. supply language 12. Ex two-year "which term is to (1953). year interpretation is not The two isn’t there.” Act, Open Records Sections 24A.1 in regular O.S. session three times Rule since seq.” et promulgated. Although was the 460:1-3-1 in Legislature amended 45 1995— O.S. 45 The rule was submitted to the Governor and years after four the Legislature to both houses of the on Febru- statute, adopted the construing rule it did ary approved 1990. The Governor change language relating not 6, 1990; April legislative approv- rule on Legislative ment of Commission members.14 April occurred on al The Rule 1990.13 in prompted Oral us to find inaction Roberts provides: had, silence, Legislature through that the its “Appointment, tenure and status acquiesced approved in and Commis- the Tax organization The of the de- Commission is interpretation relating sion’s to be that clared as enumerated 45 O.S. Here, Legislature churches. has had the amended, Section as other- or opportunity same to act not and has chosen wise established law. addition, by failing disap- to do so. (1) comprised The prove days thirty Rule 460:1-3-1 within of its (9) members, nine appointed by the Gov- submission, approved Mining it has Com- ernor approval interpretation mission’s (7) Senate, year staggered for seven § terms. (2) The Commission constitute a shall acquiesced c. body corporate of the of Oklahoma State interpretation Commission’s authority powers with the all to exercise providing upon by, conferred it but limited to seven-year terms. 1(A) 45 O.S. Section as amended. (3) qualified Each be a member shall if Even the intent is unclear elector of the State. 1,§ Commission’s (4) The nine member Commission shall interpretation of the rule is substantiated persons consist of with varied back- Legislature’s acquiescence in the Com- grounds; engineering at least one in construction.15 Legislature’s mission’s geology; safety; one in labor or worker’s approval silence evidences its of the adminis- conservation; agriculture one in or soil trative construction.16 The Commission’s transportation; one in in economic undeviating position regard own development banking; public one in *7 staggered Legislature’s term limits and the utilities; resources; one in natural modify disinclination to the substance of the large.” two at being statute has resulted the construction firmly Furthermore, Mining Leg-
It is clear- that entrenched.17 the the Commis interpreted adopts an provide sion 1 to for seven- islature construc- administrative year staggered Legislature ap terms. The tion of a statute when it amends the proved the Rule as written. It has convened overriding or re-enacts it without the con- O.S.Supp.1989 Legislative approval through 13.Title 75 the statute in remains inaction promulgated, provides unchanged. effect when the Rule was pertinent part: 1, supra. 14. See note legisla- "... I. 1. rule for Transmission of a pursuant provisions tive review to the of this Trucking 15. Co. v. State Branch ex rel. Oklahoma year April section on each or before 1 of shall Comm'n, (Okla.1990); Tax 801 P.2d approval result in the rule the such Comm'n, v. Oklahoma Tax Peterson Legislature if: (Okla.1964). Legislature a. the is in session and has disapprove thirty Comm'n, failed to such rule within Trucking Branch Oklahoma Tax (30) legislative days 689-70, after rule has been such supra; 15 at see note Oral Roberts Univ. pursuant Comm'n, so transmitted A to subsection Tax v. Oklahoma ...” (Okla.1985). section Section 308 on several has been amended occa- However, procedure sions since 1989. the 17. Id. approved by Appointment, straction.18 Rule 460:1-3-1 was “200.1 Tenure and Status. Leg- Legislature April organization 1990. The The of the Commission is islature amended 45 O.S. effective June declared to be that as enumerated in 45 altering amended, without as O.S. Section Mining upon Commission relied when it otherwise be established law. promulgated its term-limit rule. It has (A) comprised The is adopted interpretation the Commission’s (9) members, appointed by nine the Gov- the statute. approval by ernor and (7) Senate, year staggered for seven having adopted In addition to terms....” interpretation Mining Commission’s of 45 failing object Act, § 1 and to the the Administrative Procedures Under construction, actively partici seq., Senate Legislature 250 et 1) pated approval of at least fourteen may: approve, delay, suspend, veto or appointments partial for full or seven any proposed amend rule or rule under re- 2) objection.19 resolution;21 Legislature joint terms without The disapprove view a practice has followed this without deviation permanent emergency any rule at time if legislative body at If least since 1988. it determines the rule to be inconsistent with 3) repeatedly opera intent;22 aware of a legislative emergen- statute’s or make an tion, during as it was these confirmation cy through disapproval.23 rule ineffective its procedures, interpretation given Rather, con things. It did none of these trolling weight. disregarded It supported Mining will Senate Commission’s in cases of serious doubt.20 doubt does interpretation by following Such it in numerous proceedings. not exist here. confirmation e. The unchal- Commission’s authority so, Despite Leg- d. its to do lenged interpretation has the force islature has not attacked the effect law and is consistent interpretation Commission’s of 45 appointment practices with on other O.S.Supp.1995 § 1. boards and commissions. Legislature has had numerous charged opportunities to attack the This Court is with the Commis duty judicial promul interpretation to take notice of rules sion’s emergency promulgated by pursuant gated An rule the Com to the Administrative Proce promulgated by provides pertinent part: in 1989 dures Act.24 Rules state mission disapprove permanent "The or emer- Id. gency Legislature time if the deter- rule Campbell; mines such rule to be an imminent harm health, 19. are: Charles W. Field; Smith, Jr.; safely public Virgin or welfare of the or the Rev. William L. M. Birdwell; Kelly; state or if the determines that John C. Thomas, John Welton Dean A. (nomination legislative rejected); intent.” A.E. Cran- rule is not consistent Sr. *8 ford; Jr.; Flanagan, William S. Lillian Watts Cox; 253(H) provides § Ray; Medley; in Bennie Bette J. Earnest 23. Title 75 (died Achterberg; pertinent part: L. Jackson before con- Ramon Breeding. completed); firmation and Ken emergency continuing na- "If an rule is of a ture, agency promulgating emergency such the Dick, Long 87 Ariz. 583- promul- proceedings rule shall initiate for (1959). 84 pursuant gation permanent rule to Sec- of a through tions 303 308.2 of this title. 250.2(B)(4) pro- § 21. Title 75 Any emergency promulgated rule shall be vides: made ineffective if: veto, delay, suspend, approve, "The or disapproved by Legislature ..." a. implementation any pro- of rule or amend by Legisla- posed while review the rule under provides pertinent in 24. Title 75 O.S.1991 by joint ture resolution." part: commissions, courts, boards, 250.2(B)(6) agencies, pro- § "... All 22. Tide 75 instrumentalities, authorities, and officers of vides: 280 establishing presumed are to be commissions. other boards
boards and commissions commissions, otherwise.25 Rule 460:1- Legislature specifi- valid until declared and previously not been attacked. Rules 3-1 has cally provided regulations and enacted administrative subsequent to an initial term office will agencies pursuant powers to the and boards staggered specific peri- result terms for a delegated to them have force and effect statutes, od.27 In each of these the subse- law.26 quent appointment period longest is the provided appointment. for an initial Under O.S.Supp.1995 § 1 Title 45 sets § term. is a Because nothing appointments. more than initial It construing provide here to un- specifically provide length for the does specific equal fixed terms for slots on the subsequent appointments. oversight This prac- not conform with the looking Commission does govern obvious when at the statutes any ing approved of other and tice for boards Council, Management judicial the State of Oklahoma shall take trolled Industrial Waste 63 rule, 1-2003.1; amendment, Palsy § revi- official notice of O.S.1991 Commission, Oklahoma Cerebral sion, 485.5; existing promul- § or revocation of an rule 63 O.S.1991 Arkansas- Commission, gated pursuant provisions Compact to the of the Admin- 82 Oklahoma River O.S. 1421; Turnpike Authority, § istrative Procedures Act....” 1991 69 O.S.1991 Comm'n, 1703; Education, Racing § Butler v. Oklahoma Horse 874 70 State Board of O.S.1991 (Okla.1994); 3-101; Helicopters, P.2d 1278-79 § Lone Star State Board of Vocational and Techni- State, (Okla.1990). Education, 101; Inc. v. 237 § cal 70 O.S.1991 Oklahoma 14— Authority, Educational Television 70 O.S.1991 § provides pertinent 25. Title 75 O.S.1991 306 23-105; § Oklahoma School of Science part: Trustees, Mathematics Board of 70 O.S.1991 promulgated pursuant provi- "... Rules 1210; Regents University § Oklahoma, Board of for 3302; sions of the Administrative Act are Procedures § 70 O.S.1991 Board of Re- presumed to valid until declared otherwise gents University, for Oklahoma State 70 O.S. Supreme state district court of this 3409; Regents § 1991 Board of of Oklahoma Court....” 3507; Colleges, Regents § 70 O.S.1991 Board of Arts, College of Oklahoma of Liberal 70 O.S.1991 Leavitt, Impact Group, 26. Toxic Waste Inc. v. 755 3602; Regents § Board of of Northwestern Okla- (Okla.1988); P.2d 630 Texas Oklahoma Ex 3705; College, § homa 70 O.S.1991 Board of Sorenson, (Okla. 1982). press v. P.2d 287 Regents Rogers College, State 70 O.S.1991 3802; Governing § Board of Trustees Junior Col- Commission, 27. Oklahoma Aeronautics 3 O.S. 4404; leges, § Board of O.S.1991 Trustees of 84; Racing § Oklahoma Horse Commis- 4413; College, § Tulsa Junior 70 O.S.1991 201; sion, § Wildlife 3A O.S.1991 Conservation County Higher McCurtain Education Board of Commission, 3-101; § 29 O.S.1991 State Board Trustees, 4427; Regents § 70 O.S.1991 of Enid Rates, Property Casualty for § & 36 O.S.1991 Education, 4430; Higher § 70 O.S.1991 Board 331; Security Employment Oklahoma Com- Tulsa, University of Trustees of Center at mission, 4-104; Advisory § 40 O.S.1991 State 4604; Investigation § O.S.1991 Commission, State Bureau of 402; Council, § of Mental 40 O.S.1991 Board 4— 854; § 74 O.S.1991 State and Edu- Services, Health and Substance Abuse 43A O.S. Board, Group Employees cation Insurance (Identical except express language § 1991 2-103 1304; § O.S.1991 Oklahoma Tourism and Recre- included.); Medical State Board of Licensure Commission, 1802; § 503; ation 74 O.S.1991 State Supervision, § 57 O.S.1991 State Commission, Capitol 199.2; Preservation O.S.1991 Cosmetology, Board of 59 O.S.1991 State 4103; Futures, Examiners, § 74 O.S.1991 § Board of Medical (Identical 59 O.S.1991 482 5002.3; Medical, § included.); Technical and Research Au- except express language Oklahoma, 7052; Commission, thority § 74 O.S.1991 Okla- Oklahoma Real Estate 59 O.S.1991 Board, 858-202; Registration § esters, homa Water Resources O.S.1991 Board of State For- 1085.1; 1203; § Polygraph § Scenic Rivers 82 O.S. Examin- O.S.1991 1461; Board, 1455; County, Municipal and State Exam- Flood ers 59 O.S.1991 Board of Board, 1605; Speech Pathology Audiology, iners Plain 82 O.S.1991 Board of Re- 1607; gents Agricultural and Mechanical O.S.1991 Oklahoma Licensed Profes- Schools *9 Const, 6, Committee, 31(a); Colleges, § Okla. art. Board sional Counselors 59 O.S.1991 1904; Colleges, Beverage Regents § Alcoholic Laws Enforcement of of Oklahoma Okla. Const 506.1; 13, 1; Commission, Regents Higher § § art. Education, Oklahoma State 37 O.S.1991 Oklahoma Const, Family § Therapist 70 Licensed Marital and tee, Commit- Okla. art. O.S.1991 1925.4; 3202; Commission, § § 59 State Board of Wildlife Conservation O.S.1991 Const, 26, 1; Health, 1-104; County § § Board of Okla. art. Public Welfare Com- 63 O.S.1991 mission, Const., 24, 3; Health, 1-201; City-County § Okla. art. Judicial Nom- 63 O.S.1991 Const, 7-B, Health, 1-210; inating Okla. art. Board of 63 O.S.1991 Con- 281 professions represented by mem- tween to be other board or commission our research obviously bership it re 1 re- revealed and because would on the Commission. Section