HUNSUCKER v. FALLINHUNSUCKER v. FALLIN
Lead Opinion
¶1 Petitioners filed applications for the Court to ■ assume ■ original jurisdiction' and grant extraordinary declaratory and injunc-tive relief. Petitioners have four constitutional claims. Two claims attack the constitutionality of Oklahoma Senate Bill No. 643, the Impaired Driving Elimination' Act 2 (IDEA2). Two claims attack the constitutionality of the Governor’s Executive Order 2017-19, promulgated on June 8, 2017, and designed to implement a portion of S.B. No. 643.
¶ 2 We hold the Impaired Driving Elimination Act 2 is unconstitutional in its entirety due to violating the single subject rule in Okla. Const. Art. 5 § 57. We hold one provision of the Act, section 13, violates the Due Process Clause in Okla. Const. Art. 2 § 7. Because we conclude the provisions of the Act are not severable and the Act is unconstitutional in'its entirety, we. need not adjudicate petitioners’ additional claims challenging the Act and the Governor’s Executive Order. We hold these, petitioners possess standing. We further hold respondents Schulz and McCall are not proper parties, and their motion to be dismissed as parties is granted.
I. Petitioners’ Standing
¶ 3 The new Impaired Driving Elimination Act 2 (IDEA2) contains seventeen numbered sections and according to its title includes, but is not limited to, provisions which relate to revocation, modification, and reinstatement of driver licenses, ignition interlock devices installed in vehicles, making certain acts unlawful, clarifying and deleting procedures relating to blood and breath tests for the presence of alcohol, surrender of driver licenses, and authorization to the Department of Public Safety to create the Impaired Driver Accountability Program by June 30, 2018. Petitioners, four Oklahoma lawyers and licensed drivers raise two constitutional claims on' behalf of themselves and their clients and argue they will be adversely affected when the Act is scheduled to become effective on November 1, 2017. Respondents challenge the standing of the petitioners to bring an action challenging a new Act which has not yet been made effective.
¶ 4 Petitioners allege they possess standing based upon one or more of five criteria: 1. They are subject to potential criminal prosecution pursuant to the new legislation; 2. They are subject to potential civil drivers’ revocation in the future; 3. They represent the interests of future clients subject to civil and criminal proceedings within the scope of the, new. Act; (4) The new Act will have an adverse economic impact on their businesses which represent many Oklahomans in erimi-nal and civil proceedings related to the subject matter of the new Act; and (5) They possess “public interest” standing. We need not analyze the issues raised by petitioners and respondents relating to petitioners’ standing based upon potential criminal proceedings,
¶ 5 This Court possesses discretion to grant standing to private parties to vindicate the public interest in eases presenting issues of great public importance.
¶ 6 A matter that affects the rights of the citizens of the State is publici juris.
¶ 7 The adjective-law
II. Motion to Dismiss Filed by Respondents Schulz and McCall
¶ 8 Oklahoma Senate President Pro Tempore, Senator Mike Schulz, and Speaker of the Oklahoma House of Representatives, Representative Charles McCall, were named as respondents by petitioners. These two respondents filed a response and motion to dismiss the action against them. They assert they are immune from petitioner’s action, and they are correct.
¶ 9 Petitioners allege these two respondents “in their official capacities violated the Oklahoma Constitution’s single subject provision in passing SB 643.”
¶ 10 The language of Oklahoma Constitution, Article 5 § 22 states: “Senators and Representatives shall, except for treason, felony, or breach of the'peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, and, for any speech or. debate in either House, shall not be questioned in any other place,” We have explained this language: The Speech or Debate Clause of the Oklahoma Constitution, Art. 5, § 22, absolutely protects legislators from suit calling for judicial inquiry into their performance “within the sphere of legitimate legislative activity.”
Legislators may not be haled into court, either to account for acts that occurred in the course of legislative process or for judicial inquiry into their motivation for those acts. The legislative privilege has never been limited to words spoken in debate. The constitution’s immunity shields all enactment-related conduct, whether a ■legislator be sued (1) personally, (2) in an official capacity, or (3) as the Legislature’s leader. The line separating protected from unprotected legislative activity lies in the distinction between “purely legislative activities” and those that are nongermane “political matters”.
Brook v. Thompson,
¶ 11 Petitioners have haled into this Court these two legislators for the purpose of giving an account and defense for their participation in enacting a piece of legislation while serving in the Oklahoma Legislature. The petitioners’ claim against these respondents does not fall within a listed exception in Okla. Const. Art. 5 § 22, but is based solely on petitioners’- claim the legislation violates a provision of the State Constitution.
¶ 12 Senator Mike Schulz and Representative Charles McCall clearly possess immunity from the legal liability sought to be imposed by petitioners and they are dismissed asparties.
Ill, Okla. Const Art. 2 § 7 Due Process Clause and Senate Bill No. 643
¶ 13 Section. 13 of the new Act amends
¶ 14 More than forty years ago the U. S. Supreme Court explained that revocation of a driver’s license must conform to the Due Process Clause.
¶ 15 In 1986, we explained: “One’s claim to a driver’s license is indeed a protec-tible property interest that may not be terminated without due process guaranteed by the Fourteenth Amendment.”
¶ 16 Respondents argue that the seizure and destruction of a driver’s license upon arrest without the opportunity for an administrative hearing does not violate the State Due Process Clause because no driving privilege is revoked when the license is seized and destroyed and an additional license may be obtained by the driver. At oral argument, counsel for the Commissioner for the Department of Public Safety stated that the new Act and new administrative rules expected to be promulgated allow a person whose license is seized and destroyed under the new Act to appear at the Department of Public Safety and; replace the-seized license with “a new plastic driver’s license” for twenty-five dollars ($25.00), or a new temporary paper license valid for an additional forty-five days. Again, contrary to petitioners’ claim that 47 O.S. § 6-303(G)
¶ 17 The new Act provides for revocation of driving privileges upon a person’s criminal conviction of certain crimes (when final), receipt of a deferred criminal sentence, and receipt of a deferred prosecution agreement for these statutorily specified crimes.
¶ 18 The one exception to revocation of driving privileges based upon District Court criminal adjudications (conviction, deferred sentence and deferred prosecution) occurs where the Department is given discretion to revoke driving privileges in certain other circumstances. For example, when the Department receives “a report of a verified ignition interlock violation” it may revoke a driving privilege.
