Campbell v. White

¶1with whom LAVENDER, V.C.J., joins, dissenting.

¶2This case is not about judicial responsibility to compel legislative obedience to the single-subject command in Art. 5, § 56, Okl. Const.,1 but about the extent of constitutionally permissible judicial intrusion into the internal management of the legislative department.

¶3The specific issues presented here are: (a) Does a legislator have proper standing to press a challenge to a bill for noncompliance with the § 56 mandate? (b) Must the substantive-law provisions of the challenged appropriations bills be invalidated under the teachings of Johnson v. Walters ?2 (c) Does the separation-of-powers doctrine require this court to adopt a standard of review for gauging § 56 conformity that gives due deference to each house of the legislature to allocate subjects within a bill? and (d) Is a § 56 defect cured by the act’s inclusion into the next decennial recompilation? I would answer all four questions in the affirmative.

¶4Although standing to challenge an enactment’s validity for § 56 nonconformity has not been challenged, I would resolve this issue sua sponte for future guidance.3 My counsel to the court is that a legislator who complains that his/her voting power was impermissibly harmed or impaired by an improper combination of subjects in viola*264tion of § 56 standards has standing to challenge the enactment’s validity.

¶5If an appropriations bill clearly violates the § 56 mandate but its funding provisions are beyond the scope of review because of the mootness doctrine, I would follow the teachings of Walters and invalidate the bill’s substantive-law components. Today’s opinion, which applies the mootness doctrine to all the provisions (meaning appropriations as well as substantive-law portions) in both Senate Bill 142 [SB 142]4 and Senate Bill 725 [SB 725]5, falls short of giving the parties a complete remedy to which they are entitled under the court-crafted standard of review.

¶6The court today adopts the germaneness test6 — expressly rejecting the functionality approach7 — for determining a bill’s conformity to the § 56 single-subject command. In applying the germaneness test, the court holds that both bills offend the § 56 standard.

¶7I must recede from that part of today’s pronouncement which adopts germaneness as the sole test for § 56 compliance. Though I join the court’s resolve to enforce the single-subject mandate, I would adopt a test that will insulate us from day-to-day entanglement in the political thicket rather than one that saddles the court with the task of micromanaging another department of government. The proper allocation of a bill’s content is a managerial prerogative of each house.

¶8My counsel is that both the germaneness and functionality tests be allowed to coexist side by side. If a bill’s conformity to § 56 strictures is “fairly debatable” when gauged by either test, I would abstain from interfering with the legislature’s managerial judgment. This approach would allow the contested legislation to pass constitutional muster under both the functionality and germaneness tests. It is, in my view, fairly debatable whether the various agencies grouped in both of these bills under attack are functionally interlocked in furtherance of a common purpose and whether the subjects are reasonably related to a common theme.

¶9The final issue I would consider today is whether a § 56 defect in combining unrelated subjects is cured by the act’s inclusion into the next decennial recompilation. Because each compilation cures any defect in form that may taint a bill, I would not allow any legislation to become the target of invalidation for noncompliance with § 56 *265once an act has been carried into the succeeding decennial compilation.

¶10For all of these reasons, I would assume original jurisdiction but deny the petitioners’ quest for relief.

¶11I.

¶12A LEGISLATOR HAS STANDING WHEN HIS/HER VOTE ON A BILL HAS BEEN DILUTED AS A RESULT OF IMPERMISSIBLY COERCED DECISION-MAKING

¶13A.

¶14The History of Standing

¶15Standing in the federal-court system owes its origins to an historic practice by the English parliament of “allowing only those opponents of legislative proposals ... or interests [who] were directly and specially affected to be heard.” 8 Under this legislative procedure an opponent affected by the proposed legislation was said to have locus standi.9 The English judiciary adopted these interest-in-legislation criteria and required that the parties have an interest in the litigation. American courts did not embrace the doctrine until the early twentieth century.10

¶16B.

¶17Federal Standing

¶18Standing for any party to sue is part and parcel of the larger requirement of “justici-ability”. Four components of the justicia-bility doctrine are (1) ripeness, (2) mootness, (3) political question, and (4) standing.11 If a party can show that he/she passes muster under all of these justiciable factors, then a federal court has subject matter jurisdiction and can address the merits of the ease.