Legisla membership in quires sult a scheme not intended shall consist of ture, conclude that 45 background engi- we in person least one with a gap lacuna —a in the law.29 contains a neering geology, person a back- or one with acknowledging gap the clear is closed safety, per- ground in one labor or workers’ providing for sev of Rule 460:1-3-1 background agriculture in or son with a soil en-year staggered This avenue to terms. conservation, background person with a one clarify Legislature’s rati the statute has the transportation, person in one with a back- approved fication —it Commis banking, ground development in or economic rule, given the interpretative sion’s it has person background public utili- one with a weight by acquiescence in interpretation its ties, person background one natural with during pro interpretation the confirmation resources, large members. If and two at cess, adopted and it has the construction logical argument is followed to its Dawson’s wording through change failure to of its conclusion, require this Court to it would adoption of subsequent the statute Legislature determine that the intended pursuant to Rule 460:l-3-l.30 find that We disciplines of one member these various 1, appointments 45 always than be to shorter term limits 1, 1986, to the Oklahoma Min after October per- if colleagues. example, For his/her for sev ing Commission were intended appointed to the one term was son en-year terms. conservation, agriculture educated or soil in- position representing these —the always inexperi- from terests —would suffer interpreted f. are to avoid Statutes ence on the Commission. Certain interests discriminatory absurd or pattern of dis- would be diminished as this consequences. nothing in continued. There is crimination principle of It is a well-settled Legisla- that the Code to indicate that, possible, construction where intended this result. ture absurd courts will not allow statutes to have argu- agree Dawson’s Were we to discriminatory consequences.31 A con automatically three ments there would absurdity an struction that would lead to created on the Commis- vacancies if discriminatory will be avoided treatment lawfully positions six would be violating legislative it can be done without sion— staggering occupied. of the reasons for One interpretation If advanced intent.32 is to on state and commissions terms boards accepted each commissioner Dawson is —that that an incumbent Governor will ensure period appointed specific for the time out politi- in the favor of one 1, stack these entities §in to hold lined we would be constrained party. cal Legislature intended to discriminate be- 1, 1, System supra. For Jus O.S.Supp.1995 § note Oklahoma Retirement 28. Title 45 see Uniform 1302, (Okla. Judges, & 769 P.2d tices 1988). City City Tax v. Oklahoma Comm’n, 1287, (Okla.1990); State 789 P.2d 1292 Comm’n, 911, (Okla.1989); 872 P.2d Goforth, 31. Strelecki v. Oklahoma Tax 772 914 Maulé v. P.2d (Okla. 1993). 920 Independent v. School Dist. No. Aldisert, (Okla.1985); R. "Hard Core Judi- 203 Facing Judges in the cial Process Problems 80’s", presumed will not be Id. The (1982). p. result. Ledbetter have intended a vain or absurd Enforcement, 764 P.2d Bev. Laws v. Alcoholic (Okla.1988); challenge LeFlore v. has been raised to 30. No constitutional Reflections Tulsa, Inc., (Okla.1985); 1, supra. O.S.Supp.1995 § Never see note Johnson, (Okla. theless, P.2d Legislature’s recodification of a stat Johnson Cannon, 1983); P.2d recompilation Farris v. has been found ute in a decennial (Okla.1982); County Irrigation v. Cities purge prior Texas constitutional infirmi Co., (Okla.1977). P.2d Serv. Oil v. State ex rel. Bd. Trustees ties. Allen *10 the initial made after CONCLUSION will be. the Commission is made § O.S.Supp.1995 appears Although 45 face, not a upon its it does delineate clear 8) In all other schemes for appointments made after the ini- scheme for commissions, subsequent boards and appointments of October to the tial longest appointments are for Mining that is consis- Commission appoint- provided term for an initial intent, legislative legislative