FENT v. STATE ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY

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FENT v. STATE ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY
2009 OK 15
214 P.3d 799
Case Number: 106611
Decided: 03/24/2009

THE SUPREME COURT OF THE STATE OF OKLAHOMA

JERRY FENT, as a resident taxpayer, citizen and voter of the State of Oklahoma, and all other similar persons, Petitioner,
v.
STATE OF OKLAHOMA, ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Respondent.

ORDER

Original jurisdiction is assumed. Okla. Const. art. 7, §4. A written opinion from the Court will follow. However, today we determine that Senate Bill No. 1374, Okla. Sess. L. 2008, Ch. 431, §§2 and 3, insofar as it pertains to the Oklahoma Conservation Commission and the River Parks Authority, is hereby declared unconstitutional and void, because the enactment violates the one-subject rule mandated by the terms of art. 5, §57 of the Oklahoma Constitution.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 26th DAY OF FEBRUARY, 2009.

/S/CHIEF JUSTICE

EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, JJ., concur.

WINCHESTER, COLBERT, JJ. concur in result.

REIF, J., dissents.

JERRY FENT, as a resident taxpayer, citizen and voter of the State of Oklahoma, and all other similar persons, Petitioner,
v.
STATE OF OKLAHOMA, ex rel., OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Respondent.

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR DECLARATORY RELIEF

¶0 The petitioner, Jerry R. Fent, challenges Senate Bill No. 1374, Okla. Sess. L. 2008, Ch. 431, §2 and §3 as violating the single subject rule mandated by art. 5, §57 of the Oklahoma Constitution. The bill concerns authorization for the Oklahoma Capital Improvement Authority to issue bonds for three projects. We assume original jurisdiction and hold that: 1) the petitioner is not precluded from challenging §2 and §3 of the legislation, even though the bonds authorized by §1 have issued; and 2) §2 and §3 of Senate Bill No. 1374 are unconstitutional and void because the enactment violates the single subject rule mandated by the terms of art 5, §57 of the Oklahoma Constitution.

ORIGINAL JURISDICTION ASSUMED;
DECLARATORY RELIEF GRANTED.

Jerry R. Fent, Oklahoma City, Oklahoma, Pro Se Petitioner.
Lynn C. Rogers, Scott D. Boughton, Assistant Attorneys General, Oklahoma City, Oklahoma, for Respondent.

KAUGER, J.

¶1 The first impression issues presented are: 1) whether the petitioner is precluded from challenging only a portion of Senate Bill 1374, Okla. Sess. L. 2008, Ch. 431, §2 and §3, as unconstitutional;

FACTS

¶2 Senate Bill 1374 of the 2008 Second Session of the 51st Legislature (SB 1374), authorizes the Oklahoma Capitol Improvement Authority (OCIA) to issue obligations to finance projects for the Native American Cultural and Educational Authority, the Oklahoma Conservation Commission, and the River Parks Authority. The petitioner, Jerry R. Fent (Fent/petitioner), challenges the validity of SB 1374 and asserts that it violates article 5, §57 of the Oklahoma Constitution because it includes more than one subject. Because the bonds have already been issued for §1 of the bill (the portion concerning the Native American Cultural and Educational Authority), Fent only seeks to have §2 and §3 of the bill declared unconstitutional and void.

¶3 Conversely, the respondent, the State of Oklahoma (respondent/State) argues that because the bonds have already issued for §1, the petitioner should be prevented from challenging any portion of the bill. The State also contends that even if Fent were allowed to challenge it, the remainder of the bill is constitutional because the term "subject" relates to "all matters having a logical or natural connection," and the legislation concerns only one subject. We assumed original jurisdiction

¶5 Both the petitioner and respondent correctly note that the bonds for the first section of the bill have already been issued and that the petitioner failed to timely protest that section. The Attorney General has yet to file an executed certificate of regularity for the second and third sections of the bill. The State asserts that Fent must challenge the validity of the entire bill, not just a portion of it, and because he failed to timely protest the first section, he should be precluded from protesting the other sections.

