*1 fact question sured motorist. We held that this did bar because the of whether an elev- plaintiffs en-year not defeat the uninsured motorist negligent old is in the first instance against Barfield, claim his Here, insurer. we however, question is a fact. that an motorist insurer held uninsured does three-year negligence old child was free of as step not into uninsured tortfeasor’s shoes a matter of law. We also have considered immunity and that from suit of cowork- jurisdictions the other cases from other cited Compensation under er the Workers’ Act did by Martin unpersuasive Ms. and find them as plaintiffs defeat not uninsured motorist injury arising none of them involved from explained meaning claim. We three-year of a acts old. “legally term entitled to recover” the fol- CERTIORARI PREVIOUSLY GRANT- lowing language in Uptegraft, both and Bar- ED; COURT OF APPEALS VA- OPINION
field: CATED; JUDGMENT OF DISTRICT “legally The words entitled to recover” COURT AFFIRMED. simply mean that the insured must be able part to establish on the the unin- fault gives sured motorist which rise to dam- WILSON, C.J., LAVENDER, ALMA ages ... SIMMS, OPALA, JJ„ HARGRAVE and [Emphasis P.2d added.] 662 at P.2d concur. said, at 1112. In Uptegraft “In Barfield V.C.J., and the at bar KAUGER, J., case is at SUMMERS, tortfeasor fault responsible injury protected for the but concur in result. [Emphasis a statute.” added.] Clearly, n. there must be a tortfeasor, someone who committed a
wrong which from the insured has suffered
damage, coverage before uninsured motorist Here, play.
can come into there was no three-year
tortfeasor because old Katie Mar- was, law,
tin as matter of innocent of
wrongdoing, young as she was too to under- moving
stand the risk that shift lever
might injure cause the car to roll Betty
Martin. protected liability
Katie Martin is from wrong. here she because committed no This KEATING, Oklahoma; Frank Governor of entirely different situation from that Morgan, Representative; Fred Uptegraft before us in Barfield. Hastings, Representative, Chris tortfeasor, both of there those cases was a Petitioners, but statute immunized him liability from for conduct that otherwise would have been Here, however, actionable. no tort has been committed, there can be so no uninsured mo- JOHNSON, Speaker Glen D. of the Okla coverage.
torist Representatives; homa House of Strat Taylor, Tempore ton President Pro Ms. Martin cites Sumwalt v. Allstate In- Senate; Terry Tyree, the Oklahoma Company, surance 12 Ohio St.3d capacity Acting (Ohio his Commissioner 1984), in N.E.2d 544 Ohio Fund; the State Insurance Ma Carlisle Supreme uninsured Court held that an mo- III; Rainbolt; brey, Tholen; H.E. Phil rely parent- torist carrier could Nobles; Fisher; doctrine, immunity Mike Senator Ted child Sena although the in- Easley; Larry injured tor Kevin negligence sured had Senator Dicker been son; Representative McCorkell; unemancipated eleven-year her old Don child. Hamilton; distinguishable Representative Sumwalt is from case at James E. *2 Settle; Bob Hol Representative Bill
lander, capacity Di as Executive in his Firefighters of the Oklahoma
rector Board; Meri Retirement
Pension Torbett, Respon Lacey; and Gene
dith
dents.
No. 86628.
Supreme of Oklahoma. Court
May Fuller, Heaton, Pomeroy, Spe- Tubb &
Joe Governor, City, cial to the Oklahoma Counsel Reynolds, Ridings, Vogt & Morgan, Fred Hastings, City, Morgan, and Chris Oklahoma Tulsa, pro to the Gover- se Co-Counsel nor, Bartmess, Duchess General Counsel Governor, City, for Petition- Oklahoma ers. City, Loving, and Lee
Susan B. Oklahoma Slater, City, Respondents Johnson, Pro Speaker D. President Glen Taylor, Ted Tempore Senators Stratton Fisher, Easley Larry Dickerson Kevin McCorkell, Representatives Don James whose function is the missions execution аnd E. Hamilton and Bill Settle. administration of the law.1 Unconstitutional ity Legislature, by is also claimed when the Emerson, Counsel, C. Scott Chief Okla- statute, delegates of its own members Representatives, Respon- homa House of either the to exercise executive func D. Speaker dent Glen Johnson. *3 legislative, tions or the to exercise Ramsey, Attorney, Mark H. Senior Staff policy-making powers on Legis behalf of the Senate, Respondents Oklahoma for President as a as respondents lature whole. Sued are pro tempore Taylor Speaker Stratton and Speaker the of Rep the Oklahoma House of Glen D. Johnson. resentatives; Tempore the President Pro Solomon, Gladys Stephen Cherry, G. E. Senate; the Oklahoma three other State Solomon, Derryberry, Quigley, Blankenship Representatives and three other Senators eh, City, & Naif Oklahoma and Elizabeth Legislative who are members the Bond Bradford, Counsel, City, General Oklahoma (LBOC); Oversight Acting Commission the Terry for Respondents Tyree, Carlisle Ma- Fund; Commissioner of the State Insurance III, brey, Rainbolt, Phil H.E. Tholen and four Managers members of the Board of Mike Nobles. (BMSIF) (two ap State Insurance Fund Edwards, Murrah, Jr., pointed by Speaker Marc A.P. two Phillips the Pres Murrah, McCaffrey McVay Tempore); McFall & ident Pro Okla- the Executive Director City, Respondents Hollander, Firefighters homa for the Oklahoma Bob Pension and System; Lacey Retirement two Meridith and Gene Torbеtt. members of Firefighters the Oklahoma Pension and Re Williams, City, John Morris for Oklahoma (OFPRB), appointed by tirement Board one amicus curiae Oklahoma Education Associa- Speaker and one the President Pro tion. Tempore. We decline to assume Mildren, Abney, Neal, Riggs, Richard A. jurisdiction for the set reasons forth below. Turpén, Lewis, City, Orbison & Oklahoma for Employ- amicus curiae Oklahoma Public Petitioners attack as unconstitutional four Firefighters ees Association and Oklahoma statutory or pro- statutes schemes in this Association. O.S.1991, ceeding. They § claim 85 181a is to provides unconstitutional the extent it for
LAVENDER, Justice:
appointment
members
the BMSIF
Petitioners,
Speaker
Tempore.
the Governor
the State of
Pro
and President
Represen
Oklahoma and
O.S.Supp.1995, §
two State House of
49-100.3
claimed uncon-
tative
application
appoint-
members have filed an
as it provides
stitutional insofar
jurisdic
with
this Court
to assume
ment of members to the
OFPRB
Next,
requesting declaratory
Speaker
tion
or
Tempore.
other relief
and President Pro
determining
Legislature
Oversight
the Oklahoma Bond
and Reform
powers
Act, O.S.1991,
amended,
separation
seq.,
§
violates the
doctrine
695.1 et
as
contained
the Oklahoma Constitution
claimed unconstitutional
to the extent it
it, by
LBOC,
§
provides
currently
[OKLA.CONST. art.
when
up
1]
stat
made
enactment,
members,
utory
legislative
legislators
vests in itself or
six
engage
as
in the
functions,
leadership
authority
appoint
performance
to make
of executive
rather
legislative.2 Aternatively,
ments to executive branch
and com
than
petitioners
boards
provides:
Speaker
Tempore
OKLA.CONST. art.