¶19Litigants who seek access to federal court for resolution of their dispute face two hurdles in meeting the threshold requirement of standing — “constitutional limitations of federal courts’ jurisdiction and prudential limitations on its exercise.”12 The constitutional aspect of standing is “whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.”13 “[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant14 ... and that the injury ‘fairly can be traced to the chal*266lenged action’ and ‘is likely to be redressed by a favorable decision....’” 15

¶20The “prudential” aspect of the standing doctrine addresses itself to the self-restraint by which federal courts limit their jurisdiction. Generally, the plaintiff can only assert that his own interests and legal rights have been injured, and not those of third parties.16 In addition, the plaintiff must show that his asserted injury would not be better addressed “in the representative branches of government,” and that his injury falls within the zone of interest protected by the statute or constitutional guarantee upon which his claim is based.17 Only if these aspects are met will the court balance the prudential considerations in evaluating whether to grant standing.18

¶21C.

¶22Oklahoma Standing Requirements

¶23Standing in Oklahoma refers to the legal rights of a person to challenge the conduct of another in a judicial forum.19The issue of standing may be raised at any stage and at any time during the judicial process by any party or sua sponte by the court.20 This threshold inquiry must reveal that the party has alleged: (1) an actual or threatened injury, i.e. injury in fact; (2) the relief sought would remedy the injury; and (3) the interest sought to be protected is within the zone of interest protected by statute or by the constitution.21 These interests must not only be “direct, immediate and substantial”,22 but are limited to those people who actually suffered the injury.23 Because these requirements coincide with the federal requirements, federal, jurisprudence construing standing for legislators is instructive.

¶24D.

¶25Standing For Legislators

¶26When a member of the law-making assembly initiates legal proceedings in his representational capacity as a congressman or a state legislator, he/she holds no elevated status in establishing standing. He/she must meet the same requirements for standing as any other litigant.24

¶27In order to satisfy the constitutional aspect25 some type of redressible injury must be alleged. Injuries suffered by legislators fall within three basic categories:26 (1) diluted vote, (2) usurpation of legislative power, and (3) diminished effectiveness in *267carrying out legislative duties absent a judicial declaration.

¶28Legislators have, unequivocally, a “plain, direct and adequate interest in maintaining the effectiveness of their votes."27 Any intrusion that works to squelch or infringe upon this core legislative function operates to dilute the constitutional 28 voting equality among legislators. Such an intrusion is a direct injury to a legislator’s interest in casting a meaningful vote.29

¶29In this case, the legislators assert they have been injured by being forced to vote “up” or “down” legislative bills which offend the § 56 single-subject mandate. Basically they claim that certain subjects were impermissibly combined, leaving them without the opportunity to segregate out the impermissible parts of each bill. Ac*268cording to these legislators, they were forced to vote for all of the bills’ contents in order to secure passage of the parts that benefited their constituency. Because the last sentence of § 56 mandates that certain subjects be voted on in separate bills, these legislators have an interest in this court determining whether their votes have been diluted.

¶30To satisfy the prudential aspects of the test for standing the legislators must claim: (a) they, rather than their constituency, were injured; and (b) they fall within the zone of interest to be protected under statutory or constitutional law.30

¶31The legislators assert here that their voting interest has been directly affected and that this interest falls within the zone of interest protected by Art. 5, § 56. Standing is implicit in any legislator’s complaint when a bill is challenged for any § 56 mis-combination of subjects. Such a complaint will always raise the issue of vote dilution. The burden is on the respondent to deny that it has occurred. Because these legislators have shown that their voting rights are protected by § 56, they fall within the zone of interest to be protected.

¶32II.

¶33JUDICIAL ENFORCEMENT OF § 56’s SINGLE-SUBJECT COMMAND

¶34A.

¶35The First-Generation Approach— Johnson v. Walters31

¶36The purpose of the last sentence of § 5632 — the single-subject mandate — is (a) to prevent legislators from having their vote impermissibly coerced or impaired by being confronted with improper choices and (b) to prevent the legislature from defeating the governor’s veto power in the same manner. In either case an elected official may be required to vote in favor of one provision which he disfavors in order to enact provisions which he supports. In both instances, an affirmative vote is the product of impermissibly coerced decision-making. Miscombination of subjects often leads to “logrolling” or improper inducement into voting for the lesser of the evils in the bill. The § 56 single-subject mandate was designed to prevent this kind of intimidation to make a bill saleable.