¶6 Under

¶7 In Fent v. Oklahoma Capitol Improvement Authority,

¶8 Title

¶9 This argument is unconvincing for several reasons. First, the petitioner is not challenging the bonds which have already been issued. Second, nothing in either

II.
¶10 SENATE BILL NO 1374 VIOLATES THE SINGLE SUBJECT RULE OF ART. 5, §57 OF THE OKLAHOMA CONSTITUTION.

¶11 The petitioner argues that Senate Bill 1374 violates the single subject rule of art. 5, §57 of the Oklahoma Constitution because it addresses the separate subjects of bond issuance for: 1) the Native American Cultural and Educational Authority; 2) the State's Oklahoma Conservation Commission; and 3) a local River Parks Authority. He seeks a writ declaring §2 and §3 of the new law unconstitutional. The respondent contends that the bill is constitutional because it addresses the single subject of approving funding of capital projects by state agencies through a common financing mechanism -- revenue bonds issues by the OCIA.

¶12 The issue of whether the Legislature is constitutionally limited to one-subject legislation was settled in 1991 in Johnson v. Walters,

¶13 In Campbell v. White,

. . .We are not free to so expand the meaning of constitutional provisions through the post-hoc application of an inconsistent functionality test. To do so would allow the Constitution to be read as permitting that which it was clearly meant to prohibit. The clear language of art. 5, §56 requires that all special appropriations bills embrace a single subject. Because Senate Bill 142 and Senate Bill 725 contain a multiplicity of provisions unrelated to a common theme or purpose, they are unconstitutional.

This is the is the second time in less than two years that this Court has been called upon to determine whether legislatively enacted laws are unconstitutional for violation of the single-subject mandate. . . We trust a third opinion will not be necessary. Our consideration for the practical operations of government should not be understood to be a shield for the continued enactment of unconstitutional laws. Although we are sympathetic with the time constraints the Legislature faces in session, this Court is bound to uphold the Constitution -- we are prepared to do so.

¶14 Art. 5, §57 of the Oklahoma Constitution provides: "Every act of the Legislature shall express but one subject, which shall be clearly expressed in its title. . . ." This provision is commonly known as the "single subject rule." The purposes of the single subject rule are: 1) to ensure that the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation;

¶15 These purposes have been recognized by the Court since statehood. In In re County Commissioners of Counties Comprising Seventh Judicial Dist.,

. . .Each subject brought into the deliberation of the legislative department of the government is to be considered and voted on singly, without having associated with it any other measure to give it strength. Experience had shown that measures having no common purpose, and each wanting sufficient support on its merits to secure its enactment, have been carried through legislative bodies and enacted into laws. when neither measure could command or merit the approval of a majority of that body.

¶5 The other abuse against which this provision was levied was to prevent matters foreign to the main objects of a bill from finding their way into such enactment surreptitiously. Substantially such a provision is found in many of the state Constitutions, and, as is usual in such cases, judges have differed in their interpretation of the same. The best-considered cases, however, appear to have established the following propositions: That the clause is mandatory; that its requirements are not to be exactingly enforced, or in such a technical manner as to cripple legislation; that the title of a bill may be very general, and need not contain an abstract of the contents of the bill, or specify every clause therein, it being sufficient if they are all referable and cognate to the subject expressed. Everything which is necessary to make a complete enactment, or to result as a complement of the thought therein contained is included in and authorized by such title expressed in general terms. . .

¶16 The clear language of art. 5, §57 of the Oklahoma Constitution requires that all Legislative acts shall embrace but one subject. This Court interprets the single subject rule using a "germaneness" test: if the provisions are germane, relative, and cognate to a readily apparent common theme and purpose, the provisions are related to a single subject.

While a passing glance at these cases may seem to bolster the proponent's conception of an expansive germaneness test, a reader of these cases must be mindful of the instruction of our decision in In re Initiative Petition No. 314,

¶17 The respondent cites to six cases which involved legislation that, according to the respondent, contained multiple "bond" subjects which were approved by the Court.

¶18 Our recent cases in which we addressed multi-subject legislation provide guidance. In Weddington v. Henry,

¶19 In re Initiative Petition No. 382, State Question No. 729,

¶20 However, in Initiative Petition No. 382 we expressly rejected any broad, expansive, approach that may have been taken in prior cases and we do so again today.