2. The
and the President Pro
appoint
Legislative
each
three members
powers
government
The
of the State of
(LBOC).
Oversight
Bond
Commission
separate
Oklahoma shall be divided into three
(2).
695.4(A)(1)
O.S.Supp.1995, §
The
Executive,
departments:
Legislative,
The
Speaker
Tempore
and President Pro
are also
Judicial;
except
provided
as
in this Consti-
given
appointment
for one alternate
tution,
Executive,
Legislative,
and Judicial
each,
regular
who
member
is to serve when
departments
government
separate
695.4(B).
shall be
member is not available.
In view of
distinct,
legislative
and neither shall exercise the
leadership appointment
such
authori-
powers properly belonging
ty,
petitioners
appear
either of
oth-
note
also
to chal-
lenge
appointment authority
ers.
such
based
any
if any
powers
claim that
of the LBOC’s
that we make
decision of unconstitution-
nature,
ality
or,
determined
rather
at a
certain
effective
future date
executive,
un-
than
the LBOC would still be
appropriate
issuance of
withhold
writ
invalidity consisting of an
constitutional —the
Legisla-
give
until a
order
date certain to
improper
legislative power of
delegation of
cure
ture and Governor sufficient time to
Lеgislature
person
the whole
to that six
com-
unconstitutional
in the
claimed
defects
chal-
695.11A,
O.S.1991, §
Finally,
mission.
lenged legislation.
separation
claimed violative of the
bring
standing
claims
Governor
appointment
in providing for
doctrine
Magis-
matter on the basis he is the Chief
Oversight
members
the Council Bond
chief
trate and
executive officer OHahoma
(CBO) (a
being
Council that would
into
come
2], and,
6, §§
[OKLA.CONST. art.
1 and
LBOC or
the event either the
its counter-
such,
judicially cognizable
he has a
interest in
*4
part,
Oversight
the Executive Bond
Commis-
protecting
prerogatives
and functions of
unconstitutional)
sion,
by
are
found
Department
govern-
the Executive
of State
Speaker
Tempore,
and
Pro
when
President
insuring
Department
ment and
that another
power.
the CBO wields executive
It should
government
unlawfully
of State
does not
as-
petitioners
Attorney
noted that
cite
be
to
powers properly
sume or exercise
committed
90-31,
Opinion
generally
No.
General
Further,
Department.3
to
although
another
position
favorable
petitioners
to the
not presently
Governor does
claim he is
herein,
espoused
Legislature
ap-
but the
any
authority
imbued with
to
inherent
make
parently ignored
opinion
Attorney
this
boards,
the appointments to
etc. at
issue
General.
proceeding
in this
either under the OHahoma
In addition
to a declaration
constitution-
otherwise,
that
Constitution
he claims
his
invalidity,
request
petitioners
al
a furthеr
appointment
role
process
in the
under
declaration,
by applicable
if allowed
constitu-
6, §
provides
OKLA.CONST. art.
13 also
a
principles
prior
tional
and
of this
decisions
standing
basis for his
here.4 As to this latter
Court,
by
that
reason
status
defacto
position,
appeared
the Governor
to claim at
the various officers who are
to have
claimed
argument
oral
in this
that
matter
because
unconstitutionally appointed,
prior
been
all
6, §
gives
appointment
art.
him certain
by
respec-
actions taken
the officers or their
authority
vacant,
when an
becomes
board,
office
tive
council or commission are valid
upon
grant-
a determination that the statutes
binding against
and
constitutional infirmities
ing
legislative appointments
at issue
alleged in
here
proceeding, notwithstanding
this
legislative
Finally, petitioners
held to be unconstitutional and
request,
such infirmities.
again
by applicable
pass
legislation
if
passing
allowed
constitutional
failure
curative
Court,
muster,
principles
prior
and
decisions
might
of this
constitutional
he
himself be-
(4)
espoused
alleged
years
same view
as to the
exec-
other
the Senate for
term of four
to run
here,
utive entities
i.e.
exer-
concurrently
involved
the LBOC
with
the term of
Governor.
authority
legislative
cises
and
executive
leader-
provides:
§
art.
OKLA.CONST.
ship appointment
separation
to it violates the
Supreme
The
Executive
shall be vest-
powers doctrine.
Magistrate,
styled
ed in a Chief
be
who shall
“The Governor of the State of Oklahoma.”
provides:
§
3. OKLA.
art.
CONST.
A.
Executive
the state shall
provides:
art.
OKLA.CONST.
Governor,
Governor,
be vested in a
Lieutenant
The Governor
all
shall commission
officers
State,
Secretary
Inspec-
State Auditor and
by law. All
tor,
General,
not otherwise commissioned
com-
Treasurer,
Attorney
Super-
by
run
Instruction,
missions shall
in the name and
intendent of Public
Commissioner
Oklahoma,”
Labor,
authority of the "State of
be
Commissioner of
and oth-
Insurance
Governor,
signed by the
sealed with the Great
provided by
er officers
law and this Constitu-
Oklahoma,
tion,
by
of the State of
keep
Seal
and attested
each of whom shall
his office and
records,
Secretary
any
office
papers
State. When
shall
books and
seat of
vacant,
shall,
pro-
government,
perform
become
he
unless otherwise
shall
such duties as
law,
by
appoint
person
designated
pre-
be
in this
vided
fill such
Constitution or
vacancy,
scribed
who shall continue in office
law.
until a
Secretary
appoint
duly
ap-
B. The
of State
successor shall have been
elected or
shall be
qualified according
pointed,
ed
and with
Governor
the consent of
to law.
now,
authority.
appointment
should
come imbued with the
be assumed
and that
noted,
However,
as
the Governor does
declining
accomplish nothing,
to do so will
currently
any appointment authority
сlaim
causing delay
than
final
other
of a
decision
constitutionally
appears
and he
to admit that
expense
parties.
to the
adequate
legislation might
passed
curative
as to
might
Other than
how these bases
place
consistent with art.