¶37Our jurisprudence teaches that in a pure (general) appropriations bill, agencies with unrelated functions may be included without offending the § 56 single-subject mandate.33 It is only when substantive-law components are included within an appropriations bill that the § 56 command is implicated. In Walters34 the court became belatedly converted to the concept of rigorously enforcing the § 56 single-subject mandate, announcing for the first time since statehood mandatory compliance with the § 56 strictures. In accordance with Walters, if a bill fails to pass constitutional “single-subject” muster, the governor must condemn it by the use of an appropriate veto message and return the bill to the legislature.35Walters expressly overruled Wiseman v. Oklahoma Board of *269Corrections,36 which gave birth to the rule that the governor must either accept or reject in toto a bill’s substantive-law provisions (Art. 6, § 11 veto power)37 and confined his line item veto power solely to the appropriation items (Art. 6, § 12 veto power).38

¶38While I joined the court’s “Rip Van Winkle conversion”, I counseled in Walters (a) against overruling Wiseman’s teaching and (b) against pronouncing that the governor must declare the bill violative of the single-subject command.39

¶39B.

¶40Post-Walters Conversion

¶41The court’s pronouncement today allows the substantive-law provisions of SB 142 and SB 725 to survive despite its alleged commitment to Walters. To be true to Walters, the appropriation provisions of a constitutionally infirm bill may escape the law’s sanction because of mootness, but its substantive-law component can be condemned as violative of § 56. By applying the mootness doctrine to both the appropriations and substantive-law portions of SB 142 and SB 725, the court in effect withholds from the petitioners the very remedy the teachings of Walters intended to afford.

¶42C.

¶43The Constitutional Standard For Gauging § 56 Single-Subject Compliance

¶44In this case we are faced with a new era and a first-impression question on the proper standard for gauging a bill’s conformity to the single-subject mandate. I would join the court in enforcing § 56 but by a different test. The court applies a germaneness test as the sole gauge for § 56 conformity to the single-subject mandate. The artificiality of today’s test rejecting the tendered functionality approach40 and adoption of *270the germaneness test for § 56 compliance will ultimately lead to judicial micromanagement of legislative decision-making on allocation of subjects among and within the bills to be processed. This strict test places the court in the political position of a floor manager charged with directing the legislative components of each bill. In addition, the germaneness approach provides the legislature with little guidance as to what subjects are properly includable within special appropriations bills. I would not put the legislature in a straitjacket by foisting on that department semantical word games.

¶45For these reasons, I would adopt both the germaneness and functionality approaches. If the § 56 conformity of subjects within a bill is fairly debatable, the legislature’s allocation presents a judgment call and falls within the protection of the managerial prerogative of each house in which the bill arises. In that event, we should abstain from judicial intervention.41 The principle, crafted by the U.S. Supreme Court for testing the validity of legislative zoning regulations,42 requires that courts defer to the policy-making judgment of the zoning boards where unconstitutional invasion of property rights is at issue, if the question is fairly debatable. This standard will shield us from stepping into a political fray to referee disputes between the departments of government or between or among members of different political parties.

¶46D.

¶47The Separation-of-Powers Mandate

¶48Judicial invasion into the legislature’s managerial prerogative to allocate subjects within a bill offends the separation-of-powers doctrine enjoined on this government by Art. 4, § 1, Okl. Const.43 No depart*271ment of government may possess “directly or indirectly an overruling influence over the others.”44 Each branch has a right to manage itself free from the intrusion of the others. The fairly-debatable standard of review gives due and proper deference to the legislature’s managerial prerogative — a by-product of its constitutional liberty to govern itself. Although each branch of government is not “hermetically sealed from one another”, “[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted,”45

¶49Courts should not be drawn into the political process and into interparty disputes on issues of policy unless there is a clear constitutional violation.46 The germaneness test is neither explicitly nor implicitly mandated by § 56 or by any other constitutional provision; neither is it a test to which this court has previously committed itself. The teachings in Rupe v. Shaw47are consistent with the view I espouse today and vary from that of the court. I would counsel that if the allocation of subjects within a bill presents a fairly debatable issue, the court should abstain from judicial intervention.

