Grand River Dam Authority v. State

Grand River Dam Authority v. State
1982 OK 60
645 P.2d 1011
Case Number: 55755
Decided: 05/11/1982
Supreme Court of Oklahoma

GRAND RIVER DAM AUTHORITY, A PUBLIC CORPORATION, APPELLANT,
v.
STATE OF OKLAHOMA AND JAN ERIC CARTWRIGHT, AS ATTORNEY GENERAL THEREOF, APPELLEES.

Appeal From the District Court, Craig County; Jess Clanton, Judge.

¶0 Action for declaratory and injunctive relief from the strictures imposed by Attorney's General Opinion No. 80-51. Trial court dismissed the case on the grounds that venue was improperly laid.

AFFIRMED.

Daniel W. Allan, Robert W. Sullivan, Jr., Vinita, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael L. Bardrick, Asst. Atty. Gen., for appellees.

OPALA, Justice:

[645 P.2d 1012]

¶1 The single first-impression issue in this case is whether the Attorney General, when [645 P.2d 1013] issuing formal written opinions, is governed by the Administrative Procedures Act, 75 O.S.Supp. 1978 § 301 et seq. We hold that he is not and affirm the ruling of the district court dismissing the action for lack of venue.

¶2 Appellant, Grand River Dam Authority, is a conservation and reclamation district. Appellee, the Attorney General, issued Opinion No. 80-51, which construed appellant's authority, powers, rights, duties and obligations under its enabling legislation, 82 O.S. 1981 §§ 861-890 . Appellant brought an action in the District Court, Craig County, seeking declaratory and injunctive relief and to have Opinion No. 80-51 overruled. Appellee entered a special appearance and plea to jurisdiction and venue, on the ground that venue did not lie in Craig County, but rather in Oklahoma County, under 12 O.S. 1971 § 133 . Appellant sought to convince the court that the special venue provision in 75 O.S.Supp. 1977 § 306 should govern the case. It allows a declaratory judgment suit that deals with an agency rule to be brought in the county in which the plaintiff resides. The district court ruled that the issuance of an opinion is a "quasi-judicial" activity of the attorney general and not a promulgation of a rule and, therefore, that the provisions of 75 O.S.Supp. 1977 § 306 of the Administrative Procedures Act [APA] did not apply. The court then granted appellee's motion to dismiss and this appeal followed.

I.

¶3 The Declaratory Judgment Act, 12 O.S.Supp. 1974 § 1651 et seq., does not contain any special venue provisions but instead states that "[t]he venue of said action shall be established by existing statutes."

"Actions for the following causes must be brought in the county where the cause, or some part thereof arose: . . . Second. An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties." [Emphasis added].

¶4 The attorney general is a public officer, and the issuance of a formal opinion is an official duty mandated by statute.

¶5 The law governing venue of actions against public officers is well settled in this state. We had occasion to revisit it recently in Oklahoma Ordnance Works Authority v. District Court of Wagoner County,

¶6 Any decision by a public officer emanates from the county of his official residence and therefore any cause of action connected with that decision arises in that county. This is so even though actions taken pursuant to that decision occurred in another county.

II.

¶7 Appellant presses for application to the action of the special venue provisions in § 306 of the APA. That Act provides:

"The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the county of the residence of the person seeking relief or, at the option of such person, in the county wherein the rule is sought to be applied, if it is alleged the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. . ."

Appellant contends that an opinion of the attorney general is a "rule" within the meaning of the APA, and so the present action could be brought in Craig County - the county of appellant's residence. Appellant also argues that, as a specific venue statute, this section should take precedence over the general venue provisions in 12 O.S. 1971 § 133 .

¶8 The terms "agency" and "rule", as used in the APA, are defined in the Act itself. Section 301 states "As used in this act: (1) `Agency' means any state board, commission, department, authority, bureau or officer authorized by the constitution or statutes to make rules or to formulate orders, except . . ."

¶9 The term "rule" is defined as "any agency statement of general applicability and future effect that implements, interprets or prescribes substantive law or policy, or prescribes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule but does not include (A) the issuance, renewal or denial of licenses; (B) the approval, disapproval or prescription of rates; (C) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; (D) interagency memoranda; or (E) declaratory rulings issued pursuant to Section 308 of this title".