13 that would
issue,
intrinsically
peti-
intertwine with the
appointment power
in others.
attempt
tioners make no real
to convince us
petitioners claim
The two House member
urgent
there is some
situation involved
standing
judicially
in-
cognizable
based on
this matter that would call
this
Court’s
proper
terest in
allocation of
be-
require
attention or
immediate
that would
Legislative
tween
De-
the Executive
fact,
speedy
determination
the case.
and,
partments
alternatively, a dilution or
posture
present
as
the case
delivered
impairment
their
vote
by petitioners, particularly
light
to us
improper
House
the claimed
members
request
their
that
own
we make
decision
delegation
legislative authority
prospective to a future
date
afford the
assume,
LBOC.
without
deciding,
We
Legislature
Governor
time
enact cura-
both
legislators
the Governor
the two
legislation
tive
should we decide one or more
standing
bring
proceeding.
have
challenged provisions
are unconstitu-
Petitioners,
support
position
their
*5
past
tional
the tacit
that
admission
ac-
grant original
we exercise our
discretion
appointments
tions of
officials
whоse
are
jurisdiction, rely
publici
doctrine of
challenged
by
are valid
virtue
their
juris in
great
that
matter is
this
imbued with
status, appears
claimed de
to counsel
facto
public importance involving a
question
against
any
a determination
is
need
there
relating
statewide
respective
concern
to the
view,
our
our
immediate attention.
al-
Legislative
of the Executive and
though
question(s) presented
impor-
government.
Branches of
that
The claim is
tant, petitioners have failed to show there is
public
controversy
go-
this
law
raises issues
immediacy
some
in
involved
this
ing to
govern-
the fundamental structure of
that
call
would
for this Court to exercise its
Although
ment
in Oklahoma.
the former
present
discretion
hear
the matter at
basis
primarily
upon,
is
relied
it
also
time.
original
claimed
jurisdic-
we should assume
petitioners
although
We first note that
upon
tion
superintending
based
our
control
point
why
of a
bypass
out reasons
agencies,
over
commissions and boards
order,
presented
they
district
is in
have
court
granted to
in
art
this Court OKLA.CONST.
argument
authority,
no
or
we
are aware
appear
argue
also
Petitioners
none,
jurisdic-
give
that would
us exclusive
eventually
up
because the matter will
end
Thus,
begin
this
tion of
matter.
our
appeal
Court
from a district court
this
any event,
analysis
assumption
jurisdiction
on the
determination
and we at that
our
legal questions
time will have
review the
this case
concurrent with that of a district
review, original
under
de novo standard of
court.5
Hughes,
This fact of
concurrent
with that
homa Natural Gas Co. v.
inapplicable
a district
case
(1950);
court makes
here the
Early m our State’s urged resolution tax and it was of use was the framers that this Court nized orderly manage to the fiscal was essentiаl primari intended Constitution the OHahoma Mason, and local budgeting of both State ment and ly appellate court. Jarman as an (1924). All of the above governmental entities. The 229 P. 102 Okla. immediacy some there was cases indicated stated Kitchens following was further need existed for so that a real McGowen, Syllabus by the involved controversy. As (Okla.1972): of the speedy determination Court above, have not petitioners here noted Supreme jurisdiction of the original any urgency or really attempted to show Court, with that of the when concurrent calling early decision immediacy for an court, as a primarily is intended district present case. this Court in the it will exercise by” service which “stand case, when, exigencies only from assumed Although we have so injury be done its refusal great will original to rule on the constitutionali actions rule would so flood to do. A different acts, doing so our basis for ty destroy its actions as court with speedy for a deter general public need court. efficiency appellate as an For question. mination of the constitutional Mathews, Mason, example, in rel. Babb v. State ex recognized in Jarman We also Syllabus P. First step litigants like to 134 Okla. that all supra, (1928), jurisdiction in a resort, thereby we assumed avoid into this Court of last stop seeking prohibition a writ of delay appeal, case expense and incident to ing the newly Tax Review from created Court of bypass of the ordi such reasons for but that Id., authority. P. at 352- exercising in a lower its nary process proceeding of first issue(s) involved court, normally a 353. noted that be considered We would not primary question of whether the to went to the for us to exercise our discretion reason (to remedy for provide act purposes at 464.6 A original jurisdiction. 229 P. grant *6 of a tribunal illegal tax levies and creation running through most fairly consistent theme relief) grant so jurisdiction power prompt were original has with cases where of our provisions clearly violative of constitutional that matter must assumed has been been actuality gave in no that the act involved public interest and there be affected with the on, to, any jurisdiction pressing need for nor conferred urgency or must be some at review to function all the court of tax early of the matter. See an determination Id., P. at 356. provisions. the act’s Com under e.g. Oil Co. v. Oklahoma Tax Post Oak writ, granted mission, (Okla.1978); Although we denied the had we Hal (Okla have been it of Tax Review would McHendry, P.2d the Court stead entering upon its duties as .1977); prohibited from Phillips v. Oklahoma Tax See also (Okla recently Commission, petition spelled out in an initiative voters, organ govern an .1978), grant passed i.e. original was where purpose pro- having as its central ascertaining the consti ment purpose for the ed granted upon Judge Payne a claim which relief can be Special in Coun state claims court to the most, all, matters, appel- ty who had not situations where the that small claims if handled request. Contrary pure legal orally to the situa determi- denied that late issues concern review of Thus, previ Hooper, petitioners have not tion in here if such reason- nations of a district court. followed, any part ously litigants this matter to a lower ing submitted in other was scores of they argument court and been denied relief. should could make an situations pro- bypass orderly process of be allowed to appeal ceeding and then on first in district court appears dissenting opinion in this case 6. Another any adverse decision. Howev- to this Court from granting not of the view that we err in be Mason, er, recognized as we in Jarman parties, original jurisdiction in that we leave the (1924), Court is 229 P. this meaningless litigation” gauntlet in run "to appellate arguments primarily court and an brought any appeal in district court because in expense simple delay will not nor- issues, based on or raising legal a de novo this Court the same mally rationale for us to be considered a viable applied. will The fact is standard of review be juris- assume exercise our discretion to appeals involve a de novo standard of numerous e.g. of a matter. failure to diction motions to dismiss for review— Id. taxpayers illegal prior legislative appropriation. citizens from out at teetion of levies, tax would have unable to funс immediacy been 755. The of the situation seemed in Mathews matter Clearly, tion. such obvious in that the former Governor had general importance presented that was actually going announced the funds were speedy need for resolution was evident.7 actually be used so and the monies had been sinMng transferred to a fund payment Ethics Commission v. in recently,
More
Cullison,
Id.
(Okla.1993),
the bonds.
at
755-756.
In that
59
orderly
necessity
procedure.2
no
as- work
there is
for the
No area of the
convinced
sumption
case.
original
may lay
exemption
law
claim to
from the
orderly
range
procedure’s
basic stric-
Accordingly,
application
to assume
sparing
original jur-
tures.3 The
use
our
original jurisdiction is denied.
isdiction is necessitated
the fundamental
tripartite
law’s mandate
division
for
C.J.,
LAVENDER,
WILSON,
ALMA
and
governmental powers.4
This court’s
ALA, JJ.,
and
HARGRAVE
OP
concur.
cognizance should not be available to settle
SIMMS, J.,
specially.
all
dispute
concurs
constitutional issues in
legislative
and
executive
If
branches.