¶50E.

¶51Application of the Single-Subject Mandate Should Be Consistent Throughout the Oklahoma Constitution

¶52Legislative bills as well as initiative measures are bound by a similar single-subject mandate.48 It is my counsel that the court adopt a uniform method, using both the germaneness and functionality tests when examining the single-subject rule under either Art. 5, § 56 or Art. 24, § l.49 It is *272only logical that the court should adopt but one single-subject rule that would be uniformly applicable to legislative and people-generated lawmaking alike.50

¶53In addition, I espouse that a uniform fairly debatable standard be adopted in order to keep the court from politically entangling itself in both legislative and initiative measures. In Rupe this court cautioned against declaring legislative acts void for noncompliance with the single-subject command.51

¶54In In re Initiative Petition No. 349,52 I counseled the court to refrain from invalidating “as-yet-unenacted [initiative] measures in the political process” in order to distance the court from matters of policy. The fairly debatable approach would let the people and the elected lawmakers legislate in a more reasonable way.

¶55III.

¶56SB 142 and SB 725 ARE FREE OF CONSTITUTIONAL INFIRMITY

¶57I counsel today that the germaneness and functionality approaches may stand side by side. It is my firm belief that the court should interfere with the content of a bill only in a case of clear noncompliance.

¶58It Is Fairly Debatable Whether SB 142 Meets the Functionality and Germaneness Tests

¶59If it is fairly debatable whether the provisions assigned to a bill are “reasonably related to a common theme or purpose” 53 or “contemplate some functional interrelationship or interdependence”,54 I would allow the legislation to pass constitutional muster. Both SB 142 and SB 725 meet the germaneness and functionality tests, given the fairly debatable constitutional threshold.

¶60When analyzing whether a bill is germane, courts look to whether “[e]ach of [the measure’s] several facets bears a common concern, general object or general subject” 55 or whether the bill is reasonably related to a common theme. SB 142’s title indicates that the agencies included in that act are grouped together according to their function as “state cultural entities”. The “common concern” or “common theme or purpose” of SB 142 is the appropriation of monies for state cultural activities. It is fairly debatable whether all of the provisions in this legislative initiative do relate to its common theme and are hence germane to one another. Whether for the purpose of tourism and recreation, libraries, arts council, or historical society, all of the subjects are related to appropriating monies for cultural activities. The same can be established for SB 725 in providing for the appropriation of state business regulatory agencies in that all of the provisions are related to the appropriation of monies for agencies which regulate business within the state.

¶61Using a strict germaneness test, the court singles out four sections of SB 142 as offensive to the single-subject mandate: (a) § 16 reappropriates monies from the Oklahoma Department of Tourism and Recreation [Tourism Department]; (b) § 17 reap-propriates funds to the Tourism Department from the Department of Commerce which relate to the development of an industrial airpark economic study; (c) § 20 prohibits the closing of state parks without specific authorization of the legislature; and (d) § 23 establishes an internship pro*273gram for tourism management by the State Regents of Higher Learning in conjunction with the Tourism Department.

¶62My own analysis of these provisions leads me to conclude that they could all meet the germaneness rule, if the fairly-debatable standard is applied. This is so because they are related to a common theme or purpose. Section 20, for example, prohibits the Tourism Department from closing state parks for one year effective July 1, 1992, ostensibly because funds have been appropriated for that purpose. It is debatable whether state parks are reasonably related to cultural development and hence the inclusion of § 20 meets the ger-maneness standard. I would conclude it is fairly debatable whether all of these disputed subjects are reasonably related to this common theme or purpose of appropriating monies for the Tourism Department, and hence to cultural activities.

¶63The functionality test requires that the provisions of a bill “effectively interlock in a functional relationship”.56 The courts look to whether the measure is “functionally related in furtherance of a common underlying purpose.”57 This test determines whether an action or activity is appropriate58 to further the underlying common purpose. Again, it is fairly debatable whether the action taken by the legislature in allocating the subjects within SB 142 and SB 725 “contemplate some interrelationship or interdependence” and are functionally related in furtherance of a common purpose of appropriating monies to provide for cultural activities or the regulation of business, respectively.59 For example, as provided for in SB 142, ensuring that the state parks are not closed is functionally related to, or an appropriate action in furtherance of, the underlying purpose of the bill which is providing access to this cultural activity whether it be hiking, boating or camping.

