Lead Opinion
¶ 1 Petitioners, who allege they are residents and registered voters “of the Second Supreme Court District,” filed this proceeding to contest Governor Fallin’s recent appointment of Respondent, Justice Patrick Wyriek, to the Oklahoma Supreme Court. Petitioners challenge Justice Wyrick’s eligibility to sit as a Justice on this Court and request quo warranto relief, or in the alternative, a writ of prohibition, barring Justice Wyriek from exercising “authority of an office to which he is constitutionally ineligible.” Because this cause is publici juris, we assume original jurisdiction. See also Okla. Const, art. 7, § 4 (“The original jurisdiction of the Supreme Court shall extend to a general superintendent control over all inferior courts and all Agencies, Commissions and Boards created by law.”).
¶ 2 Prohibition is not available as a corrective remedy to undo a completed act, and is not available to try the title to an office. Sneed v. State ex rel. Dep’t of Transp., 1983 OK 69, ¶ 11, 683 P.2d 525, 529; State ex rel. Rucker v. Tapp, 1963 OK 37, ¶ 28, 380 P.2d 260, 267. “[A]n action in the nature of quo warranto will be deemed to constitute the exclusive remedy” to try the title to an office.
¶ 3 This Court possesses original jurisdiction to issue writs of quo warranto per 12 O.S. 2011 § 1532 and to issue writs of prohibition per Article 7, § 4 of the Oklahoma Constitution. Petitioners concede that under the Oklahoma Constitution neither the Senate acting as a court of impeachment nor the Court on the Judiciary has jurisdiction to consider a challenge to the qualifications of a sitting Justice by quo warranto or any other means. We agree. The untimely nature of this action
ORIGINAL JURISDICTION ASSUMED; ACTION DISMISSED WITH PREJUDICE
. Tapp, 1963 OK 37, ¶ 28, 380 P.2d 260, 267. Section 1532 of Title 12 allows an action in quo warranto "[w]hen any person shall usurp, intrude into, or unlawfully hold or exercise any public office, or shall claim any franchise within this state or any office in any corporation created by authority of this state.” 12 O.S. 2011 § 1532.
. State ex rel. Bd. of Regents v. McCloskey Bros., 2009 OK 90, ¶ 20, 227 P.3d 133, 145.
. Id. (emphasis added); See also 12 O.S. 2011 1531-1533.
.See Okla. Const, art. 7B, § 3(e), which provides:
The concurrence of the majority of Commissioners in office at the time shall be sufficient to decide any question, unless otherwise provided herein. The Commission shall have jurisdiction to determine whether the qualifications of nominees to hold Judicial Office have been met and to determine the existence of vacancies on the Commission.
See also Fent v. Henry, 2011 OK 10, ¶ 21, 257 P.3d 984, 994 (finding that the Judicial Nominating Commission’s decisions are valid when decided by a majority of its members).
Concurrence Opinion
concurring
¶ 1 A court, including this Court, has a duty to inquire into whether it possesses jurisdiction over the subject matter of an action that has been brought before the court. Dutton v. City of Midwest City, 2015 OK 51, ¶ 15, 353 P.3d 532, 553. “[This Court’s] inquiry requires us to examine the nature of [the] pled cause of action and the
¶ 2 In the case before us, the subject matter of the parties’ controversy is the appointment of Justice Patrick Wyrick to this Court. More particularly, two citizens ask this Court to redetermine the issue of whether Justice Wyrick has met the qualifications for his office.
¶ 3 The people of Oklahoma addressed the subject matter of “the selection and tenure of all Justices of the Supreme Court” in Article 7B, § 1, of the Oklahoma, Constitution. In doing so, the people plainly said the provisions of Article 7B “govern” this subject matter. The people further expressed their intent that Article 7B “govern” this subject matter, “other provisions of the Constitution or statutes of the State of Oklahoma to the contrary notwithstanding, and the provisions of Article [7] ... to the contrary notwithstanding.” The people have made it clear that Article 7B will exclusively “govern” the subject matter of selection of a Supreme Court Justice.