I am requiring the DPS to follow directions consistent with the recent Oklahoma Supreme Court Order in Nichols v. State, ex rel. Dept, of Public Safety,2017 OK 20 [392 P.3d 692 ]. I also direct and order the DPS to grant a hearing on revocation of license in conformity with the due process clause of the Fourteenth Amendment of the United States Constitution, and within the time limits imposed by our Supreme Court. DPS may create an exception to these hearings for any individual that receives a deferred adjudication, a suspended sentence, or a formal conviction under the criminal code.
Executive Order, 2017-19, (June 8, 2017).
At oral argument, counsel for the Governor explained that Executive Order 2017-19 was intended to apply only when the Department revokes driving privileges unrelated to revocation as a direct consequence from convictions or deferred sentences prosecutions. He again explained that under the new Act revocations are either a consequence of (1) a criminal conviction (including deferred sen-tenee/proseeution) or (2) specific statutory violations where the Department is given the power to revoke the driving privilege. He explained it is only in the latter circumstances where a driver may have an opportunity for an administrative hearing before the Department of Public Safety.
¶ 19 The parties agree the new Act provides for mandatory seizure of the license, its transmittal to the Department, and its immediate destruction upon receipt. The parties agree this aсtion is not reviewable by an opportunity for any administrative proceeding. This Court determines (1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation.
¶ 20 A law enforcement seizure and immediate destruction of a driver's license constitutes an arbitrary deprivation of property when no legitimate State purpose is shown for seizure and destruction. No opportunity to challenge this seizure and destruction is given to the driver. Respondents rely upon Price v. Reed, supra, and the constitutionality of an immediate seizure of a license. However, the license seizure in Price was part of an administrative/regulatory scheme combining seizure with loss of driving privileges and with an opportunity for a driver to challenge the regulatory actions of the State. Price gives no support to respondents’ due process argument on petitioners’ substantive due process property claim. No State purpose, regulatory goal, or law enforcement goal for the seizure and destruction was articulated during oral argument by respondents, or is revealed in their filings, or is revealed by our review of S.B. No. 643 when construed consistent with the respondents’ arguments.
IV. Okla. Const Art. 5 § 57 Single Subject Rule and Senate Bill No. 643
¶ 21 The Oklahoma Constitution, Art 5 § 57,
¶ 22 Section 1 of the Act provides the name “Impaired Driving Elimination'Act 2,” and is not codified. Section 2 states a purpose of Act to include “effective and meaningful administrative monitoring by the Department of Public Safety of impaired driving offenders” and is not codified. Section 3 has no reference to impaired driving, but provides for notice given by the Department to those to whom notice is authorized or required.
¶ 23 Section 5 requires revoking driving privileges when a person receives a deferred sentence, conviction, or deferred prosecution for the eleven enumerated offenses listed in the statute.
¶ 24 Section 6 .provides for revocations based upon conviction, deferred sentence, or deferred prosecution unless the person has successfully completed, or is currently participating in, the Impaired Driver Accountability Program.”
¶ 26 Section 7 of the Act states the Department “is authorized” to make an agreement with a person whose license is revoked or suspended “for issuance of a provisional license that allows a person to drive between statutorily specific places,
¶26 Section 8 of the Act includes provisions relating to ignition interlock devices and restricting driving privileges based upon receipt of a report' of a “verified ignition interlock violation as defined by the Board of Tests for Alcohol and Drug Influence.”
¶ 27 Section 9 forbids a person to “knowingly authorize or permit” another person to operate a motor vehicle without an ignition interlock device, when the person is required to use such a device; and a violation of this section is defined as a misdemeanor punishable by fine or imprisonment.
¶ 28 Section 10 provides that breath shall be tested unless the officer requests a blood test.
¶ 29 Section 16 contains provisions for admission of test results in -any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol.”
¶ 30 Section 16 of the Act repeals
¶31 Legislation with multiple sections or provisions must be germane, relative, and cognate to a common theme and purpose.
¶32 Section 13’s license seizure and destruction upon arrest does not advance an articulated goal related to administrative monitoring of an impaired driving. New criminal liability for a breath test refusal is created by section 12, and while this subject relates generally to “impaired driving” its function -within the legislatively stated purpose of the Act, “administrative monitoring by the Department of Public Safety” is not present on the face of the Act. Section ll’s expanded scope in authorizing additional medical personnel to draw blood for a test upon request by an officer is related to “impaired drivers” in a general sense. However, the individual legislator’s calculus in deciding whether to vote for or against such language involves the legislator’s discretion concerning the professional expertise of the classes of individuals named for the statutory task and not the Department’s administrative monitoring of impaired drivers. Sections 13, 12, and 11 violate the single subject rule in Okla. Const. Art. 5 § 57 when measured against the other provisions of the Act.
¶ 33 Section 15’s creation of an evidentiary standard for admission of breath tests states it applies to “a proceeding arising out of of acts alleged to have been committed by a person ... under the influence of alcohol,” and this is sufficiently broad to include DPS administrative enforcement of the impaired driving statutes and administratively monitoring impaired drivers. However, the language is expressly made applicable to “the trial of any criminal action,” a forum outside the purview of the Department of Public Safety’s “administrative monitoring” of impaired driving. Section 16’s reach into District Court criminal proceedings is beyond administrative monitoring and violates the single subject rule in Okla. Const. Art. 5 § 57 when measured against the other provisions of the Act. ■
¶ 34 Section 4 of the Act clearly provides for notices to the Department when a person receives a deferred sentence or deferred prosecution for offenses other than those related to impaired driving. Section 4’s reach to include non-impaired offenses is beyond the stated purpose of administrative monitoring for impaired drivers and violates the single subject rule in Okla. Const. Art. 5 § 57 when measured against the other provisions of the Act. Section 4⅛ invalidity impacts both sections 5 and 6. Section 5 requires revocation upon receipt of a notice of a deferred sentence or a deferred prosecution. This provision appears to involve “administrative monitoring by the Department of Public Safety,” but enforcement is based upon notices required by section 4, and section 4 violates the single subject rule. Similarly, section 6 also relies upon these section 4 notices of deferred sentences and prosecution agreements.