¶64By strictly applying the germaneness test without the fairly debatable test, we arrive at a reductio ad absurdum: If these four provisions of SB 142 are nonger-mane within that bill, they are, for the reasons explained in the footnote, also potentially nongermane to any other legislation.60 The court’s germaneness analysis leaves the legislature without a workable standard to manage its own affairs. This will inevitably place the court in the position of having frequently to revisit these issues and will multiply the number of challenges made to legislative allocations.61

¶65*274IV.

¶66THE CURATIVE EFFECT OF A DECENNIAL RECOMPILATION

¶67Both a defect in title and noncompliance with the single-subject command are objections to the form of an act rather than to its substance or content. Allen v. Retirement System for Justices and Judges62teaches that a bill, defective when passed for want of a good title, becomes impervious to attack after it is carried into the next decennial recompilation. Under the constitutional mandate of Art. 5, § 43, Okl. Const.,63 the legislature must revise Oklahoma laws every ten years. If the substance of the revision is not otherwise prohibited by the Constitution the revision will stand as authorized.64 A statute’s incorporation in a decennial recompilation purges or cures any defect present in that enactment’s title.65 By relation back the incorporation gives the statute validity from the date of the original enactment in a flawed form.66

¶68Any legislation that contains miscombi-nations of discrete subjects that may be challenged for noncompliance with the § 56 single-subject command under the ger-maneness standard should be deemed cured with the offending act’s inclusion into the next decennial compilation. I would not — under Allen’s teachings — allow an act to be the target of invalidation for noncompliance if the act had been carried into the 1991 recompilation.

¶69SUMMARY

¶70A § 56 challenge triggers four threshold issues: (1) whether a legislator has proper standing to press a challenge for noncompliance with the § 56 single-subject command; (2) whether the non-mooted substantive-law provisions of the challenged bill must be invalidated under the teachings of Walters; (3) whether a standard of review must be adopted which gauges § 56 conformity with due reference under the separation-of-powers principle to the legislature’s power to allocate subjects within a bill; and (4) whether a § 56 defect may be cured by the act’s inclusion into the next decennial recompilation.

¶71Standing is a general requirement for any suit. Legislators who complain in this case that their vote has been impaired by the miscombination of subjects in a bill in violation of the single-subject mandate of Art. 5, § 56 have standing to seek relief.

¶72In following the -teachings of Walters, the court can condemn the substantive-law provisions of a constitutionally infirm bill, while the appropriation portions may escape § 56 sanction because of the mootness doctrine. If, as here, an appropriations bill were clearly violative of the § 56 mandate but its funding provisions were beyond the scope of review, I would nonetheless invalidate the bill’s substantive-law components.

¶73The necessity of compelling legislative compliance with Art. 5, § 56 cannot be questioned, but imposing a strict (germaneness) standard for its enforcement would entangle the judiciary in the allocation of subjects within a bill without due deference to another department. What may at first blush appear as a beneficial tool for curb*275ing logrolling becomes of secondary significance if viewed as intruding into the preserve of a separate service. The germaneness test alone puts this independence at risk. The level of judicial scrutiny should depend upon the threshold question of whether the allegedly defective bill meets the germaneness or functionality tests. If it is fairly debatable whether it meets either the germaneness or functionality tests, the bill passes § 56 strictures.

¶74I would hold that it is fairly debatable whether SB 142 and SB 725 meet the functionality and germaneness approaches for gauging § 56 conformity. To foist on the legislature a tougher standard would be to invite the court’s entry into the political thicket. In a debatable case a neutral court would stay out of partisan fights.

¶75Lastly, recompilation cures any defect in form. Should a legislator challenge a constitutionally infirm bill after its inclusion in a decennial recompilation, its nonconformity, if any, should be deemed corrected by the act of recompilation.

¶76For all of these reasons I would assume original jurisdiction but deny the writ.