¶ 4 As concerns the actual selection of a Justice to this Court, the people of Oklahoma established a process and vested two agents with power to judge the qualifications of persons seeking the office of Supreme Court Justice. The agents vested with the power to judge the qualifications of an applicant are the Judicial Nominating Commission and the Governor. The process in which these agents exercise their power has two stages.
¶ 5 The first stage of the constitutional selection process is conducted by the Judicial Nominating Commission. The people have expressly provided that: “The Commission shall have jurisdiction to determine whether the qualifications of nominees to hold Judicial Office have been met.” Okla. Const. Art. 7B, § 3 (e). At the conclusion of this stage, the Commission nominates the three applicants it has determined to be best qualified.
¶ 6 The second stage of the constitutional selection process is conducted by the Governor, The people of Oklahoma have vested the ultimate power to judge the qualifications of the nominees in the Governor. The exercise of jurisdiction by the Commission and by the Governor in the selection of a Supreme Court Justice involves a considerable degree of judgment.
¶7 In performing their respective functions, and in their exercise of judgment, the Commission and Governor have a duty to hear and consider any comments by individual citizens concerning the qualifications dr fitness of the applicants they review. Individual citizens of Oklahoma, where ever they may reside, have the right to question the qualifications or fitness of any or all of the applicants, or to object to their selection as a nominee or appointee. The time to do so, however, is during the respective stages of the selection process. That is the point in time that citizen questions and objections must be weighed and addressed by the only officials that have jurisdiction “to determine whether the qualifications of nominees to hold Judicial Office have been met.” This likewise provides a measure of due process to allow applicants to be heard concerning such questions or objections.
¶ 8 The fact that Article 7B provides the complete and exclusive process for the selection of a Supreme Court Justice does not mean that certain acts by the agents of that process (the Commission and Governor) are completely beyond judicial relief. For example, if the Commission refused to meet, mandamus would be available to compel the Commission to perform this constitutional duty, but could not direct the Commission in regard the exercise of its judgment upon meeting. Similarly, if the Governor selected and appointed a Supreme Court Justice without following the process specified by Article 7B, judicial relief would be available to void such an illegal act.
¶ 9 Unlike these examples, both the Commission and Governor duly exercised their constitutionally vested subject matter jurisdiction for the selection of Justice Wyrick to serve on this Court. The constitutional process has been completed, and his qualifications to hold the office of Supreme Court Justice are, in my opinion, finally and conclusively determined.
¶ 11 The foregoing considerations lead me to conclude that this Court lacks subject matter jurisdiction over both the controversy and the relief sought. I therefore join in the assumption of original jurisdiction for the limited purpose of deciding this jurisdictional issue and join the dismissal of relief.
Concurrence in Part
Concur in Part and Dissent in Part.
¶ 1 I concur in part and dissent in part to the Court’s' opinion for the following reasons.
¶ 2 Generally, no exercise of State executive power, State legislative power, or State judicial power is beyond this Court’s Article 4 constitutional role of review
¶3 In 1978 this Court explained that a person holding an Oklahoma Constitution Article 7 judicial office is removed or suspended by the means provided by law.
¶4 Petitioners make a conclusory allegation that legal remedies are not available for the relief they seek. They make no legal analysis or cite applicable legal authority supporting their allegation that legal remedies expressly mentioned by this Court in previous opinions are insufficient for the relief they seek. Petitioners failed to satisfy their burden that they possess an inadequate or legally insufficient right of action.
¶ 6 The People are vested with supreme and sovereign authority as the source of all governmental power and authority.
. Romang v. Cordell, 1952 OK 139, 206 Okla. 369, 243 P.2d 677, 679 (the Oklahoma Supreme Court has the State constitutional power and duty pursuant to Art. 4 § 1 to prevent any State government entity from violating the State Constitution when that issue is presented to the Court by a judicially cognizable cause of action unless the State Constitution forbids the Court from acting in a certain circumstance). See also York v. Turpen, 1984 OK 26, 681 P.2d 763, 767 (the Court possesses the Okla. Const. Art. 4 § 1 role of determining constitutional validity of a statute).