¶10 The legislative history of the APA sheds little light on this problem. Two early drafts specifically excepted from the definition of "agency" the "Attorney General, in respect to his duties in relation to litigation or the furnishing of legal opinions."

¶11 Similar law in other states also is of little assistance. At present, thirty-six other jurisdictions have acts which define "rule" in terms of "interpreting", "implementing" or "prescribing" substantive law or policy.

¶12 Although the office of the attorney general is established by the state constitution,

¶13 Title 75 O.S.Supp. 1979 § 26.1 also requires the attorney general to issue opinions upon request: "It shall be the duty of the Attorney General after each session of the Legislature, upon request of the State [645 P.2d 1016] Auditor and Inspector, or a member of the Legislature, officially to construe any act enacted by said session of the Legislature affecting the authority and duties of officers and departments of the State, the several counties, cities and towns, or school districts. . .".

¶14 As the chief law officer of the state, the attorney general has been entrusted with the duty of providing legal guidance to public officers and of advising them on questions of law touching their official duties. Many public officials are not lawyers. Legal assistance often is needed in cases where, at the very least, the functional meaning of the law cannot be ascertained without the application of professional skills. Opinions sought are ordinarily confined to doubtful legal questions which have yet to be passed upon by the courts. The attorney general in this regard does not supplant the courts but rather gives his opinion for public officials' guidance until the questions concerning them are decided by the courts themselves.

¶15 In many states, an attorney's general opinion is merely advisory and need not be followed.

¶16 Because such an opinion is binding upon the official, it may properly be said to be a "rule". Appellee contends that these opinions are not "rules", as defined by the APA, because the only persons required to follow them are state agencies, boards and officers, and not the general citizenry of Oklahoma. As the Comment to the Revised Model Act explains, rules - like statutes - may be of "general applicability" even though they may be of immediate concern only to a single person, provided that the form is general and others who may qualify in the future come within its provisions.

¶17 Appellee also argues that these opinions are not "rules" because "[r]ules . . . in a legal sense, mean laws".

[645 P.2d 1017]

¶18 The ultimate question for answer before us is whether the issuance of an attorney's general opinion is to be governed by the APA. An examination of the statutory provisions for such opinions and those of the APA leads us to conclude that it is not. Section 302(a) of the APA provides that its requirements are "in addition to other rule-making requirements imposed by law."

¶19 First, § 305 of the APA provides that any "interested person may petition an agency requesting the promulgation, amendment or repeal of a rule".

¶20 Secondly, provided it "substantially" complies with the procedural requirements in § 303 of the APA,

¶21 Third, the 1978 version of § 308(f) of the APA provided that agency rules could be promulgated only while the legislature was in session, unless there was imminent peril to the public health, safety or welfare.

¶22 Fourth, the 1978 version of § 308(d) of the APA

¶23 Lastly, § 307 of the APA provides for "declaratory rulings as to the applicability of any rule or order of the agency."

¶24 The probed conflicts lead to two possible conclusions. The first is that the issuance of the opinions by the attorney general is governed by the APA except to the extent that other statutory provisions are inconsistent with that act. Such a conclusion would defeat a primary purpose of the APA, viz., to provide a uniform system of regulations concerning administrative procedures in and before all state rule-making authorities.

¶25 The cardinal rule for construction of statutes is to ascertain the intention of the legislature by consideration of the statutory language. Ordinarily, exceptions should not be read into the statute which are not made by the legislative body.

III.

¶26 Appellant argues, in the alternative, that an opinion of the attorney general should be considered an "order" resulting from the "individual proceedings" provided for by the APA, 75 O.S. 1971 § 309 . An affirmative determination would be of no help to appellant. First, the declaratory judgment provision in § 306 of the APA applies to a determination of the "validity or applicability of a rule," not of an "order". [Emphasis supplied]. Second, § 318 of the APA, which pertains to judicial review of a final order in an "individual proceeding", provides that "proceedings for review shall be instituted by filing a petition in the district court . . . within thirty (30) days after appellant is notified of the order. . ."

¶27 AFFIRMED.

¶28 IRWIN, C.J., BARNES, V.C.J., and HODGES, LAVENDER, DOOLIN, HARGRAVE and WILSON, JJ., concur.

¶29 SIMMS, J., concurs in result.

Footnotes:

1 12 O.S. 1961 § 1653 .