Campbell v. White

¶21 In Campbell v. White,

¶22 Perhaps the most strikingly similar cause is the case of Johnson v. Walters,

¶23 The state contends that the provisions are related because they involve water or some type of flood control. This argument is unconvincing. The statute involves three separate bond issues and three separate entities with three separate purposes and for this constitutional analysis, we must examine the entire statute as it was originally enacted. The bonds for each entity are issued separately. Because they are so unrelated, it would appear that this is the quintessential logrolling example -- something for Oklahoma City, something for Tulsa, and something for the rest of the state. The provisions in the statute are so unrelated that those voting on the law would without a doubt be faced with an unpalatable all-or-nothing choice.

CONCLUSION

¶24 Does every bond issuance measure have to be brought individually, by separate statutes? Probably not, but those which are brought together within one statute must pass constitutional muster and at the very least have some semblance of relation to each other and must not be misleading or provide the voter or legislator with an all-or-nothing choice. Because §2 and §3 of Senate Bill No. 1374, Okla. Sess. L. 2008, Ch. 431 fail to meet the germaneness test, these sections are unconstitutional and void pursuant to Okla. Const. art. 5, §57. However, §1 of the bill remains intact because it was not challenged by this proceeding.

ORIGINAL JURISDICTION ASSUMED;
DECLARATORY RELIEF GRANTED.

EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, COLBERT, JJ., concur.

WINCHESTER, J., concurs in result.

REIF, J., dissents.

OPALA, J., concurring in judgment but not in Court's pronouncement.

FOOTNOTES

1 Senate Bill No. 1374 is found at Okla. Sess. L. 2008, Ch. 431 and is too long to provide in its entirety. Section 1 authorizes the Oklahoma Capital Improvement Authority (the Authority) to issue obligations for the purposes of constructing a Native American cultural center and museum for the Native American Cultural and Educational Authority. Section 2 authorizes the Authority to issue obligations for the purposes of constructing, repairing, and rehabilitating flood control dams, roadside water erosion, riparian restoration, and purchase of necessary equipment in various counties throughout the State with the assistance of local conservation districts. Section 3 authorizes the Authority to issue obligations to acquire real property, together with improvements located thereon, and personal property for purposes of constructing Zink Dam improvements, stream bank stabilization and two additional low water dams on the Arkansas River in Tulsa County. The project will be coordinated with representatives of the City of Tulsa, Tulsa County and surrounding communities, the Indian Nations Council of Governments and the United States Army Corps of Engineers. Section 4 declares the legislation immediately necessary for the preservation of the public peace, health and safety.

2 The Oklahoma Constitution, art. 5, §57 provides:

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 law as may not be expressed in the title thereof. See also Weddington v. Henry, 2008 OK 102, ¶1, ___ P.3d ___ ; Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶30, 184 P.3d 467; In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶18, 142 P.3d 400; Morgan v. Daxon, 2001 OK 104, ¶1, 49 P.3d 687; Campbell v. White, 1993 OK 89, ¶20, 856 P.2d 255; Johnson v. Walters, 1991 OK 107, ¶22, 819 P.2d 694.

3 Title 73 O.S. Supp. 2002 §160 provides:

The Oklahoma Capitol Improvement Authority may file an application with the Supreme Court of Oklahoma for the approval of bonds issued hereunder, and exclusive original jurisdiction is hereby conferred upon the Supreme Court to hear and determine each application. The court shall give the applications precedence over the other business of the court and consider and pass upon the applications and any protests which may be filed thereto as speedily as possible. Notice of the hearing on each application shall be given by notice published in a newspaper of general circulation in the state that on a day named the Authority will ask the court to hear its application and approve the bonds. The notice shall inform all persons interested that they may file protests against the issuance of the bonds and be present at the hearing and contest the legality thereof. The notice shall be published one time not less than ten (10) days prior to the date named for the hearing and the hearing may be adjourned from time to time in the discretion of the court. If the court shall be satisfied that the bonds or any portions thereof have been properly authorized in accordance with this act and the Constitution of Oklahoma, and that when issued they will constitute valid obligations in accordance with their terms, the court shall render its written opinion approving the bonds and shall fix the time within which a petition for rehearing may be filed. The decision of the court shall be a judicial determination of the validity of the bonds, shall be conclusive as to the Authority, the State of Oklahoma, its officers, agents and instrumentalities, and all other persons, and thereafter the bonds so approved and the rents and revenues pledged to their payment shall be incontestable in any court in the State of Oklahoma.