KAUGER, V.C.J.,
HODGES,
and
judicial power
could indeed be harnessed
WATT, JJ.,
SUMMERS and
dissent.
request
legislative
mere
from the
or the ex-
department,
judiciary
ecutive
would be-
OPALA, Justice, concurring.
political
appendage
come but an
to those
separately
explain why join
I
write
I
active, day-to-day partici-
and an
branches
today’s
refusal to assume
government’s
pant in
policymaking pro-
governor’s request
over the
for
settlement
cess. Judicial
not
institutions could
remain
the constitutional issue tendered.1
pos-
true
constitutionally-mandated
to their
litigation
ture
process
neutrality5
Fundamental fairness
absolute detachment and
except
they
cannot be afforded
within a frame-
to become
policymakers,
were
indirect
if
398,
Okl.,
(1993);
My
unchanged by
Snyder
view
1.
remains
one dissenter’s
871 P.2d
414
v. Smith
governor's
Fabrication,
168,
reference to the
veto of
Okl.,
HB
Welding &
746 P.2d
171
postfiling
legal
This
cannot be
event
treated as a
(1986); Pryse Monument Co. v.
Court
District
impediment
disposition.
today's
The lawsuit
Okl.,
435,
(1979).
Kay County,
595 P.2d
438
See
presses
at hand
for a declaration of four statutes'
Lawton, Okl.,
870,
Handy City
also
835 P.2d
invalidity.
legal
sought by anyone
No
relief is
C.J.,
(1992) (Opala,
part).
dissenting
governor's
legis
from the
of HB
veto
2982. The
lature has neither filed a counterclaim
else
nor
explicitly
4. While
U.S.
not
Constitution does
sought
legal consequences
where
relief from
(see
tripartite
government
mandate a
division of
of that
veto. The HB
cannot
Chadha,
919, 962-963,
I.N.S. v.
sponte.
teachings
be
U.S.
raised sua
The
ex
of State
Okl.,
2790,
2764,
(1983) (Powell,
Turpen,
rel. York v.
S.Ct.
functioning at the beck and the state-law of organs. political of limits the ernment’s restraint. The these busi- first questions presented to an ness of courts managed must affairs be The of adversary historically and in a form context de- solely legislative executive judi- through fit for resolution viewed as organs policy- political for partments —the second defines process, cial role nonpolitical dispute-settling making.6 As a tripartite judiciary assigned to the in a allo- service, judiciary has no role in fashion- power that courts will not assure cation of policy. Respect ing governmental for our the other invade areas committed to branch- of tripartite sсheme distribution of Justiciability es government.11 is judiciary there- from a demands free expres- litigant-commanded intrusion into the offi- give fore art employed the term of this dual limitation upon relationship placed cial sion policymakers.7 judicature.12 executive barriers powers courts’ justiciability prevent judges roving from Although legal system Oklahoma’s is judicial giving outside the role and voice to by the case- bound restraints federal grievances. roving abstract are not Courts justi- or-controversy requirement,8 our law’s commissions assigned pass judgment ciability rigid an concept imposes equally validity of the State’s laws. Constitution- in- cognizance fetter.9 Judicial cannot be justified only judgments al are out of the non-justiciable controversy voked —one necessity generated strict particular than cases presents nothing more an academic litigants rights brought which between the complementary, or abstract issue.10 Two limitations, adjudicated.13 the court must be though somewhat different before Party Estep, 6. See v. 57 Democratic U.S. S.Ct. 81 227, 240-242, 461, 464-465, of (1982) (the Okl., 271, Valley 652 P.2d 278 formulation L.Ed. 617 v. Tennessee Ashwander (1937); policy primary responsibility, legislature's Authority, is a 297 U.S. 56 S.Ct. 288, 324-325, 466, electorate). to it King, entrusted L.Ed. 688 v. 472-473, 80 (1936); Hatfield 184 U.S. 22 S.Ct. 46 162, 477, 478, 165-166, Okl., Barnes, Authority justici- 7. v. Oklahoma Industries L.Ed. 481 For a discussion of the (1902). 115, (1988). system, ability judicial 769 P.2d 119 doctrine in federal see 13 Fed.Prac. Cooper, & & Wright, Miller Proc.: Standing integral part is 8. the mechanism 3529 (1984). Juris.2d § invoHng judiciary's power. the federal Toxic Leavitt, Okl., Impact Group, Wastе Inc. v. 890 Okl., Authority, Hughey 10. v. Grand River Dam 906, J., (1994) (Opala, concurring). 914 1138, (1995); 897 P.2d 1143 Northeast Okl. Elec. legal system standing the federal with imbued Com’n, Okl., Corporation Cooperativev. 808 P.2d dimension, constitutional/jurisdictional while 680, (1991); Westinghouse Elec. v. 683 Grand body in the law it under state fits the rubric Auth., Okl., 713, (1986); 718 River Dam 720 P.2d ordinary procedure. at Id. 914. The U.S. Con Review, Compress Traders Co. v. Board Okl. stitution, III, long require Art. been held to Commission, Security Employment 203 Okla. “controversy" that a "case” or is essential 564, (1950). Application also See judicial jurisdiction invoke federal and that Goodwin, Okl., 762, (1979). 597 P.2d 765 n. 8 person’s competence bring an action is a core component standing case-or-controversy in a 9, § Wright, supra note 3529 Cooper, Miller & 11. 914; inquiry. Id. C.A. at see Of Wright, Law 281-282, 391, In § 3531.2 at 3531.2 at 13, (4th 1983). Courts at 59-74 ed. Federal important the authors note that "[i]t define Wildlife, Lujan See also Part I of v. Defenders of assigned judiciary means the role to the these 555, 558-59, 2130, 2135, 504 U.S. S.Ct. tripartite power, lest the allocation of courts (1994). L.Ed.2d unwisely govern interfere with other branches of powers.” the end their own ment diminish appropriate inquiry, 9. To be a contro added.) (Emphasis versy justiciable. must be Included within the (a) justiciability rubric Cohen, 83, 95, 1942, 12. Flast v. 392 U.S. 88 S.Ct. concrete, (b) legal is definite and rela concerns (1968); Wright, L.Ed.2d 947 Miller & interests, among parties adverse tions with 9, § supra note 3529 at 281. Cooper, (c) capable is real and substantial so as to be of a granting denying specific decision relief. Walters, Okl., Oklahoma, Hendrick See Broadrick 413 U.S. 610-611, (1993); Application Dept. Statе ex 93 S.Ct. 37 L.Ed.2d rel. Okl., 642-643, (1973); (1982); Transp., Snyder, In re Aetna U.S. Haworth, (1985); Hartford, Ins. Co. Conn. S.Ct. L.Ed.2d 504 Brock- Life
61
disagreement
Mere
over the
questions.
constitutional
See Shinn v.