2 See 74 O.S.Supp. 1979 § 18b (e), (q); 75 O.S.Supp. 1979 § 26.1 .

3 Okl., 613 P.2d 746 [1980].

4 Oklahoma Ordnance Works Authority v. District Court of Wagoner County, supra note 3 at 750.

5 Oklahoma Ordnance Works Authority v. District Court of Wagoner County, supra note 3 at 750; Huerter v. Hassig, 175 Kan. 781, 267 P.2d 532, 535 [1954]. See also State v. District Court of Bryan County, Okl., 290 P.2d 413 [1955].

6 Hillcrest Medical Center v. Lee, Okl., 575 P.2d 971 [1978]; Office of the Governor - Dept. of Industrial Dev. v. Dalton, Okl., 560 P.2d 971 [1977]; State ex rel. Director of Alcoholic Beverage Control Board v. Smith, Okl., 519 P.2d 477 [1974].

7 75 O.S.Supp. 1977 § 306 .

8 75 O.S.Supp. 1978 § 301 (1).

9 75 O.S.Supp. 1978 § 301 (2).

10 See 1 Cooper, State Administrative Law 108 [1965].

11 Proposed Act on Administrative Law Procedures, § 1(1)(d), Report of Committee on Administrative Law and Procedure, 23 OBAJ 1550, 1554 [1952]; id., § 1(1)(e), 25 OBAJ 1941, 1942 [1954].

12 Merrill, Oklahoma's New Administrative Procedure Act, 17 Okl.L.Rev. 1 [1964].

13 Alaska Stat. § 44.62.640(2); Ariz. Rev. Stat. Ann. § 41-1001(7); Ark.Stat.Ann. § 5-701(c); Cal.Govt.Code § 11342(b); Colo. Rev. Stat. Ann. § 24-4-102(15); Conn. Gen. Stat. Ann. § 4-166(7); D.C. Code Ann. § 1-1502(6) ("rule"), § 1-1502(17) ("regulation"); Fla. Stat. Ann. § 120.52(14); Ga. Code Ann. § 3A-102(f); Hawaii Rev.Stat. § 91-1(4); Idaho Code § 67-5201(7); Ill.S.H.A. ch. 127, § 1003.09; Iowa Code Ann. § 17A.2(7)(e); La. Rev. Stat. Ann. § 49:951(6); 5 Me. Rev. Stat. Ann. § 8002.9A; Md. Ann. Code, Art. 41, § 244 (b); Mass. Gen. Laws Ann. ch. 30A, § 1 [30A-1](5); Mich. Comp. Laws Ann. § 24.207; Minn. Stat. Ann. § 15. 0411, subd. 3; Miss. Code Ann. § 25-43-3(f); Mo. Ann. Stat. § 536.010(4) (Vernon); Mont. Code Ann. § 2-4-102(10); Neb. Rev. Stat. § 84-901(2); Nev.Rev.Stat. § 233B.038; N.H. Rev. Stat. Ann. 541-A:1(IV); N.Y. McKinney's State Admin. Procedure Act § 102(2)(a); N.C. Gen. Stat. § 150A-10; N.D. Cent. Code § 28-32-01(2); R.I.Gen.Laws Ann. § 42-35-I(g); S.D. Codified Laws Ann. § 1-26-1(7); Tenn. Code Ann. § 4-5-102(7); 3 Vt. Stat. Ann. § 801(9); W. Va.Code Ann. § 29A-1-I(c); Wis. Stat. Ann. § 227.01(9); Wyo. Stat. 1977 § 9-4-101(a)(vii).

14 Conn. Gen. Stat. Ann. § 4-166(1) (excludes attorney general from definition of "agency"); Fla. Stat. Ann. § 120.52(14)(b); Iowa Code Ann. § 17A.2(7)(e); Mich. Comp. Laws Ann. § 24.207(b); Minn. Stat. Ann. § 15. 0411, subd. 3(e); Mo. Ann. Stat. § 536.010(4)(e) (Vernon); Mont. Code Ann. § 2-4-102(10)(b); N.D. Cent. Code § 28-32-01(2)(i); S.D. Codified Laws Ann. § 1-26-1(7)(c).