Additionally, 73 O.S. 2001 §158 vests exclusive jurisdiction over any litigation involving the validity of any bonds issued under the act. It provides in pertinent part:

Within ten (10) days after the sale or sales of said bonds, the Attorney General of the State of Oklahoma shall examine all of the proceedings of the Authority and all resolutions passed and actions taken by it in connection with the authorization, issuance and sale of such bonds and shall, if he finds such bond proceedings and sale to be constitutional and lawful, execute his certificate and file the same of record in the office of the Secretary of State of the State of Oklahoma . . .

Upon the filing of such certificate, bonds issued pursuant to proceedings so examined by the Attorney General shall be incontestable for all purposes upon the expiration of thirty (30) days from the date of such certificate, unless suit be brought in the Supreme Court of Oklahoma prior to the expiration of said period as provided herein. A facsimile of such Attorney General's certificate shall appear on each bond so issued. The Supreme Court of Oklahoma is hereby vested with exclusive jurisdiction over any litigation involving the validity of any bonds issued under this act.

Both the petitioner and respondent acknowledge that this Court has jurisdiction over this matter as it involves a determination of the validity of a bond issuance. Both parties agree that because the matter is one of great public importance as well, original jurisdiction is warranted. Pursuant to 73 O.S. Supp. 2002 §160 and 73 O.S. 2001 §158, this Court is warranted in assuming original jurisdiction.

4 Title 73 O.S. Supp. 2002 §160, see note 3, supra.

5 Title 73 O.S. Supp. 2002 §160, see note 3, supra.

6 In Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, 984 P.2d 200, cert denied 528 U.S. 1021, 120 S. Ct. 531, 145 L.Ed.2d. 411, the petitioners challenged the statutes, arguing that the bonds would create prohibited debt in violation of the Okla. Const. art. 10, §23 and §25 (balanced budget provisions) without a vote of the citizens. They also argued that the statutes were passed in violation of the strictures of Okla. Const. art 5, §33.

7 Title 73 O.S. 2001 §158, see note 3, supra.

8 The State relies on equity to resist the petitioner's challenge. It insists that the petitioner should be held to have waived a challenge or should at least not be allowed to assert a challenge because he did not take issue with the statute before a portion of the bonds issued or in a more timely manner. Although it acknowledges that the Court has discretion to preclude the petitioner's challenge, the State offers no real reason to apply equitable principles here, other than its argument that some of the bonds have already issued. The State's argument that because the bond issuance has already begun, the rights of the bondholders acting in good faith on their validity and enforceability would be impaired and such an impairment is prohibited by the Okla. Const. art 2, §15 is without merit. Even if this provision were applicable, no contractual obligations are impaired by the challenge to unissued bonds. Art. 2, §15 provides:

No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of pecuniary penalties.

9 Title 73 O.S. Supp. 2002 §160, see note 3, supra; Title 73 O.S. 2001 §158, see note 3, supra.

10 Title 73 O.S. Supp. 2002 §160, see note 3, supra. Beauchamp v. Oklahoma City, 1970 OK 192, 477 P.2d 51, cert. denied, 400 U.S. 917, 91 S. Ct. 175, 27 L. Ed. 2d 156, wherein the Court gives, in ¶15, an example as follows:

. . .In many instances, the Bond Commissioner is requested to consider the legality of only a part or a series of the bonds that have been approved at a bond election. Thereafter, he may be requested to consider another part or another series of the bonds that a municipality desires to sell that had been approved at the previous election. As an example: General obligation bonds are approved at an election held in February, 1969. On June 1, 1969, the Bond Commissioner approves the issuance of a certain series of the bonds approved at the February 1969, election. Thirty days after the Bond Commissioner has acted, his determination is no longer open to challenge. Thereafter, the Bond Commissioner approves another series of bonds which were voted upon and approved at the February, 1969, bond election. Thirty days after the Bond Commissioner has acted, his determination is no longer open to challenge. . . .