¶35 Again, requiring notice of deferred sentences and prosecutions for crimes other than impaired driving clearly goes beyond the scope of an Act seeking to administratively monitor impaired driving offenders. The Act does not contain a severability clause, but 75 O.S.2011 § 11a
¶ 36 Generally, a severability analysis requires us to ask whether constitutional sections of an Act are capable of being executed in accoi-dance with legislative intent.
¶37 We conclude S.B. No. 643 violates Okla. Const. Art. 6 § 67 and Section 13 of S.B. No. 643 also violates Okla. Const. Art. 2 § 7. Because of these conclusions-we need not address petitioners’ additional claims that S. B. No. 643 impermissibly (1) revokes and modifies a driver’s license for non-impaired driving offences, or (2) creates an impaired driver diversion program, or (3) creates invalid bond requirements. The parties agree the Governor’s Executive Order 2017-19, was issued to administratively implement the new Act or a portion thereof. Due to our holding S.B. No. 643 violates Okla. Const. Art. 6 § 67 in its entirety, and leaving nothing for the Executive Order to enforce, we need not reach petitioners’ additional claims сharacterizing the Executive Order as a pocket veto,
Y. Conclusión and Effective Date of Court’s Opinion
¶38 The Court concludes the petitioners have standing. Two members of the Oklahoma Legislature possess constitutional legislative immunity from the legal liability and their motion to dismiss them as parties is granted. Section 13 of the Impaired Driving Elimination Act 2 violates Okla. Const. Art 2 § 7. Several provisions of the Impaired Driving Elimination Act 2 violate Okla. Const. Art. 6 § 57 and non-offending sections are not capable of being severed for independent enforcement. We conclude the Impaired Driving Elimination Act 2 is unconstitutional in its entirety, and we need not adjudicate petitioners’ remaining claims challenging either-the Act or the Governor’s Executive Order, Petitioners’ request for an injunction is denied.
¶ 39 The Court previously issued an order staying the application of the 2017 Impaired Driving Elimination Act 2, (S.B. No. 643). Hunsucker v. Fallin,
Notes
. Respondents rely in part on Kowalski v. Tesmer,
. State ex rel. Howard v. Oklahoma Corporation Commission,
. We also do not reach issues necessarily raised by petitioners' claim which relate to this Court’s jurisdiction to determine the proper application of a criminal statute to a party before this Court, including, but not limited to, the propriety of a declaratory and injunctive relief request to a court in a civil action to enjoin or prevent a criminal action.
. In some circumstances, economic loss occasioned by governmental regulation has been sufficient to show Article III standing in a federal court. Nova Health Systems v. Gandy,
. Gentges v. Oklahoma State Election Board,
. Gentges,
. State ex rel. Freeling v. Lyon,
. The response filed by Governor Fallin, et al., states that in 2015 over 13,000 requests were made by drivers for Department of Public Safety administrative hearings. Response (July 21, 2017) at p. 2.
. The concept of "adjective law" includes legal rules or procedure or practice as opposed to substantive law. Black’s Law Dictionary 62 (4th ed. 1951); Maurizi v. Western Coal & Mining Co.,
. Ethics Commission v. Cullison,
. Tulsa Industrial Authority v. City of Tulsa,
. Dank v. Benson,
. State ex rel. Oklahoma Bar Ass'n v. Mothershed,
. Petitioners’ Application to Assume Original Jurisdiction аnd Petition for Declaratory and In-junctive Relief, Okla. Sup. Ct. No. 116, 113 (June 21, 2017) at p. 2.
. Petitioners’ Reply to Respondents’ Response, etc., Okla. Sup. Ct. No. 116, 131 (August 11, 2017) at p. 11,
. Brock y. Thompson,
. Bell v. Burson,
The United States Const., Amend. 14; provides in pertinent part:
"Section 1. All persons born or naturalized in the United States, and subject to the' jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges,or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ...”
. Bell,
. Bell,
. Price v. Reed,
. Okla. Const. Art. 2, § 7 provides that: "No person shall be deprived of life, liberty, or property, without due process of law.”
. State ex rel. Bd of Regents of University of Oklahoma v. Lucas,
. 47 O.S.Supp.2016 § 6-303 (G):
G. It shall be a misdemeanor punishable by imprisonment for not less than seven (7) days nor more than six (6) months, or by a fine of not more than Five Hundred Dollars ($500.00), or by both such fine and imprisonment, for any person to apply for a renewal or a replacement license to operate a motor vehicle while the person's license, permit or other evidence of driving privilege is in the custody of a law enforcement officer or the Department. A notice regarding this offense and the penalty therefor shall be included on the same form containing the notice of revocation issued by the officer.
. S. B. No. 643, 5, amending
A. The Department of Public Safety shall revoke the driving privilege of any person, whether adult or juvenile, who, in any municipal, state or federal court within the United States, receives a deferred sentence, or a conviction, when such conviction has become final, or a deferred prosecution, for any of the following offenses:
1. Manslaughter or negligent homicide resulting form the operation of a motor vehicle;
2. Driving, operating or being in actual physical control of a motor vehicle while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, or any offense in subsection A of Section 11-902 of this title;
3. Any felony during the commission of which a motor vehicle is used;
4. Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another;
5. Perjury or the making of a false affidavit or statement under oath to the Department under the Uniform Vehicle Code or under any other law relating to the ownership or operation of motor vehicles;
6. A misdemeanor or felony conviction for unlawfully possessing, distributing, dispensing, manufacturing, trafficking, cultivating, selling, transferring, attempting or conspiring to possess, distribute, dispense, manufacture, traffic, sell, or transfer of a controlled dangerous substance as defined in the Uniform Controlled Dangerous Substances Act while using a motor vehicle;
7. Failure to pay for gasoline pumped into a vehicle pursuant to Section 1740 of Title 21 of the Oklahoma Statutes;
8. A misdemeanor conviction for a violation of Section 1465 of Title 21 of the Oklahoma Statutes;
9. A misdemeanor conviction for a violation of Section 609 of Title 37 of the Oklahoma Statutes;
10. Failure to obey a traffic control device as provided in Section 11-202 or 11-703 of this title when such failure results in great bodily injury to any other person; or
11. Failure to stop or to remain stopped for school bus loading or unloading of children pursuant to Section 11-705 or 11-705.1 of this title.
