# Ethics Commission v. Cullison

> Supreme Court of Oklahoma · March 30, 1993 · 64 O.B.A.J. 978

URL: https://www.frixlaw.com/law-library/cases/9534562

## Case

- **Full name:** ETHICS COMMISSION OF the STATE OF OKLAHOMA, Petitioner, v. Robert v. CULLISON, President Pro Tempore of the Oklahoma Senate and Glen D. Johnson, Speaker of the Oklahoma House of Representatives, as Representatives of the Oklahoma Legislature, Respondents
- **Court:** Supreme Court of Oklahoma
- **Decided:** March 30, 1993
- **Citations:** 64 O.B.A.J. 978; 850 P.2d 1069; 1993 OK 37; 1993 Okla. LEXIS 43; 1993 WL 89711
- **Precedential status:** Published
- **Opinion:** Concurrence by Opala
- **Judges:** Summers, Hodges, Lavender, Hargrave, Watt, Wilson, Opala, Simms, Kauger
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9534562

## How later opinions describe it (automated extraction)

- discussing federal district court's lack of jurisdiction in particular circumstance

## Opinion text

OPALA, Justice,
concurring in result.
The court reaffirms today its original cognizance to entertain this controversy and to craft, unhampered by the straitjacket of the ancient English writ system, 1 a remedy 2 that fits 3 this tendered *1081 complaint of governmental usurpation. 4 I concur in the result the court reaches today. I write separately to (1) explain the quintessence of the Supreme Court’s original jurisdiction 5 and its interplay with the prerogative writ system of the English remedial regime 6 and (2) focus on the outer limit of legislative immunity from suit under our constitution’s Speech and Debate Clause. 7
I
THE SUPREME COURT’S ORIGINAL JURISDICTION
The provisions of Art. 7, § 4, Okl. Const., 8 grant the Supreme Court. (1) appellate jurisdiction, (2) original jurisdiction and (3) superintending control 9 over courts and administrative agencies exercising adjudi *1082 cative powers. The limit of our original cognizance is measured not by the kind of personal command that would be issued under the label of some ancient writ but by the appropriateness of the controversy for our resolution in order to (a) finally settle a private right or define public conduct and (b) place that right or conduct on its proper track within the body of our law. 10 Although the tools given this court to effectuate its original jurisdiction 11 include writs of habeas corpus, mandamus, 12 quo warranto, 13 certiorari, 14 and prohibition, 15 the constitutional framers did not impose upon the Supreme Court a remedial freeze that restricts the exercise of original jurisdiction to the parameters of the ancient writs. 16 A contrary conclusion would foist on our system a ludicrous anachronism. It would uncritically accept as a given that at our constitution’s birth in 1907 the drafters had intended to return Oklahoma’s remedial regime to the already abolished writ system for but one judicial institution — her highest court. 17
*1083 Prerogative writs do not translate into jurisdiction; they rather afford examples of personal commands that may be used in the exercise of this court’s cognizance. Even the case that does not neatly fall within the framework of some prerogative writ may nonetheless be appropriate for this court’s assumption of original jurisdiction 18 if (1) it is otherwise fit for settlement by this court and (2) the orderly process of trial and review would be ineffective or inadequate to afford relief that is one’s due. 19 Both of these criteria are met today by the Commission’s quest for settlement of competing claims to regulatory power over ethics in government. 20
In sum, when invoking this court’s original jurisdiction, one need not pretend that one’s cause is remediable within the framework of some ancient prerogative writ; 21 rather, the pleader must convince this court that the tendered cause, like that of the Commission before us today, is an extraordinary justiciable controversy for which no effective or adequate relief is available from any other court.
II
LEGISLATORS’ CONSTITUTIONAL IMMUNITY FROM SUIT
As for Part II of today’s opinion, I concur only in the court’s pronouncement that this is a suit against the State itself 22 and that the Attorney General, as the chief law officer, may appear as her counsel. 23 Legislators are absolutely protected from suit calling for judicial inquiry into their performance “within the sphere of legiti *1084 mate legislative activity. ” 24 I would hence go farther than the court ventures today and place greater emphasis on the principle that legislators may not be haled into court, either to account for acts that occurred in the course of legislative process or for judicial inquiry into their motivation for those acts. 25 The legislative privilege has never been limited to words spoken in debate. 26 The constitutional immunity shields all legislation-related conduct, whether a legislator 27 be sued (1) personally, (2) in an official capacity, or (3) as the Legislature’s leader. 28
The U.S. Constitution’s Speech and Debate Clause has been given a broad construction to achieve its two-prong goal of (a) protecting against executive or judicial intrusion into the affairs of a co-equal branch and (b) preserving the legislature as a separate, independent and equal branch of government. 29 Our own constitution mandates no less protection for legislators. A simple instrument filed in court where the suit is pending as a legislator’s plea for constitutional immunity should be entitled to immediate attention. 30