City,
184
principles
236,
that chart
(1939);
the boundaries of de- Okla.
will suffice short of real action that Declaratory Act, Court. Our Judgment 12 antagonistic makes a clash of forces immi- O.S.1991, 1651, seq., places et (b) nent and impede disrupt threatens to or power proceedings entertain for de- operations service-rendering vital or- claratory judgments in cases actual con- gans government.16 troversy in the district courts. By resisting an invitation that would draw Finally, it should be remembered that the judiciary into an dispute inter-branch publici juris doctrine of ground is not a over policymaking re-asserting its jurisdiction in merely itself. It is one factor purely non-justiciable detachment from a may a court consider in deciding whether to arena of marketplace combat for allocation of original jurisdiction assume juris- when such govern, today the court remains already diction proper grounds. exists on constitutionally true to its mandated mission political neutrality. I have consistently set forth these and
additional
exprеssing my
reasons
conviction
that this Court errs
disagree
when it treats
SIMMS, Justice, concurring specially:
disputes
ments and
officers
I concur in the Court’s
accept
refusal to
different
government,
branches of
without
jurisdiction.
more, as
dissenting opinions
lawsuits. See
We do not have an
Campbell White,
(Okla.
actual case or
255,
contro-
856 P.2d
versy
justiciable
with
1993);
issues
Cullison,
before us. The
Ethics Comm’n v.
850 P.2d
parties
merely seeking
advisory
1069,
opin-
(Okla.1993);
State ex rel. York v.
ion on an
question,
abstract
long
763,
and it
Turpen,
(Okla.1984);
and,
681 P.2d
been the rule that
give
this Court does not
Municipal
Oklahoma Ass’n
Attorneys v.
advisory opinions
State,
hypothetical
(Okla.1978).
1310, 1315
answer
Arcades, Inc.,
491,
Spokane
ett v.
472 U.S.
declaratory judgment
501-
Claims for
are not a new
502,
2794, 2801,
statutorily
105 S.Ct.
cause
86 L.Ed.2d
action but a
introduced reme-
(1985); Chadha,
4,
form,
937,
largely
supra
dial
note
unknown to the
462 U.S. at
unwritten An-
tradition,
glo-American
2776;
adjudicating rights
at
Valley
S.Ct.
Ashwander v. Tennessee
cognizable
equity,
at law and
288, 347,
466, 483,
while not
Authority, 297 U.S.
56 S.Ct.
"actionable",
sensu, then
stricto
nonetheless
(1936) (Brandeis, J., concurring).
62
KAUGER, Justice, performs which administrative dissenting, board Vice CMef WATT, Justice, joins, and with This does not correct with whom duties. bill SUMMERS, Justice, joins part in II: infirmity.” whom constitutional message on The Governor’s veto Senate Bill
I. identical of House Bill 876 was to that 2982. ASSUMPTION OF ORIGINAL squarely presented now with a We are real JURISDICTION clearly lively controversy which meets initially justiciable if con- Even no actual justiciability requirements.2 the While presented troversy existed the facts at under parties may gridlock in on not have been 10th, argument on 1996—one April oral does 1996, 10, presents April the cause now a Governor, argument, now. Since oral on is, controversy and one which in substantial 1996, and, Bill 2982 April vetoed House addition, unequivocally juris. publici 7,1996, Bill May 876.1 The on vetoed Senate 7, § pertinent part: in provides art. 4 Const. Bill message veto on House 2982 Governor’s original jurisdiction Supreme of the stated: “The general a superin- Court shall extend to THE SPEAKER OF “TO HONORABLE tending control over all inferior courts and THE THE HOUSE AND MEMBERS OF Agencies, all Commissions and Boards cre- OF ... HOUSE REPRESENTATIVES ated law ...” date, you to that on this This is advise to the in me pursuant vested duty We must exercise our constitutional 11 of of the Oklahoma Section Article VI original jurisdiction and assume address object to approve legis- or Constitution adoption of this merits cause. The of the me, presented I lation have VETOED majority opinion parties force the Bill 2982. Bill House This fails address manufacture another case problem of I of the violation Section submit to the district court. IV, of Article the Oklahoma Constitution. majority its sparingly superin- law This Court exercises provides The current tending power original jurisdiction legislative appointments to an executive assume may judicial property. This Court notice of er's own interest in the 1. take House This clause Bill 2982 and Senate Bill 876 and the Governor's general indemnity is similar effect to the bills. Title vetoes which attached to 12 principles; proceeds insurance both treat provides pertinent part: O.S.1991 2201 replacement destroyed property, for the rather payment mortgage than as toward debt’s satis- "... B. Judicial be taken notice policy faction. Because the itself not in- court of: record, appellate this cluded in must as- acts Private and resolutions Con- provisions sume the contract insurance Legisla- gress of the United States and of the when force fire occurred contained the stan- state, duly of this enacted ture ordinances (Emphasis origi- mortgage dard clause.” governmen- duly published regulations nal.) (Citations omitted.) agencies this tal subdivisions or state Willis, only judicial this Court not took notice United States ..." record, mortgage of a standard clause not in the Scurlock, Teague 223 Ark. S.W.2d went it much further and surmised that (1954) (Recognizing that the courts will Here, clause was standard one. Court judicial governor’s take notice and a of a bill veto refuses to notice veto of a enact- part Legislature.). which is the record of the public clearly ap- ment—a matter of law—which interesting concurring opin- It is that the note plies presented. to the When matter facts objects to the notice of the ion Court’s Gover- public large, involves the this welfare Evidently, veto in nor's House Bill 2982. sponte Court has not to sua hesitated address problem mortgage has not been before. In the dispositive law issue cause. case, Co., Willis v. Cattle debt Nowata Land & Nath, e.g., See First Federal Sav. & Loan v. Court took (Okla.1992); Indep. P.2d Burdick policy of a notice which was not (Okla.1985). No. School Dist. opinion speculated: appellate record. clause, "The other mortgage standard See, hand, Turpen, ex rel. Yorkv. P.2d operated independent to create an con- J., (Okla.1984) concurring). (Opala, See mortgage tract between the insurer and the also, Application Dept. Transp., ex rel. protect so as to the latter from lender (Okla.1982). borrower's and to shiеld lend- misconduct *12 publici juris. state, prerogatives liberties to address issues which of its years people have of the last 50 assumed are affected. The interest the state publici juris only incidental, primary, of is not the basis because these year.3 com- powers 44 times —less than The boards commissions once exercise every fab- through thread which woven which affect citizen.5 This conflict6 mon is opinions recognition powers government of these is the between ric two of State constitutionally authority7 some situation is when unusual created their vested public which a refusal to would also concern exercise involves issue of great only of wrong, create a result a denial it because affects the elected officials resources, justice directly involved, or in of the waste who are because it but also original jurisdiction.4 this Court will exercise involves delicate of balance be- clearly publici juris dispute This tween because and executive branches state, sovereignty government.8 the franchises of 3.See, 1235, 1212, (Okla.1986); 891 P.2d 1238-39 1216 Apple, Application Nesbitt v. Grand of (Okla.1995); 5, Bd., (Okla.1976); County 7 Sharp Authority, Tulsa 554 P.2d