B.The first license revocation under any provision of this section, except for paragraph 2, 6, 7 or 11 of subsection A of this section, shall be for a period of one (1) year. Such period shall not be modified.
C. A license revocation under any provision of this section, except for paragraph 2, 6, or 7 of subsection A of this section, shall be for a period of three (3) years if a prior revocation under this section, except under paragraph 2 of subsection A of this section, commenced within the preceding five-year period as shown by the records of the Department. Such period shall not be modified.
D. The period of license revocation under paragraph 2 or 6 of subsection A of this section shall be governed by the provisions of Section 6-205.1 of this title.
E. The first license revocation under paragraph 7 of subsection A of this section shall be for a period of six (6) months. A second or subsequent license revocation under paragraph 7 of subsection A of this section shall be for a period of one (1) year. Such periods shall not be modified.
F. The first license revocation under paragraph 11 of subsection A of this section shall be for a period of one (1) year. Such period may not be modified. Any appeal of the revocation of driving privilege under paragraph 11 of subsection A of this section shall be governed by Section 6-211 of this title.
G. As used in this section, "great bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
. Historically, a driver's license seizure was part of a civil regulatory/administrative proceeding. Price v. Reed,
. S.B. No. 643, 8 (B), amending 47 O.S.2011 § 6-212.3, as amended by Section 2, Ch. 393, O.S.L. 2013 (47 O. S. Supp.2016, § 6-212.3): "The Department of Public Safety may- revoke, suspend or restrict the driving privileges of the person upon receipt of a report of a verified ignition interlock violation as defined by the Board of Tests for Alcohol and Drug Influence.”
. Torres v. Seaboard Foods, LLC,
. The receipt/temporary license given by the arresting officer appears to be used by the Act as a triggering event for a driver's fifteen calendar days to request participation in the Impaired Driver Accountability Program to be created by June 30, 2018. See S.B. No. 643, § 7 (F)(1) ("The Department may enter into an IDAP program agreement with a person if: (1) The Department receives the request for IDAP participation pursuant to this section within fifteen (15) calendar days from the date reflected on the dated receipt issued by the officer to the person pursuant to subsection B of Section 754 of this title, on the form provided by the Department...."). No argument was made concerning why a notice to a driver used for commencing time for requesting participation in the program requires seizure and destruction of that person’s license.
.Okla. Const. Art. 5 § 57:
Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in •its title,, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is- revived, amended, extended, or conferred shall be re-enacted and published at length; Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the laws as may not be expressed in the title thereof. ' ■
. S. B. No. 643, § 3, amends 47 O.S.2011 § 2-116.
. S. B. No. 643, § 4, amends 47 O.S.2011 § 6-204.
. S. B. No. 643, § 5, amends 47 O.S.2011 § 6-205, as amended by section 1, Ch. 279, O.S.L. 2013 (47 O.S.Supp. 2016 § 6-205).
. S. B. No. 643, § 5, amending 47 O.S.Supp. 2016 § 6-205 (A)(2).
. S. B. No. 643, § 6, amends 47 O.S.2011 § 6-205.1, as amended by section 1, Ch, 393, O.S.L. 2013 (47 O.S.Supp. 2016 § 6-205.1).
. S. B. No. 643, § 7, amends 47 O.S.2011 § 6-212, as amended by section 3, Ch. 97, O.S.L. 2015 (47 O.S.Supp. 2016 § 6-212).
. Due to our holdings herein we need not reach the issue raised during oral argument concerning a statutory right created under the new Act effective November 1, 2017 to not have a license revoked based upon a driver’s participation in an administrative program which may not be created until several months after creation of the statutory right.
. See note 28, supra.
. S. B. No. 643, § 8, amends 47 O.S.2011 § 6-212.3, as amended by section 2, Ch. 393, O.S.L. 2013 (47 O.S.Supp. 2016 § 6-212.3).
. S. B. No. 643, § 9, amends 47 O.S.2011 § 11-902a.
.S. B. No. 643, § 10, amends 47 O.S.2011 § 751.
. S. B. No. 643, § 11, amends 47 O.S.2011 § 752. '
. S. B. No. 643, § 12, amends 47 O.S.2011 § 753, as amended by section 1, Ch. 131, O.S.L. 2015 (47 O.S.Supp. 2016 § 753).
. S. B. No. 643, § 13, amends 47 O.S.2011 § 754.
. S. B. Nq. 643, § 14, amends 47 O.S.2011 § 754.1, as amended by section 4, Ch. 393, O.S.L. 2013 (47 O.S.Supp. 2016 § 754.1).
. S. B. No. 643, § 15, amends 47 O.S.2011 § 756.
. Fent v. Fallin,
. Fent v. Fallin,
. Fent v. Fallin,
. Douglas v. Cox Retirement Properties, Inc.,
. Fent v. State ex rel. Oklahoma Capitol Improvement Authority,
.75O.S.2011 § 11a:
In the construction of the statutes of this state, the following rules shall be observed:
1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, the provisions of every act or application of the act shall be severable. If any provision or application of the act is found to be unconstitutional and void, the remaining provisions or applications of the аct shall remain valid, unless the court finds:
a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or
b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
2. For acts enacted prior to July 1, 1989, whether or not such acts were enacted with an express provision for severability, it is the intent of the Oklahoma Legislature that the act or any portion of the act or application of the act shall be severable unless:
a. the construction of the provisions or application of the act would be inconsistent with the manifest intent of the Legislature;
b. the court finds the valid provisions of the act are so essentially and inseparably connected with and so dependent upon the void provisions that the court cannot presume the Legislature would have enacted thé remaining valid provisions without the void one; or
c. the court finds the remaining valid provisions standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
. Thomas v. Henry,
. Arkansas Valley State Bank v. Phillips,
. Thomas v. Henry,
. See, e.g., S.B. No. 843 § 14, referencing modification under S. B. No. 643, § 6, amending 47 O.S.Supp. 2016 § 6-205.1.
. Fent v. Fallin,
. A bill does not become law when a Governor creates an impermissible pocket veto of a substantive (non-appropriations) bill by giving a partial or qualified approval of the bill. Johnson v. Walters,
. Okla. Const. Art. 4 § 1:
The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as-provided in this Constitution, the Legislative, .Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.