or tent with with ment. promulgat- the rules practice, executive with 9) literally To construe branch, legislative approved by the ed and discriminatory pat- would result a practice legislatively-approved other repeatedly favoring one interest tern or commissions.34 Constru- on other boards ing the statute in the manner advanced over another. Mining Commis- Dawson would result overwhelming of this evi- It is because always having that are under- interests sion Legislative that the dence of intent ambiguous. represented. The statute is Mining ments to the Oklahoma Commission in isolation has convinced us No one factor subsequent to October were § reading result in a
that a literal would seven-year be for terms that we have under- Legislature did not intend. consequence the taken to construe 45 1. Un- However, compel- a combination of there is pointing these factors der unmistakable ignore: ling factors we cannot intent, original juris- legislative we assume 1) for Dawson conceded oral Counsel office in Bennie diction and settle title to the provide argument the failure to Cox. seven-year subsequent terms for appointments the initial made under ASSUMED; ORIGINAL JURISDICTION legislative oversight. § 1 awas TITLE IN THE TO OFFICE SETTLED 2) parties have inter- Governors of both PETITIONER, BENNIE COX. seven-year preted provide appointments. WILSON, C.J., ALMA HARGRAVE and 3) repeatedly confirmed, The Senate SUMMERS, JJ., CHAPEL, Special opposition, partisan subse- without Judge, concur. years. quent for seven terms 4) Mining promulgat- Commission HODGES, LAVENDER, SIMMS and pursuant ed rules to the Administra- OPALA, JJ., dissent. implementing § Act
tive Procedures subsequent clearly provide which ALA, Justice, dissenting. OP seven-year appointments be for terms. original cognizance and The court assumes 5) commissioner, opportunities Despite that the Ben- numerous to do holds incumbent
so, [Cox], chal- position has not nie Cox has title to number lenged in- Commission’s [Com- on the Oklahoma (It terpretation § 1. should be expires for a term that mission] the circumstances here noted that pronounce- 2002. The court’s challenge present gubernatorial ment, of 45 which rests on its construction one.) legislative l,1 declares that 6) Legislature approved provisions gubernatorial ap- section’s all interpreting § 1. Commission rule pointments to be made 7) 1,1986, enacted, October are intended to extend Nothing states after period years. of seven what of time O.S.Supp.1995 § supra. see 33. Title 45 see note 1. For terms note 3. infra 27, supra, accompanying discus- 34. See note sion. *11 appointments have Thus far five analysis year term. to the court’s I cannot accede (a) Amzi post: Gossard been made to controversy. Much too much is decided two-year initially appointed for a term by today’s opinion. impossible to afford was It is (b) 1, 1988);4 January a Charles plea (ending in the nature of relief on Cox’s full appointed I for a seven- quo Campbell Were to measure was then writ of warranto. (e) 1, 1995);5 plain solely by (ending January year to his office term Cox’s 1, herein, Cox, his two- petitioner was Bennie first 1, expire January 8, Campbell’s term did not until to fill appointed October legally ap- reappointed 1996. Cox’s successor is unexpired Until term6 and then may 18, not be re- pointed qualified, and he 1994 for a new November (d) In the except 1, 2002);7 for cause.2 moved from office (ending January term meantime, participate allowed to he must be appointed Ralph Dawson was Octo- [Dawson] fully 16, in all matters before the Commission. 16, ending a “term October ber 1995 for I settle now. That is all would 1996”.8 for (1) by provisions of 45 urges: Cox
I
legislature
had intend-
that,
following
gubernatorial
ed
the initial
OF SUCCESSION
HISTORY
appointments,
all commissioners will serve
(2)
terms,
1(A)3
ap-
staggered seven-year
his
pro-
The text of 45
seven-year peri-
was for a
pointment
to the Commis-
vides that an
od,
begin January
1995 and to end
a
position number 2 shall be for
two-
sion’s
3. The
fra
are:
See
bers
shall
pointed
porate
seven
member.”