v. Election River Dam 836, (Okla.1994); 753, (Okla. P.2d Boren, 890 839 Williams Natural 545 P.2d 755 Wiseman v. 1976); Equalization, 891 P.2d Gas Co. v. State Bd. Corp. Am. v. Pan Petroleum Bd. Tax- of of 1219, (Okla.1994); White, 680, 1221 v. 856 Campbell 510 P.2d County, Roll Corrections Tulsa of 255, (Okla.1993); (Okla.1973); 257 v. P.2d Ethics Comm'n 682 500 P.2d Derryberry, Barton v. 1069, (Okla.1993); Cullison, 850 P.2d 1072 (Okla. 1972); Mov- 281 Oklahoma Farm Bureau v. State Jury Subpoenas Quash 182, ants Grand Issued (Okla.1968); Ed., 444 P.2d 183 Bd. Hoo of Multicounty Jury Case Be Grand No. CJ-92-4110 Equipment ver Co. v. Board Roll Correc Tax of Powers, County Dist. Court v. 645, Oklahoma (Okla. County, 436 P.2d 646 tions Adair fore of of (Okla.1992); Naylor 839 655 Petuskey, P.2d v. 1967); State ex rel. Nesbitt v. Ford, 439, (Okla.1992); 834 P.2d 440 Johnson v. Wal (Okla.1967); Tulsa, 405 P.2d City Sublett v. of 694, (Okla.1991); ters, 819 P.2d 696 v. Golden 185, (Okla. 1965); Burkhart, 189 P.2d 377 Allen v. Bd., 982 County 723 P.2d Election 821, 1962); (Okla. Key, Okfuskee 823 Welch v. 365 P.2d (Okla.1986); 789, Thompson, 721 P.2d Davis v. 154, (Okla.1961); 156 State rel. Bd. ex Edu of (Okla.1986); 790 Indep. School Dist. City DeLafleur v. Sapulpa cation cation, v. State Bd. Edu of of of 1352, County, P.2d 1353 11 727 No. Tulsa 324, 540, (Okla. of 170 541 197 P.2d 459, (Okla.1986); Stone v. Johnson, 690 P.2d 461 353, 1946); Childers, v. Wells 196 Okla. 165 P.2d (Okla.1984); 681 Turpen, rel. State ex York v. 371, (Okla.1945). 374 763, (Okla.1984); 764 P.2d Cart State ex rel. 142, (Okla.1982); wright Ogden, 657 P.2d 143 v. See, Bd., Sharp see County v. Tulsa Election Equalization, ex rel. v. State Bd. State Poulos 3, also, supra; note See Cartwright State ex v. rel. 1269, (Okla.1982); Application P.2d 646 1270 3, supra; Ogden, note and State ex rel. Poulos v. 605, 609 Dept. Transp., 646 P.2d ex rel. State 3, supra, Equalization, note State Bd. (Okla.1982); P.2d 632 Rapp, Stuart v. State ex rel. recognize publici juris that where matter 388, (Okla.1981); 389 Smith ex rel. State State v. original jurisdiction proceed we assume 1264, (Okla. P.2d Equalization, 630 1265 1142, Bd. case consider the on the merits. 1981); State, 621 P.2d 1145 Draper v. (Okla.1980); State rel. Howard v. ex Oklahoma 528, Olson, 5. State N.W.2d 307 Peterson v. ex rel. 45, (Okla.1980); Comm’n, Corp. 614 P.2d 51 (N.D.1981); Olson, 530 286 v. State ex rel. Link Daxon, 607 ex rel. State Oklahoma Tax Comm'n v. 262, (N.D.1979). 266 N.W.2d 683, (Okla.1980); P.2d 685 State ex Cart rel. 900, (Okla.1980); Dunbar, wright v. 618 903 P.2d petitioner 6. The is the Chief Officer of Executive 1132, Henderson, (Okla. Russell v. 603 P.2d 1134 repre appears Oklahoma State of who in his 1979); State ex Tax v. rel. Oklahoma Comm'n capacity sentative to seek from this relief Court. 882, (Okla.1979); Mourer, 596 P.2d 884 ex position legislation Governor’s is that Cоrrections, 614 rel. Wiseman v. Bd. Oklahoma impedes appointment power. his freedom of 551, (Okla.1978); P.2d 552 Oklahoma Ass’n of petitioner standing prosecute Clearly, the 1310, State, Municipal Attorneys v. 1312 See, this action. note Turpen, v. State ex rel. York Comm'n, (Okla.1978); Phillips v. Oklahoma Tax 2, (Opala, supra, concurring). J. 1278, (Okla.1978); P.2d 577 1280 rel. State ex Pate, P.2d Jury County 572 Grand McCurtain 3, supra; Cullison, 7. Ethics Comm'n v. note see 226, (Okla.1977); Followell, 227 567 Sanders v. (Issues arising supra see note Apple, Nesbitt v. (Okla.1977); P.2d McHendry, Halstead v. dispute out of as to the lawful holder of office of (Okla.1977); P.2d Application re corporation state publici jur- commissioner were Heights Indep. Bd. Ed. Western School is.). (Okla.1977); Dist. No. Motel, City, Matter Suntide Inn Oklahoma Const, provides: 8. Okla. art. P.2d overruled on other grounds by provide by Legislature law "The shall for the Indep. School Dist. No. 89 Okla County City and maintenance of an efficient City, establishment homa Cullison, Equalization differing P.2d Board of could assess
In Ethics Comm’n (OHa.1993), public among we invoked ratios various service cor tax Const, art. pursuant the OHa. porations from that assessed for railroads dispute two that, 4 to between address recognized in addition and airlines. We government Legisla- entities issues, judi importance of the to the —the Here, our ture and the Ethics Commission. economy resolving be served cial assuming jurisdiction or choice *13 by publici juris assuming the issues and litigation parties to fashion allowing the original to address the merits initiated in district court but which would be the causе. in ultimately this be resolved which superintending exercises its This Court in irony An is imbedded Court. additional juris- infrequently power to assume because, this alternative insofar second publici concerned, dispose diction to of a cause9 which appointments are these are there However, zealously in juris. to other cases we disputed fact issues be resolved. We no concerning pure question guard rights a of law. It is fundamental are faced with basic duty Supreme responsibility the and of the in access to the courts even cases interpreter of Court to act as the ultimate appear facially example, to be frivolous. For the Constitution. Hooper original jurisdiction in we assumed Belden, 79,998, Lois L. in Honorable No. economy, judicial in its the interest of plaintiff pauper’s who had filed a which a superintending role of control of all boards in press to a small claims suit affidavit order pub in the agencies, and and interest concerning allegedly a squabble over errone- lic, consistently Court has addressed is this toppings pizza. ous on a The court clerk $7 great public example, sues of concern. For accepted plaintiffs papers, the but before Corp. in Bell Tel. v. Southwestern them, filing the trial hand-carried them to Comm’n, (Okla.1994), 1009-10 to application proceed court the in to review — U.S. -, cert. denied 115 S.Ct. judge pauperis. After the denied the forma (1994), ques the L.Ed.2d addressed application, we issued writ mandamus right tion of is a to an unbi whether there directing the and file accept court clerk to ratemaking proceed in ased decisionmaker plaintiffs paperwork, the and further direct- ings proceedings in when the inquire pauper’s into ed the trial court the However, attempt nature. con “[i]n 152(C) provided by § affidavit as 28 O.S.1991 resources, as well as re serve the underlying right the because constitutional Court, payers,” rate the sources after jeopardy. by was in measured When deciding controversy, the case in rendered standard, surely present controversy, right on the to an unbi authoritative advice quarrel which includes substantial between adjudicative proceed ased decision maker government, coupled two with branches ings as well. Williams Natural Gas Co. publici juris, important enough 1219, matters of Equalization, Bd. presented that we assume exer- we were with questions concerning power cise that whether address merits. Oklahoma, system by checks and balances Seal of the State of and attested Department, officers of the Executive and all Secretary of State. When office shall superintendents, commissioners vacant, pro- become he shall unless otherwise institutions, boards of control of State and all law, by person appoint a fill vided such collection, other officers entrusted with the vacancy, who shall continue office until receipt, custody, or disbursement of reve- duly ap- successor shall have been elected or moneys nue or of the State whatsoever." pointed, qualified according law.” provides:
Okla. Const. art.