. In re Initiative Petition No. 397, State Question No. 767,
. • The Court possesses judicial discretion to grant temporary relief or relief on the merits, with an opinion to follow, in order to protect the rights of parties pending resolution of a judicial controversy when a short period of time occurs between oral argument and the time an event will occur concerning the merits of the controversy. In re Initiative Petition No. 314,
. In re Guardianship of Berry,
Concurrence Opinion
with whom Gurich, V.C.J., and Winchester, J,, join, concurring in part and dissenting'in part: •
¶ 1 Our Constitution grants the Court the power to decide justiciable cases — i.e., live controversies where there is a plaintiff with standing and an issue that is ripe for review. This limitation is a crucial component of the separation of powers between the co-equal branches of our government. It is what keeps our non-political branch out of the business of resolving policy disputes.
¶ 2 Because the litigants who bring it lack standing under our well-accepted three-part test (no member of the Court argues otherwise), this matter does not meet the constitutional standard for justiciability. The Court nonetheless invokes a boundless “public importance” exceptiоn to our normal standing rules so that it may assume jurisdiction and declare SB 643 unconstitutional. In so doing, the Court disregards constitutional limits on its jurisdiction and does damage to the separation of powers between the co-equal branches of government. I respectfully dissent, except to that part of the judgment correctly dismissing the claims against the legislative Respondents.
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¶3 The Court grants standing to the DUI attorneys who challenge SB 643 based on what it calls its “discretion to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.”
¶'4 First, the attorneys claim that the new law might harm them in the future if they decide to drive drunk, if they happen to be arrested for doing so, and if they are then charged with driving under the influence. This is precisely the sort of remote, hypothetical, “future eventuality” that we have repeatedly said does not give rise to an injury in fact.
¶ 5 Second, they claim that the new law might 'harm unidentified 'members of the public who also might choose to drive drunk, who might bo, arrested for drunk driving, and who then might choose to retain the Petitioners as counsel. This claim not only suffers from the same imminence problem as their first claim, but also has the additional fatal defect of being an attempt to vindicate vicariously an injury to a third party.
¶ 6 Third, the attorneys claim that the new law might cause them a decrease in business, presumably by reducing the number of administrative hearings they might have the opportunity to litigate. But we have never recognized standing in an attorney bn the basis that a change in the law might reduce their business. This is so because an attorney has no “legally protected interest” in the law remaining static for the benefit of the attorney’s practice.
¶7 To .this point, we quite recently reaffirmed our adherence to the rale that “[t]o be appropriate for judicial inquiry, a controversy must be ... definite [and] concrete.”
B.
¶8 The Court doesn’t bother to analyze these claims, and understandably so; they fail our standing test by every measure. The Court instead focuses solely on the DUI attorneys’ claim that they possess “public interest” standing. Pointing to comments made at oral argument about “the great number of Oklahoma citizens in all counties of the State subject to the ... new Act,” and “the negative consequences attendant to enforcing alleged unconstitutional provisions,” the Court concludes that the matter is publici juris.
¶ 9 Let that sink in. The Court believes it can reduce to nil “the irreducible constitutional minimum” of standing anytime it is presented with two parties disagreeing over important policy considerations. In other words, the Court can disregard constitutional limits on its jurisdiction anytime it is presented with precisely the type of policy dispute that those constitutional limits are designed to bar it from deciding. But nothing in our Constitution permits us to assume jurisdiction over a case merely because the issue it presents is “important,” and the Court’s invocation of the publici juris standard as a measure of justiciability is without precedent.
¶ 10 The Court cites two cases in support of its claim of unfettered “discretion to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.”
¶ 11 State ex rel. Howard v. Oklahoma Corporation Cоmmission, meanwhile, presented a highly unusual fact pattern that dictated its sui generis result.
¶ 12 The Court first rejected the Attorney General’s claim that the legislators lacked standing, finding that the legislators possessed “an interest in vindicating the State Legislature’s exercise of its power, sought to be nullified by the Attorney General’s opinion in question.”
¶ 13 Nothing in State ex rel. Howard stands for the proposition that the mere presence of important “competing policy considerations” allows the Court to grant standing to those who otherwise lack it. Indeed, the Court found that the suing legislators possessed standing to vindicate their interests as legislators in having the State’s laws enforced. The only question was whether state law required that the Attorney General pursue that interest on their ; behalf. The “competing policy considerations” the Court described were the policy concerns relating 'to who ought to bring such a suit — -the legislators or the Attorney General — and not the competing policy considerations raised by the underlying ’ merits question. The result the Court reached, meanwhile, ensured that the matter wouldn’t evade judicial review — a concern not present in this case.
f 14 These cases do not compel today’s decision, nor is today’s outcome a logical extension of those cases; today’s decision is an outright abandonment of any pretense that the Constitution limits the Court’s jurisdiction in any meaningful way. Thé Court treats our “irreducible” jurisdictional rules as mere technical requirements that sometimes hamper its ability to be the final arbiter of the thorniest issues facing our State. But when we say that a plaintiff must have standing in order to bring suit, we aren’t describing, a limitation for limitation’s sake; we’re talking about a key structural feature of our Constitution designed to maintain the separation of powers between' the. co-equal branches of government. Our Constitution requires that “the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others,”
¶ 16 Our Constitution empowers us tо be judicial, but with that power comes the obligation to be judicious.
II.
¶ 16 The Court’s decision on the merits is no less problematic. The Court invokes Article V, Sectión 57’s single-subject rule as a basis- for invalidating all of SB 643. This shouldn't come as a surprise; our increasingly permissive standing rules and amorphous single-subject (and special-law) jurisprudence have created a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature’s and People’s laws so long as someone files the proper papers in the clerk’s office to initiate suit — this despite the fact that the single-subject rule was never intended “to be so exactingly enforced and in such technical manner as to cripple legislation.”
¶ 17 In concluding otherwise, the Court first errs by misidentifying SB 643’s subject. The Court points to a portion of the Act’s stated purpose (“administrative monitoring by the Department of Public Safety”) as the reference point for its single-subject analysis.
¶ 18 The Court begins with section 13 of the Act, which authorizes license seizure and destruction when a person is arrested for impaired driving or where a person arrested on suspicion of impaired driving refuses to take a breath or blood test.