15 Okl.Const., Art. 6 § 1.

16 Council 81, Am. Fed. of State, County and Municipal Emp. v. State Dept. of Finance, 288 A.2d 453, 455 [Del. Ch. 1972]; Glimpse v. Bexar County, 160 S.W.2d 996, 998-999 [Tex.Civ. App. 1942]; Senske v. Fairmont & Waseca Canning Co., 232 Minn. 350, 45 N.W.2d 640, 646-649 [1951]; Holcombe v. Mobile County, 26 Ala.App. 151, 155 So. 638, 639 [1934].

17 Rasure v. Sparks, 75 Okl. 181, 183 P. 495 [1919].

18 Pan American Petro. Corp. v. Board of Tax-Roll Cor. of Tulsa County, Okl., 510 P.2d 680 [1973].

19 Revised Model Administrative Procedure Act § 1(7), Comment, 14 U.L.A.Civil Proc. 357.

20 State v. Freeman, Okl., 370 P.2d 307, 309 [1962].

21 State v. Freeman, supra note 20 at 310; 1 Cooper, State Administrative Law 108 [1965]; 2 Davis, Administrative Law Treatise § 7:8(a) at 36 [2d Ed. 1978].

22 See Tweedy v. Oklahoma Bar Association, Okl., 624 P.2d 1049 [1981]; Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 [1980]; Lathrop v. Donohue, 367 U.S. 820, 81 S. Ct. 1826, 6 L. Ed. 2d 1191 [1961].

23 75 O.S. 1971 § 302 (a).

24 For example, 74 O.S.Supp. 1978 § 20 (A) provides for annual publication of all written opinions promulgated by the Attorney General; and 74 O.S.Supp. 1979 § 18b (l) requires the Attorney General to keep and file copies of all opinions and to index them according to the subject matter and section of the law construed. These requirements are not necessarily inconsistent with the publication and filing requirements of the APA, 75 O.S. 1971 §§ 302-305, 308.

25 75 O.S. 1971 § 305 .

26 75 O.S.Supp. 1978 § 301 (9).

27 74 O.S.Supp. 1979 § 18b (e), (q); 75 O.S.Supp. 1979 § 26.1 .

28 75 O.S. 1971 § 303 (c).

29 See 74 O.S.Supp. 1979 § 18b (e), (q); 75 O.S.Supp. 1979 § 26.1 .

30 75 O.S.Supp. 1978 § 308 (f). This section was amended in 1981 and the subsection in question was renumbered § 308(d).

31 75 O.S.Supp. 1978 § 308 (d). This section was amended in 1981 and renumbered as § 308(b).

32 Pan American Petro. Corp. v. Board of Tax-Roll Cor. of Tulsa County, supra note 18 at 681; State v. District Court of Mayes County, Okl., 440 P.2d 700 [1968].

33 75 O.S. 1971 § 307 .

34 75 O.S.Supp. 1978 § 301 (2)(E). It should be noted that, although this subsection refers to "declaratory rulings issued pursuant to Section 308 of this title", this is obviously a mistake in drafting, since declaratory rulings are treated in § 307. The mistake probably is due to the fact that the original version spoke of "declaratory rulings issued pursuant to Section 8", which is the corresponding section in the 1961 Revised Model Act, and that renumbering did not reflect properly amendments made when the APA was enacted in this state.

35 Trask v. Johnson, Okl., 452 P.2d 575 [1969].

36 75 O.S.Supp. 1963 § 327 .

37 The 1979 amendment to 75 O.S. 1971 § 26.1 only changed "State Examiner and Inspector" to "State Auditor and Inspector". The amendments to 74 O.S.Supp. 1976 § 18b changed "county attorneys" in subsection (e) to "district attorneys" and added new subsection (q).

38 Trask v. Johnson, supra note 35 at 577.

39 Udall v. Udall, Okl., 613 P.2d 742 [1980].

40 Okl., 416 P.2d 860 [1966].

41 Formerly 69 O.S. 1961 §§ 651-687 . This Act was repealed by the Highway Code of 1968 and the current provisions are codified in 69 O.S. 1968 § 1701 et seq.

42 Application of Oklahoma Turnpike Authority, supra note 40 at 868.

43 AMF Tubescope Co. v. Hatchel, Okl., 547 P.2d 374 [1976].

44 Texas Cty. Irrigation v. Cities Service Oil Co., Okl., 570 P.2d 49 [1977].

45 AMF Tubescope Co. v. Hatchel, supra note 43 at 379.

46 75 O.S.Supp. 1977 § 318 (2).