governor
all
"The
shall commission
officers
example,
orig-
9. For
Court assumed
by
otherwise
com-
commissioned
law. All
nearly
inal
forth of the 270
one
missions shall run
the name
original jurisdiction
presented
Oklahoma,'
actions that were
authority of the ‘State of
to be
Governor,
signed
sealed with
Great
the Court.
faithfully
II.
care that
the laws be
execut-
(Emphasis
ed.”
supplied.)
THE METAMORPHOSIS FROM OKLA-
Nevertheless, when
people
of Okla-
HOMA’S TERRITORIAL LAW TO
homa
government
formed
state
STATE
LIMITED
GOVERNMENT
adopted
Constitution,
the Oklahoma
ap-
THE GOVERNOR’S APPOINTMENT
pointment power
created
the Governor
POWER.
substantially
from
reduced
that accorded
recognized
It has been
since statehood that
by the territorial laws. Under the Constitu-
appoint
the Governor has
limited
tion, the
appointment
Governor’s
power was
In interpreting
people’s
ment.
will as
people
restricted
State Okla-
Constitution,
expressly written in the
consid
Constitution,
homa.12 The
art.
given
eration must be
sought
to what was
provides:
people
avoided
of this state.10
“The Governor shall
all
commission
offi-
unmistakably sought
What was
to be avoided
*14
by
cers not otherwise
by
6,
commissioned
§
law.
the
Const. art.
13
awas
concen
All commissions shall run in
Otherwise,
the name
power.
tration of
and
the cheeks and
by
the
of
Oklahoma,’
the ‘State of
by
5, §
balances secured
Okla. Const. art.
60
signed
Governor,
by
be
the
sealed with the
meaningless.11
would be useless and
Oklahoma,
Great Seal
the
of
State of
and
gave
gover-
Oklahoma’s territorial law
the
by
Secretary
attested
the
of State. When
power
nor the
to
all appointments.
make
any
vacant,
shall,
office shall become
he
Act,
2
Organic
Section of Oklahoma’s
26 Stat.
law,
provided by
appoint
unless otherwise
(1890)provides:
person
fill
vacancy,
such
who shall
“That the
power
Territory
executive
of the
continue in office until a successor shall
governor,
of Oklahoma Shall be vested in a
duly
been
appointed,
have
elected or
and
who shall
years
hold office for four
qualified according
(Emphasis
to law.”
until his
appointed
successor shall be
supplied.)
qualified,
unless sooner removed
the
president of the
gov-
grants
United States. The
A
right
commission
the
to have and
shall
ernor
reside within
Territory;
discharge
said
the duties of
certain office.13
term,
shall be commander-in-chief of the militia
ordinary
This
both
its
meaning and
thereof;
may grant pardons
sense,
he
for
legal
of-
its
delegation
reflects a
of au-
against
fenses
the
Territory;
thority by
laws
said
power
which
or
is
reprieves
against
offenses
the laws
conferred to others.
It
is warrant
office
States,
of the United
until the decision of which
delegatee
authorizes the
to execute the
president
thereon;
the
can be made known
Historically,
Legis-
duties
office.14
the
he shall commission all
statutorily
officers who
signifi-
lature
commissioned
appointed
shall be
office
appointments
under the
cant
to Boards and Commis-
Territory,
laws
said
Only
statehood,
shall
take
years
sions.
seven
after
Fuller,
Oklahoma,
Capitol
(1923).
10.
Steel & Iron
p.
Co.
206 Okla.
The Okla. Const.
1134,
(Okla.1952).
provides:
art.
shall,
beginning
"The Senate
at the
of each
5, 60,
8, supra.
11. Okla. Const. art
note
see
regular
session and at such other times as
necessary,
elect one of its members Presi-
pro
The mindset
the
tempore,
preside
members of the Constitu
dent
who shall
over its
tional Convention is also revealed
the
place
treat
the
deliberations in
absence or
Governor;
ment of the Office of the Lieutenant Governor.
Lieutenant
and the Senate shall
and,
apparent
power
provide
standing
Because of the
abuse of the
its
all
committees
vote,
appoint
majority
standing
committees of the
elect members
state senates
thereof.”
states,
by some Lieutenant Governors in other
Planter,
before),
13. United
(especially
States
Fed.Cas.
years
in Missouri a few
the
(1852).
members of the Constitutional Convention also
deprived
privi
the Lieutenant Governor
the
lege
standing
Ct.,
appointing the
Judges
Springs
committees
the
Dew
Sweet
Dist.
Ellis,
1, 43,
Oklahoma State Senate. Albert H.
A
&
Histo
Hen. M.