■ ¶ 19 The same is true for section 12, which makes it a misdemeanor to refuse to take a breath test Upon suspicion of impaired driving.
¶ 20 Section 11, meanwhile, expands the class of persons eligible to perform blood tests on suspected impaired drivers to include EMT’s and paramedics.
¶ 21 Section 15 establishes certain procedures for introducing the results of an alcohol-concentration test as evidence in proceedings pertaining to impaired driving.
Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance ... evidence of the alcohol concentration in the blood or breath of the person as shown by analysis of the blood or breath of the person performed in accordance with [applicable law] ... is admissible.40
Again, even assuming the Court is correct in defining the subject of the Act more narrowly as the “administrative monitoring of impaired driving,” the Court admits that section 15 “is sufficiently broad to include DPS administrative enforcement of the impaired driving statutes and administratively monitoring impaired drivers.”
¶ 22 This conclusion is unsupportable. Section 15 — like the rest of this bill — is amenda-tory; it amends 47 O.S. § 756, which already applies to both criminal and administrative proceedings related to impaired driving. Indeed, the above-quoted portion of subpart A exists as part of 47 O.S. § 756 and was unchanged by the Act.. SB 643 merely adds subpart D, which lists-things that may be offered as proof that a breath test was “validly administered”; subpart -E, which prohibits reference to measurement uncertainty when admitting breath or blood tests; and subpart F,, which requires the district attorney to share documents pertaining to the maintenance of the breath-test instruments and mаkes the persons responsible for such logs available to testify. Nothing added by SB 643 expands the reach of 47 O.S. § 756 into proceedings it didn’t already, reach. In fact, only subpart D even references the scope of the law, and merely parrots the language used in the preexisting subpart A: “Upon the trial of any criminal action or proceeding arising out' of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol ... .”
¶23 The Court employs similar logic to invalidate section 4, which requires DPS to now receive notice of not just convictions, but also deferred sentences and deferred prosecution agreements “for any offense for which' this title makes mandatory the revocation of the driving privilege.”
¶ 24 The Court concludes its single-subject analysis with sections 6 and 6 of the Act, which respectively define the offenses for which driving privileges are revoked and prescribe the length? of those revocations.
¶ 25 SB 643 doesn’t violate the single-subject rule; its title adequately describes its effect, and the entirety of the bill relates to impaired driving. There is nothing to suggest that this overwhelmingly popular piece of legislation
III.
¶ 26 Despite having deemed the law unconstitutional in its entirety for violating the single-subject rule,
. ¶ 27 First, because, the claim wasn’t raised in the Application, wasn’t briefed, and wasn’t supported by a single citation , to substantive due process authority, we would normally refrain from deciding the case on that basis — fair process demands as much.
¶ 28 Second, it is “[t]he party seeking a statute’s invalidation as unconstitutional [that] has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Constitution.”
¶ 29 Third, substantive due process is typically invoked to protect unenumerated “fundamental” rights,
¶ 30 Lastly, even if the DUI attorneys had a protected interest in them plastic license card, it is possible to conceive of legitimate reasons why the Legislature would allow for its seizure without also suspending the privilege to drive. For example, the Legislature might have concluded that the prior statutory scheme, which caused automatic suspension of driving privileges unless the arrestee requested an administrative hearing, was too costly in light of this Court’s recent decision requiring that those administrative hearings occur at a faster pace.
¶ 31 As best I can tell, the United States Supreme Court has in 227 years invalidated only a single law applying rational basis review to a substantive due process claim
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¶ 32 For .these reasons, the application to assume original jurisdiction should be denied. I respectfully dissent to all of the judgment except that part dismissing the legislative Respondents.
. Majority Op. If 5.
. E.g., Toxic Waste Impact Grp., Inc. v. Leavitt,
. Toxic Waste Impact Grp.,
. Hendrick v. Walters,
. Worth v. Seldin,
. See Toxic Waste Impact Grp.,
. See Barzellone v. Presley,
. Toxic Waste Impact Grp.,
. To that point, this Court has in the past said that "[sjpeculation as to which of many paths the law in a given area will take in the future is a transparent veil behind which people act out their own policy preferences,” and that " '[gjuesses’ about the future development of any rule of law have never been an acceptable rule of decision in Anglo American jurisprudence.” In re Initiative Petition No. 349, State Question No. 642,
. Richardson v. State ex rel. Okla. Tax Comm'n,
. Id.
. Majority Op. ¶¶ 6-7.
. Id. ¶ 5 (quoting Gentges v. Okla. State Election Bd.,
. Id. ¶5 & n.5 (citing Gentges,
.
. Id. ¶¶ 10-12,
. For example, no one would seriously argue that Gentges would have possessed standing had she been a resident of Texas or not otherwise been registered to vote in Oklahoma.
.
. Id. ¶ 34,
. Id. 1135,
. Id.
. Id. ¶¶ 37-38,
. Okla. Const. art. IV, 1.
, The Federalist No. SI, at 319 (James Madison) (Clinton Rossiter ed„ Signet Classic 2003) (1788) ("If men were angels, no government would be necessary. ... In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”).
. Brooks v. State,
. Douglas v. Cox Ret. Props., Inc.,
. E.g., Majority Op. ¶ 32 (quoting Impaired Driving Elimination Act 2 [hereinafter IDEA2], ch. 392, § 2, 2017 O.S.L. 1560, 1561-62).
. Okla. Const. art. V, § 57 -("Every act of the Legislature shalhembrace but one subject, which shall be clearly expressed in its title .... ”).
. IDEA2, 2017 O.S.L. at 1560-61.
. Id. § 13; 2017 O.S.L. at 1576-78 (to be codified at 47 O.S. § 754).
. Majority Op. ¶ 32.
. IDEX2, sec. 12, § 753(B), 2017 O.S.L. at 1576 (to be codified at 47 O.S. § 753).
. Majority Op. ¶32.
. IDEA2, sec. 11, § 752(A), 2017 O.S.L. at 1573 (to be codified at 47 O.S. § 752).