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.
. Okla. Const. Art. 7 § 1:
The judicial power of this State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. Provided that the Court of Criminal Appeals, the State Industrial Court, the Court of Bank Review and the Court of Tax Review and such Boards, Agencies and Commissions as have been established by statute shall continue in effect, subject to the power of the Legislature to change or abolish said Courts, Boards, Agencies, or Commissions. Municipal Courts in cities or incorporated towns shall continue in effect and shall be subject to creation, abolition or alteration by the Legislature by general laws, but shall be limited in jurisdiction to criminal and traffic proceedings arising out of infractions of the provisions of*294 ordinances of cities and towns or of duly adopted regulations authorized by such ordinances.
Okla. Const. Art. 7 § 4 begins with the statement:
“The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; ... The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law....” (Emphasis added).
. For example, in McKye v. State Election Bd. of State of Oklahoma, 1995 OK 15, 890 P.2d 954, the Court explained that Okla. Const. Art. 5 § 30 expressly states “Each House shall be the judge of the elections, returns, and qualifications of its own members ..." and this express constitutional vesting of this controversy in the Legislature removed it from an Article 7 court’s judicial review.
. Graham v. Cannon, 1978 OK 9, 574 P.2d 305.
. Okla. Const. Art. 7-A, § 1(a): In addition to other methods and causes prescribed by the Con-stitution and laws, the judges of any court, exercising judicial power under the provisions of Article VII, or under any other provision, of the Constitution of Oklahoma, shall be subject to removal from office, or to compulsory retirement from office, for causes herein specified, by proceedings in the Coiirt on the Judiciary.
. Graham v. Cannon, 574 P.2d at 307, 308, citing Okla. Const. Art. 7-A, § 1(a).
. For example, in addition to discussing the Court on the Judiciary, Cannon discusses a removal action by 22 O.S. 1181 (which specifies causes for removal for any officer not subject to impeachment), and an ouster action 51 O.S. § 91 (removal for state officers not subject to impeachment). Cannon, 574 P.2d at 308.
. In re M.K.T, 2016 OK 4, ¶ 61, 368 P.3d 771 ("Generally, a burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.”).
. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073 (“Since 1893 this jurisdiction has recognized that forms of action are abolished.”).
. Romang v. Cordell, 1952 OK 139, 206 Okla. 369, 243 P.2d 677, 679.
. Smith v. Bovaird Supply Co., 1980 OK 129, 616 P.2d 1157, 1159 (the Court has no power to restrict a constitutional remedy or right).
. Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, n. 43, 270 P.3d 113, 125 (equity
. Vandelay Entertainment, L.L.C. v. Fallin, 2014 OK 109, ¶ 13, 343 P.3d 1273, 1276 (Three branches of government, including the Judicial, possess inherent powers essential to the functions of each branch.).
. Petuskey v. Cannon, 1987 OK 74, 742 P.2d 1117, 1120.
. Sharpe v. State ex rel. Oklahoma Bar Association, 1968 OK JUD 1, 448 P.2d 301, 306.
Concurrence in Part
concurring in part, dissenting in part:
While I concur in part with the reasoning expressed in the majority opinion, I write separately to express my views concerning the unprecedented issue which currently stands submitted to this Court.
I concur that our Article 7 authority vests in us power to review the actions of inferior courts, agencies, boards and commissions, including the Judicial Nominating Commission. We cannot exercise that power under the theories pressed by these two petitioners.
The critical issue confronting us cannot be resolved without more facts than those contained in the record before us.
I dissent to the majority’s dismissal with prejudice, albeit only as to these two petitioners.
Adoption of the majority opinion does not nor can it resolve the ultimate issue.
Accordingly, I would have simply issued a special order denying the petitioners quest for original jurisdiction and a writ, without prejudice to seeking its resolution of the issue in the appropriate forum below.
By so doing, all parties would have the due process rights they deserve and any subsequent review could be done upon a more fact-filled record to resolve what I believe to be the most critical issue this court has ever faced.