3 Am.Dec.
to create facts in order to another impact litigation Convention.” The of this controversy case in so that we can decide assuredly go beyond will the boards and appeal question sometime later on the Respondents commissions named to doz- today. of law we avoid which membership designat- ens of others whose is part by entity ed some other than the
CONCLUSION Governor. No reasonable mind could dis- public importance pute pre- of the issues juris- original This Court should exercise sented. diction and address the merits of this cause presents lively because the cause a real and determining controversy a whether is controversy clearly justicia- meets the juris- appropriate original for the exercise bility requirements.18 Original jurisdiction of diction, this Court has considered both the general, this extends to matters of Court importance urgency resolving the dis- public controversy clearly interest and this majority only pute. The focuses on one of public concern. guiding principals. Urgency these is but one appointment power militating assumption ex factor The Governor’s towards jurisdiction. pressly weighed § limited art. It is to Okla. Const. alongside importance in- which stands stark contrast to the Gover of the issues power majority weighed urgency nor’s under Oklahoma’s territorial volved. The (Okla.1973); Turpen, supra, 18. see State ex rel. Nesbitt v. District State ex rel. York v. note (Okla. County, Mayes concurring). Court 440 P.2d (Opala, J. 1967). Act, See, (1890) Organic § 19. 26 Stat. 82 2. 6, §
16. Okla. Const. art. 10. 10, 17. Okla. Const. art. juris weighing in equation ignores that it Publici is one reason heavily in the
so assuming favor of where the importance the issues. tremendous possesses to ad Court otherwise imagine It is difficult judicate the matter. It is most often invoked important is more resolution whose excusing noncompliance as one reason govern- functioning of this state’s proper seeking of first relief in the with the rule heightened by for review is The need ment. example, in District Court. For Board of Legislature has not followed an fact the Worten, County Commissioners Carter Attorney opinion which determined General’s (1927) P. this 128 Okla. challenged statutes are constitution- that the why gave Court two reasons the usual rule ally separation infirm under petitioners requiring the to seek relief analysis. First, said, apply. did not District Court public importance ques because Original should be assumed second, presented, аnd no oth tions because waiting than to review the issues rather possessed superintending control er court Addressing appeal. Petition- the inevitable over the lower courts. provide expe- application would the most ers’ resolving controversy. ditious method parties is that the have con Another disruption result in less of state It would also power provide ap fused this Court’s government. has not and should This Court propriate remedy with whether cause of disputes into a crisis not wait for to escalate Fashioning remedy action exists. posture resolving issues of vital justiciable before controversy is well within the his presented in such as the ones this concern toric nature of the conferred dispute departments govern- two Art. 7 this Court Okla. Const. Today’s dispute Cullison, left unresolved is in- ment. Ethics Commission 850 P.2d likely (Okla.1993). escalate into tomorrow’s consti- 1069, deed Creating a cause of tutional crisis. action casts this Court into a more activist
role, and it this role Governor Graham, today. us to fill Hill v. asks See SUMMERS, Justice, dissenting, and (Okla.1967) describing KAUGER, Justice, joining part. Vice Chief judicial legislation. creation of a cause of action as jur- to assume The Court declines Clinic, Orthopedic Cf Karriman v. . dispute it isdiction because has deter- (court 1251-1252 pressing prompt mined that no need for a action). declined there to create a cause of litigants may present, resolution is and the Justiciability in Oklahoma courts neеd not *17 matter in I thus contest the District Court. counterpart. be identical its federal Toxic respectfully disagree. origi- I would assume Leavitt, Impact Group, Inc. v. Waste jurisdiction and the nal decide matter. (Okla.1994). However, P.2d 910 n. 7 the judicial (jus- power by exercise Court First, clearly publici the matter is one of ticiability) “judi must with that be consistent juris, large. it affects at as the State power” by cial vested in this Court Freeling Lyon, ex rel. v. 63 Okla. 165 P. 1,§ Const. Art. 7 accordance with the (1917). 419, 420 It is true that this is insuffi historically “judicial recognized definition of cient, itself, by for this Court to assume power” contemplated by the framers of our jurisdiction and address the merits State, Draper v. 621 P.2d Constitution. See controversy. of a The fact that a controver (Okla.1980), where we said that sy publici juris independent is is not an of our construction Constitution to be jurisdiction grant to this Court. See Wix accord with the intent of the framers. Green, (Okla.1974), son v. 521 P.2d (a controversy publici juris adopted an At did not create the time our Constitution was independent grant adjudi judicial power pro this Court exercised upon party cate a to “the matter the merits where that vided relief aggrieved.” Thompson a v. ex rel. was to be exercised different Cook (1910). agency). sey, 25 Okla. 108 P. At a aggrieved plaintiff appointees prior creating the must have had law his act of rival legally cognizable appointees. in direct and immediate terest, equity parties while allowed additional certainly It true that this Court possessed and future interests.
who
remote
action,
create a cause of
and we have done so
Story,
Equity
3 J.
Commentaries
Juris
recognizing
changing
conditions of soci
(W.H.
1918).
Lyon,
prudence,
14th ed.
ety,
possibility
for
evolution
the com
law,
expectations
mon
and the reasonable
today
our
expressly
In
case
the Governor
aggrieved
to redress within the frame
right
particular
disclaims
to make
work
traditional
action.
appointment. He
that
states
some unnamed
Hook,
Williams v.
804 P.2d
1137-1138
appoint-
officials must make
executive
(loss
(Okla.1990),
parental consortium);
substance,
allegation
In
his
not
ments.
Restaurant,
Brigance
Inc.,
v. Velvet Dove
aggrieved
he as
party,
that
Governor is
(dram
302-304
that he
but
some unnamed executive
and/or
action);
shop
McCormack v. Oklahoma Pub
aggrieved.
seeking
officers are
an action
(Okla.
lishing Company, 613 P.2d
declaratory
against
peti-
relief
the State the
(invasion
1980),
privacy).
party aggrieved
tioner must be the
controversy
justiciable.
must be
Ethics What we have is a
Cullison,
leadership
v.
Leg-
Commission
P.2d at 1073.
Governor and the
islature,
dispute
great public
concern at
Challenging
appointment
very
government.
top
two branches of
time
remedy
one
redressable via the
man
writing
I
recog-
Were
the Court I would
damus, and
public pos
a member of the
Governor,
nize
appointing
that
as the
sessed
cause of action to seek such relief.
officers,
many
executive
has an
Thompson v.
Cooksey, supra.
State ex rel.
determining
scope
interest
of that
contemporary jurisprudence
an
action
power prior making
appointment
an
to an
quo
nature
warranto is used
chal
office
result
rival claimants to
lenge
quo
such an
A
appointment.
warranto
office,
being
that
the other claimants
those
proceeding may
brought by
Attorney
be
Legislature.
I
advanced
would thus
Attorney.
or a
General
District
O.S.1991
cognizable
legally
possessed
create a
interest
recognized
§ 1533. We have
rival
also
Governor,
adjudicated
to be
within the
possess
appointees
an interest
sufficient
declaratory
context of
relief in such circum-
adjudicated
proceeding.
in quo
warranto
Having
original jurisdic-
stances.
assumed
Dawson,
(Okla.1996);
v.
Freeman, (Okla.1995). 217, 219 ap-
If the Governor made an executive *18 pointment positions to fill one he CLUB, INC., Appellant, BRANDER'S unconstitutionally thinks is filled legisla- appointee, appointee tive then the Governor’s possess an put interest sufficient to LAWTON, Appellee. OF CITY quo in a proceeding issue warranto the con- 82,494. No. stitutionality appointment process. Dawson, supra; Nesbitt Apple,
Cox Supreme Court of Oklahoma. Priore,
supra; supra. Abitbol v. What May Governor asks this Court to do is to create a him, using proce-
cause action to allow relief, declaratory vehicle of
dural to contest by legislative
the title of the held offices