. Majority Op. ¶ 32; OA at 26:29 (counsel for Petitioners, in response to a question about how the section relates to the subject of impaired driving, conceded that it "actually would be related to impaired driving in that when there’s an accident, if they believe somebody is driving under the influence, it just provides for an EMT to be one of the designated people to draw blood in that instance”).
. Majority Op. ¶ 32.
. But see Bond v. Phelps,
. See, e.g., 5 O.S.2011 § 1 (listing persons disqualified from practicing law); 10A O.S.Supp. 2017 § 1-1-105(21) (listing those that qualify as a “deprived child”); 12 O.S.Supp.2017 § 95 (listing the limitation periods for various causes of action); 12 O.S.2011 § 134 (listing the various venues in which it is appropriate to sue a domestic corporation); 12 O.S.Supp.2017 § 2004(C) (listing methods to effectuate service in a civil proceeding); id. § 2023(B) (listing the kinds of cases appropriate for class-action treatment); 12 O.S.2011 § 2103 (listing the tribunals and decisions to which the rules of evidence apply); 20 O.S.Supp.2017 § 3.1 (listing the salaries for the various members of this Court); 21 O.S.Supp. 2017 § 701.7(B) (listing all the offenses that qualify as first degree, "felony” murder); 31 O.S.2011 § 1 (listing all property exempt from attachment and forced sale); 51 O.S.Supp.2017 § 24A.3(2) (listing public bodies to which the Open Records Act applies); 63 O.S.Supp.2017 §§ 2-204, 2-206, 2-208, 2-210, 2-212 (listing the scheduled "controlled dangerous substances”).
. IDEA2, § 15, 2017 O.S.L. at 1579-80 (to be codified at 47 O.S. § 756).
. Id. sec. 15, § 756(A), 2017 O.S.L. at 1579.
. Majority Op. ¶ 33.
. Id.
. IDEA2, sec. 15, § 756(A), (D), 2017 O.S.L. at 1579.
. See 47 O.S.2011 § 756(A) ("Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance ....”). Indeed this language dates back to the original version of section 756 enacted in 1967. See Act of April 19, 1967, ch. 86, § 6, 1967 O.S.L. 135, 136-37 ("Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or intoxicating liquor ....”).
.See Ethics Comm'n of State of Okla. v. Cullison,
. IDEA2, sec. 4, § 6-204(0, 2017 O.S.L, at 1562 (to be codified at 47 O.S. § 6-204).
. Majority Op. ¶ 34.
. 47 O.S,Supp.2017 § 6-205(A)(2).
. 47 O.S.2011 § 6-204.
. 47 O.S.Supp.2016 § 6-205(A)(l), (3)-(ll) (requiring revocation for committing a felony while using a vehicle, failing to pay for gasoline pumрed into a vehicle, failing to stop for a school bus loading or unloading children, etc.),
. IDEA2, §§ 5-6, 2017 O.S.L. at 1562-66.
. The bill passed the Senate by a vote of 33 to 9, ' and the House by a vote of 58 to 26. Senate Journal, 56th Leg., 1st Reg. Sess. 1203 "(Okla. 2017); House Journal, 56th Leg., 1st Reg. Sess. 1350 (Okla. 2017).
. Brooks v. State,
. Majority Op. ¶ 2 ("We hold the [Act] is unconstitutional -in its entirety due to violating the single subject rule in Okla. Const. Art. 5 § 57. We [also] hold one provision of the Act, section 13, violates the Due Process Clause in Okla. Const. Art. 2 § 7.”).
. Id. ¶20.
. See Pet’rs’ Appl. to Assume Original Jurisdiction ¶ 10, at 4 (identifying the due process question presented as "whether the Act’s requirements of the taking and destroying of an individual’s driver’s license without due process of law” violates the Due Process Clause.); id. ¶25, at 8 (”[T]he Act requires DPS to destroy the license upon receipt. The Act also repeals all hearing requirements from the statute. Since there is no automatic revocation of the license under SB 643 there is no need to take an individual's property and certainly no reason to destroy it, both of which occur without the due process protections of notice and an opportunity to be heard ."(citing Price v. Reed,
. The Court's solé basis for insisting that a substantive due process claim was raised is a line in the Application stating that "there is no need to take an individual’s property and certainly no reason to destroy it.” Majority Op. ¶ 13. The Court lifts this line in' the Application out of context, omitting the latter half of the sentence, which makes clear the DUI attorneys are complaining that the deprivation occurs "without the due process protections of notice and an opportunity to be heard,” and which is followed by a citation to a case involving no substantive due process claim or discussion. See Pet’rs' Appl, to Assume Original Jurisdiction ¶25, аt 8 (citing Price,
. Additionally, because "the adversary system is a cornerstone of our jurisprudence,” the prece-dential value of a case "is diminished by the fact that the case was submitted without argument, or on scanty or insufficient argument.” Bryan A, Garner et al. The Law of Judicial Precedent 226 (2016); see also McCutcheon v. Fed. Election Comm’n, — U.S. -,
. Majority Op. ¶ 20.
. LaFalier v. Lead-Impacted Comtys. Relocation Assistance Trust,
. Jacobs Ranch, L.L.C. v. Smith,
. Davis v. Fieker,
. See, e.g., Usery v. Turner Elkhorn Mining Co.,
. Washington v. Glucksberg,
. See, e.g., Lawrence v. Texas,
. 47 O.S.Supp.2016 § 6-209(D).
. See Majority Op. ¶ 15 & n.20 (citing Price v. Reed,
. At oral argument, counsel for Petitioners agreed that under the new law the arrestee is "going to be given a piece of paper that is 45 days with no driving privilege lost, at all. ... They face no ramifications [to] their driving license until they plead to the charge down the road in the criminal case.” OA at 6:25. Under preexisting law, an impaired driver's plastic license was seized and his driving privilege was automatically revokеd after arrest unless he timely requested an administrative hearing. See 47 O.S,Supp.2016 §§ 6-205.1, 753; 47 O.S.2011 § 754. SB 643 thus changes the law in a manner that is favorable to arrestees because it allows the arrestee to retain his driving privilege pending resolution of his criminal case.