of
mission
times
term of
member
shall
member shall be
this act shall be deemed
tutional
performance
appointed
an essential
consent
term two
(1)
appointed
(4) years;
ified elector of
members
of Oklahoma.
note 3.
The Commission shall constitute
Whenever
B.
"A. There is
the vacant office.
the Commission of the
composed
year;
the terms of 45
pertinent
constitute a
appoint person
n
annually. majority
(7)
The Commission shall
of the State of
of the Senate.
Commission.
shall take and subscribe
by
five
shall be
years.
be removed
one
shall be
for a term
the Governor with
(Emphasis
governmental
n
(5) years;
(2)
member shall be
a term of six
terms of
of nine
member shall be
this state.
Beginning January
hereby created the Oklahoma
A
years;
Each member shall be
appointed
quorum. Commission mem-
appointed for a term of one
[*]
O.S.Supp.1995 §
appointed for a term of
Each member of
duties as a Commission
oath of office
shall
Oklahoma,
added.)
of three
(9)
The Commission shall
two
and shall be held to be
one member shall
ijt
fill
powers
function of
members
O.S.Supp.1995 §
occur,
(6) years; and two
of the Commission
for
members shall be
cause.
meet at least six
n
appointed
appointed for a
the advice and
(3) years;
a term of four
unexpired
to the consti-
conferred
and exercise
the Governor
a
prior
to be
body
n
the Com-
the State
1(B),
for
qual-
term
cor-
one
one
ap-
in-
by
a
4. Governor
5. Order of
7. Order
6. Order
which
pp.
ment to
Journal for the Second
the Senate on
Fortieth Oklahoma
which states
Bellmon),
Walters),
homa
Walters),
Session of the
(1986)).
error.
Campbell’s appointment
sis
Senate
to Cox notes that
Keating),
expired
homa
the First
Cox.”
Second
Senate on
(7)
Order of
mine.)
year term
been in session since
Legislature, pp. 731-733
Legislature, pp. 902-908
Cox's
The Governor's
was confirmed
January
(Senate
Regular
position number 2 on the
Regular
filed November
filed
filed October
filed
May
Campbell
George Nigh
Appointment
Appointment (by Governor Frank
Appointment
Appointment
term,
that “Dawson
ending January
(1988)).
October
April
Forty-first
May
Journal
Session
Session of the
his
if
1995. This date
indeed
resigned
two-year
Legislature, pp. 563-565
8, 1993;
September
The order
by the Senate
for the Second
1988;
Regular Session of the
Dawson’s
is for
18, 1994;
(Senate
made the first
1995. The Senate
(by
(by
(by
(Senate
in 1993.
succeeding
Forty-fourth
(1994)).
(1995)).
two
confirmed
Governor
1995.”
