Abitbol v. Priore

Abitbol v. Priore
1990 OK 62
797 P.2d 335
61 OBJ 1854
Case Number: 75720
Decided: 07/10/1990
Supreme Court of Oklahoma

PATRICK ABITBOL, PETITIONER,
v.
DONNA J. PRIORE, RESPONDENT.

Original Proceeding for a Writ of Quo Warranto.

¶0 Petitioner brings this original action in the nature of quo warranto for a declaration that he holds title to the office of district attorney.

ORIGINAL JURISDICTION ASSUMED IN CAUSE NO. 75,720; WRIT IN THE NATURE OF QUO WARRANTO GRANTED CONFIRMING IN PETITIONER TITLE TO THE OFFICE; COMPANION CAUSE NO. 75,724 IS TRANSFERRED TO THE COURT OF CRIMINAL APPEALS BY SEPARATE ORDER.

Jack E. Gordon, Jr., Messrs. Gordon and Gordon, Claremore, for petitioner.

Thomas C. Gillert, Specially Assigned Dist. Atty., Tulsa, for respondent.

Robert H. Henry, Atty. Gen., K.W. Johnston, Asst. Atty. Gen., Oklahoma City, amici curiae.

MEMORANDUM OPINION

OPALA, Vice Chief Justice.

[797 P.2d 336]

¶1 The dispositive issue to be decided here is whether the Governor may, in two separate consecutive acts, first appoint an "acting" successor of a district attorney whose resignation left the office vacant and then fill the same office by appointing another person for the full unexpired term. Our answer declares that by force of the applicable law the first appointee became invested with title to the office for the remainder of the resigned predecessor's term.

¶2 This controversy is over title to the office of district attorney for the Twelfth Judicial District. According to the stipulated facts a vacancy arose when the former office holder's resignation became effective March 1, 1990. The current term does not end until January 7, 1991. On April 6, 1990 the Governor appointed the petitioner as acting district attorney to succeed T. Jack Graves, the incumbent who had resigned, until a permanent district attorney is appointed and qualified or elected and qualified, whichever occurs earlier. On May 10, 1990 the Governor appointed the respondent to hold the same office for the remainder of the unexpired term. The first appointee neither resigned from nor abandoned his position, and, although he did not vacate the office, he has been "fired" by the respondent.

¶3 The petitioner (first "acting" appointee) brings this original action - one in the nature of quo warranto - to declare the Governor's subsequent appointment to be inefficacious.

¶4 Although the Governor alone has the authority of appointment to fill a state office vacancy,

¶5 An interim successor may be appointed only in specific, statutorily authorized and circumscribed instances - i.e., when a state officer pleads guilty or is convicted of a felony.

¶6 In sum, the Governor's power to fill vacancies created by the resignation of a state officer does not include the authority to limit or condition the term during which the appointee is to serve. By force of law that supplies the source for gubernatorial authority here under legal scrutiny the petitioner's appointment invested him with title to the district attorney's office for the entire remainder of his resigned predecessor's unexpired term.

¶7 Lastly, in a companion case, No. 75,724, the respondent seeks a prerogative writ to reinstate four juvenile delinquency cases alleged to have been wrongly dismissed. By a separate order issued today that cause is transferred to the Court of Criminal Appeals, which has exclusive jurisdiction to decide their fate in light of this opinion.

¶8 ORIGINAL JURISDICTION ASSUMED IN CAUSE NO. 75,720; WRIT IN THE NATURE OF QUO WARRANTO GRANTED CONFIRMING IN PETITIONER TITLE TO THE OFFICE; COMPANION CAUSE NO. 75,724 IS TRANSFERRED TO THE COURT OF CRIMINAL APPEALS BY SEPARATE ORDER.

¶9 HARGRAVE, C.J., and SIMMS, DOOLIN, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.

¶10 HODGES, J., dissents.

¶11 LAVENDER, J., not participating.

Footnotes:

1 See the provisions of 12 O.S. 1981 §§ 1531 and 1532, whose pertinent text is:

"[§ 1531:] The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action . . . . "[§ 1532:] Such action may be brought in the Supreme Court or in the district court, in the following cases:

1st, When 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;

"* * *

"6th, For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto." (Emphasis added.)

2 See Art. 6 § 13, Okl. Const., infra; 51 O.S.Supp. 1985 § 10 (a), infra.

The pertinent terms of Art. 6 § 13, Okl. Const., provide:

"* * * When any office shall become vacant, he [the Governor] shall, unless otherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed, and qualified according to law." (Emphasis added.)

The pertinent terms of 51 O.S.Supp. 1985 § 10 (a) provide:

"All vacancies in state offices, except in offices of the members of the Legislature, members of the House of Representatives from Oklahoma in the Congress of the United States of America and members of the Senate of the United States of America, shall be filled by appointment by the Governor. * * *" (Emphasis added.)

3 Burford v. Board of Com'rs, 63 Okl. 42, 162 P. 780, 782 (1917).

4 See Burford v. Board of Com'rs, supra note 3, 162 P. at 781 (the court's syllabus § 2); cf. State ex rel. Okl. Tax Com'n v. Mourer, Okl., 596 P.2d 882, (1979) (tax commission's appointee, who had filled a vacancy on Board of Equalization, was not divested of title to the position by another who was subsequently appointed to the same position by a different agency).

5 See 51 O.S.Supp. 1987 § 24.1 (A), whose pertinent terms are:

"Any elected or appointed state or county officer or employee who, during the term for which he was elected or appointed, is, or has been, found guilty by a trial court of a felony . . . shall be automatically suspended from said office or employment. The Governor shall appoint an interim successor to serve during the period of suspension of any county commissioner or any state officer other than a member of the State Legislature. * * *" (Emphasis added.)

6 51 O.S.Supp. 1987 § 24.1 (A).

7 See Territory v. Ashenfelter, 4 N.M. 93, 12 P. 879, 900-901 (1887), where the governor had filled a vacancy in the district attorney's office, and his subsequent appointment of another to the same office - before the term's expiration - was held invalid; cf. State v. Lexcen, 131 Mont. 161, 308 P.2d 974, 976-977 (1957), a case in which the Board of County Commissioners had initially filled a vacancy in the county attorney's office, but a newly composed board later declared the same office vacant, filling it again by appointing another person to hold it; the second appointment was held invalid.

8 See 10 O.S. 1981 § 1123 (A), whose pertinent terms provide:

"* * * [A]ppeals taken from a trial court's decision in a proceeding for an adjudication of juvenile delinquency or in a proceeding certifying a juvenile to stand trial as an adult or denying such certification shall be taken to the Court of Criminal Appeals in the same manner as other appeals are taken to the Court of Criminal Appeals of this state. . . ." (Emphasis added.)