.Price,
. See Nichols v. State ex rel. Dep't of Pub. Safety,
. Gladstone v. Bartlesville Indep. Sch. Dist. No. 30 (1-30),
. Lawrence v. Texas,
. Gladstone,
. See Majority Op. ¶20; Torres v. Seaboard Foods, LLC,
.Fent v. Okla. Capital Improvement Auth.,
Dissenting Opinion
with whom GURICH, V.C.J. joins, dissenting:
¶ 1 I dissent to the majority opinion which prematurely strikes down the Legislature’s attempt to restructure the State’s impaired driving laws, 47 O.S.2011 § 517 et seq. I do not find that the plaintiffs in this case, attorneys who claim their business interests will be affected by the enactment Of the proposed laws, have -the requisite standing .to bring suit.
¶ 2 Today’s majority opinion strays far from our traditional' standing authority, stretching the publici juris standing doctrine well beyond the intent of the rule’s exception. As a result, the majority opinion will allow back-door lawsuits brought by attorneys to challenge any legislation, that might pоtentially impact their bottom dollar, all under the guise of a public interest controversy. The majority fails to recognize that the plaintiffs in this case have no directly traceable interest to the rights alleged to be violated by the proposed statutes. Indeed, the plaintiffs’ own, admitted personal interest in the case is a hypothetical, monetary loss reliant on the retention of future, potential clients who illegally drive while impaired in this State. In my opinion, this is insufficient to constitute the necessary, directly traceable interest to confer standing..
BACKGROUND
¶3 The State’s current impaired driving laws have created an administrative nightmare for the Department of Public Safety (DPS), which is extremely, costly and inefficient for the State, but beneficial to attorneys hired by clients arrested for impaired driving to represent them in license revocation hearings before DPS. The Legislature, with the proposition of S.B. 643, created á new Act, the Impaired Driving Accountability Program (IDAP), to remedy the backlog of administrative hearings . by eliminating automatic license privilege revocations.
¶ 4 S.B., 643 eliminates the administrative backlog.by .removing the need for driver’s license revocation hearings and foregoing automatic suspensiqn of the driver’s license, instead deferring the decision on revocation until the driver’s criminal case is resolved or the driver under arrest enters an agreement with DPS for the placement of an ignition interlock device. Under such an agreement, the driver is allowed to continue to drive with an unrevoked license, in the form of a temporary receipt, so long as the interlock device is installed in their ear. If the driver successfully completes the interlock device program, full, unrestricted driving privileges will be restored, no license revocation will appear on the driver’s record, and the driver will not be charged a license reinstatement fee. If the driver refuses to enter the IDAP agreement, the temporary license will remain in effect until the driver’s criminal case is resolved. Also new under the proposed statute^, a driver -will face a misdemeanor charge if he or she refuses to take State’s blood or breath test.
DISCUSSION
¶ 5 Standing refers to a party’s legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd.,
¶ 6 The U.S. Supreme Court has defined the question of standing as whether “a party has a sufficient stake in an otherwise justicia-ble controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton,
¶ 7 As a general rule, a litigant l^cks standing to assert the rights of others. See United States Dep't of Labor v. Triplett,
¶ 8 The U.S. Supreme Court does not look favorably on third party standing and has imposed a more stringent exam when standing is sought in such cases. Kowalski v. Tesmer,
¶ 9 In Kowalski v. Tesmer,
¶ 10 A similar hypothetical injury was deemed insufficient by the Court in Diamond v. Charles,
¶ 11 Our own Court has recognized that standing must be predicated on cognizable, economic harm when a legislative act is challenged as unconstitutional or invalid. Osage Nation v. Board of Commissioners of Osage County,
¶ 12 Typically, our publid juris standing cases have involved situations such as where taxpayers were challenging government expenditures, which is not the ease herein. We have, however, recognized judicial discretion in select cases, not involving government expenditures, to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance. See Gentges v. Okla. State Election Bd.,
¶ 13 Here, the plaintiffs are unable to claim that they are the object of the challenged action and any judgment regarding the statute’s constitutionality would only potentially affect them indirectly. The admitted and overriding reason for the involvement herein of the plaintiffs is their alleged potential, pecuniary loss at the abolition of administrative hearings for driver’s license revocations. This claimed injury is as speculative and hypothetical as the injury alleged in both Kowalski and Diamond and should not serve as any basis upon which to confer standing.
¶ 14 The majority emphasizes that granting standing to plaintiff attorneys in this case would benefit the community as a whole. I find it difficult to see how an attorney making an alleged profit on potential, future criminal defendants is a benefit for the public interest or community as a whole. Not only is there a complete absence of evidence to show that the plaintiffs would in fact earn less income as a result of the proposed statutes, the plaintiffs cannot even point to a named client who has been or is threatened by the proposed statutes. Significantly, there is no reason why an alleged future client could not assert his or her own claim. This fact alone should be sufficient to deny standing to plaintiffs.
¶ 15 Even if we are to assume standing in this ease as the majority urges with' its convoluted reasoning, the plaintiffs cannot escape the requirement of an actual, justiciable controversy. In actions seeking declaratory relief, the existence of a justiciable controversy is paramount. In Knight ex rel. Ellis v. Miller,
The requisite precedent facts or conditions which the courts, generally hold must exist in order that declaratory relief may be obtained may be summarized аs follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) - the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protect[a]ble interest; and (4) the issue involved in the controversy must be ripe for judicial .determination, (emphasis added).
Id, at ¶ 8,
¶ 16 If courts were to decide hypothetical controversies, it would take the judiciary beyond the bounds of authorized judicial action and offend the basic principles of the separar tioh of powers. See Dank v. Benson,
CONCLUSION
¶ 17 This case is a classic example of placing the cart before the horse. Here, the plaintiffs, as third parties to the claimed constitutional violations of the proposed S.B. 643, have suffered no actual, present injury and it is unknown how, if at all, their income would be affected by the implementation of the proposed statutes. Enlarging public interest standing to, allow, attorneys to challenge a proposed law’s possible application to a potential, future client flies in.the face of U. S. Supreme Court case law, as well as our own, requiring strict adherence to the justici-ability of a case.
¶ 18 The relaxation of standing requirements such as is promoted by the majority opinion will result in a standardless evaluation of standing. Future standing queries will be left to a subjective, case by case assessment by a court regarding the claims it deems sufficiently significant to merit review. Standing jurisprudence has long provided a fundamental limitation on government authority that cannot be disregarded based on discretion. I respectfully dissent.