Governor David
confirmed
Governor David
"an
Foriy-fifth
Journal for the
provides
years,
appointment,
confirmed
initial
Legislature,
Journal for
1995 letter
clearly
(Empha-
Regular
(Senate
Bennie
expired
by
Henry
Okla-
seven
Okla-
*12
(as
1,
According
yond
prescribed legal (statutory
2002.9
to Dawson
the
or con-
stitutional)
(de jure)
Keating),10
plain
term falls into the latter
well as to Governor
the
category.
by legislative
unequivo-
This is so because
legally
mandate a holdover is
in office until a
cally
two-year
post
term
establishes
for the
appointed
qualified.15 An
2).11
successor
and
(position
here in
number
contest
appointment
longer
a term
than that
by
provided
statute does not transform the
II
gov-
appointee into a de
officer.16 The
facto
by
power
TO AN
ernor’s
to fill vacancies created
the
DAWSON WAS APPOINTED
resignation of a state officer
not include
THAT
does
OFFICE
WAS LEGALLY
limit,
authority
enlarge
the
or otherwise
BY
OCCUPIED
ANOTHER
during
appoin-
condition the term
which the
A.
tee is to serve.17
(a) occupies
A de
is one who
that,
claims,
Assuming
as
the
Dawson
facto officer
(b)
existence,12
an office that is in
under color
position
only
term of office for
number 2 is
by
ap-
of title
of an otherwise
virtue
valid
years,
question
two
the
was vacant
office
(c)
pointment,
disqualified
(for
and
has become
appointed in
when Cox was
1993
contrast,
jure
term)
position.13
hold that
a de
predecessor’s
remainder of his
(at
legally appointed
is one who is
expiration
perceived
later in
of a
1991
officer
term).
qualified
seven-year
Although
to exercise the duties of the office.14
Cox
jure
occupies
post
legal
A de
officer
who
be-
to removal after the end of his
view,
acts,
Support
urges,
though
9.
for this
Cox
is found in
one whose
officer,
not those of a lawful
law,
legislature’s
reject
upon principles
failure to
policy
of
contemplate seven-year
justice,
they
rules which
terms and in
will hold valid
far
so
as
involve the
seven-year
the Senate's confirmation of several
public
persons,
interest of the
and third
where
* * *
position
for not
number 2 but
by
functions of the office are exercised
positions
also
on the Commission. Be-
other
possession
who was
actual
of it under
18,
reappointed
he was
November
cause
title”); Rucker,
268;
supra
color of
note 12 at
ending January
for a
term
Building
Equaliza-
Mid-Continent
Co. v. Board of
argues,
position
Cox
there was no
tion,
525,
(1939) (a
(syl.3)
184 Okl.
SUMMARY OMALZA, Floyd, Alfredo Ronnie Lee today’s pronouncement I would confine Flippo, Appellants, David Lee (a) declaring presently Cox has a effec- (b) office; tive claim to the Dawson is sans Oklahoma, (c) Appellee. STATE of colorable title and Cox must be allowed to participate proceedings. in Commission I F-93-141, F-93-336, Nos. and F-93-65. not, today, would as the court does settle the Appeals Court Criminal of Oklahoma. controversy length over Cox’s term of Dec. presently justicia- office. That issue is not ble,25 Rehearing Denied Feb.
SIMMS, Justice, dissenting: agree original jurisdiction
I should be
assumed, however, grant I would the re-
quested quo relief in the nature of warranto. O.S.1991, 1,§ in question,
The statute
plain unambiguous on its face. The ma-
jority ambiguous, seems to find it not be- says, it
cause of what but because of what it effect, say. majority indulges
doesn’t judicial legislation by supplying just
to the statute which isn’t there. plain reading gives
A State
Commissioner, Cox, Bennie a two appointment
of office. Because his was ef- 1, 1994, January expired
fective his term at which time the being by gubernato-
became filled
rial with the advice and consent O.S.1991, 1(B).
of the Senate. See 45 If otherwise, intends it is free
to amend Const.,
By reason of Art Okla. permitted
Petitioner Cox should be to contin- perform
ue to the duties of his office until his duly qualified.
successor is respectfully
I must dissent.
I am authorized to state Justice Lav- joins expressed
ender with me in the views
herein. Application Dept, Transp., State ex rel. 609; Hendrick, supra note 20 at note 20 at supra