This proceeding should not have been brought against the leaders of the two Houses. These officials are facially immune from suit. They were summoned for a sentence of nullity that would condemn, in whole or in part, the provisions of House Joint Resolution 1077. Legislators are not judicially accountable as enforcers or defenders of legislation, either individually or in a representative capacity. Had legislative immunity been invoked by the leaders of the two Houses who appear today as parties respondent, 31 their *1085 plea should have been granted and the Attorney General substituted in their stead. These leaders were compelled to hire counsel at public expense — a far-too-frequently recurring scenario that must be deterred. I would hence declare that every legislator who invokes constitutional immunity from suit for legislation-related conduct must at once be dismissed from the action.
SUMMARY
Writs, which in their prerogative form are mere remedial devices for redressing a variety of governmental usurpation and private abuse of power, do not define the breadth of our original cognizance. The barriers they erect are not jurisdictional but procedural. 32 As they lie in the domain of adjective law, these barriers set no limit on this court’s exercise of its, judicial power to craft other appropriate remedies. Upon assuming original jurisdiction of a controversy that is fit for this court’s resolution, that remedy will be fashioned which appears necessary to vindicate a party’s claim for relief.
Legislators must not be haled into court to answer for their legislation-related conduct. They are neither enforcers nor defenders of their labors’ product.
. In England an original writ commenced the action in a common law court. The writ not only gave the court subject matter jurisdiction, but also empowered the sheriff to compel the defendant to appear. The English sovereign was the "fountain of justice;” no cause could proceed without his authority and permission, signified by the writ's issuance. By contrast, our judiciary has always been a separate and coordinate branch of government. No special license or authority from any executive — by writ or otherwise — is required to set a court in motion. See Shipman on Common-Law Pleading § 3 (3d ed. 1923), citing Parsons v. Hill, 15 App.D.C. 532 (1900) (per Morris, J.) and Philadelphia, B. & W.R. Co. v. Gatta, 85 A. 721, 724-725 (Del.1913).
The King’s Bench used prerogative writs to exercise superintendence over inferior courts and to keep the latter tribunals within the proper bounds of their jurisdiction. Matney v. King, 20 Okl. 22 , 93 P. 737, 744 (1908). See J. Koffler and A. Reppy, Handbook of Common Law Pleading § 321 (1969); see abo infra notes 12, 14 and 15.
. The remedy we afford today, a declaration of rights, is not a new rubric of jurbdiction, but rather an affordable form of relief. Conoco, Inc. v. State Dept. of Health, Okl., 651 P.2d 125, 131 (1982); Sheldon v. Powell, 99 Fla. 782 , 128 So. 258, 262-263 (1930). Declaratory judgments are particularly useful in justiciable controversies where a plaintiff would otherwbe be required to act or refrain from acting at hb legal peril. Conoco, supra at 131.
. A declaration of rights may be all that b needed to settle a controversy. See State ex rel. Tax *1081 Com’n. v. Mourer, Okl., 596 P.2d 882, 887-888 (1979); Sadberry v. Hope, Okl., 444 P.2d 175, 178 (1968); Stone v. Hodges, Okl., 435 P.2d 165, 167 (1967).
. Legislative usurpation is not remediable by the English writ model because the English Parliament literally stands above the law; an English judge could be impeached for questioning the legality of legislative or of executive action that is immune. By contrast, our fundamental law, Art. 4, § 1, Okl. Const., expressly and inflexibly commands that the functions of government be divided into three departments, which provide checks and balances for each other. Sterling Refining Co. v. Walker, 165 Okl. 45 , 25 P.2d 312, 318 (1933). The provisions of Art. 4, § 1 are:
"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." [Emphasis added.]
In our tripartite system of government, legislative [and executive] actions may be tested for constitutional orthodoxy in the exercise of this court’s original cognizance. Jones v. Freeman, 193 Okl. 554 , 146 P.2d 564, 570-71 (1944), cert. denied, 322 U.S. 717 , 64 S.Ct. 1288 , 88 L.Ed. 1558 (1944). It is this court’s function to prevent governmental usurpation and to step in where judicial inaction would lead a high-level organ of state government to self-destruction. State ex rel. Blankenship v. Atoka County, Okl., 456 P.2d 537, 539 (1969) (now superseded on other grounds by statute; see Tulsa County v. Braswell, Okl., 766 P.2d 341 (1988)); Davis v. McCarty, Okl., 388 P.2d 480, 488 (1964).
For the pertinent text of Art. 7, § 4, Okl. Const., which grants this court original jurisdiction, see infra note 5.
. The pertinent provisions of Art. 7, § 4, Okl. Const., are:
"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. The Supreme Court ... shall have power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law and may exercise such other and further jurisdiction as may be conferred by statute. * * * ” [Emphasis added.]
. In Bellmon v. Barker, Okl., 760 P.2d 813, 816 (1988) (Opala, J., dissenting), I commented that no writ needed to be issued to settle that dispute, since a pronouncement would have sufficed. In this case, as in Barker, no ancient writ measures the breadth of our original cognizance. The claim now before us presents a justiciable controversy in which no other court can afford speedy and adequate relief. See State ex rel. York v. Turpen, Okl., 681 P.2d 763, 768 (1984) (Opala, J., concurring).
Writs are not immovable fixtures in our jurisdictional catalogue. Barker, supra at 816 (Opala, J., dissenting). See Morrow v. District of Columbia, 417 F.2d 728, 732-33 (D.C.Cir.1969), where the court holds that "prerogative writs are thus means to effectuate a court's jurisdiction; the writs by themselves cannot confer jurisdiction.” [Emphasis added.]
. The text of Art. 5, § 22, Okl. Const., provides:
"Senators and Representatives shall, except for treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, and, for any speech or debate in either House, shall not be questioned in any other place." [Emphasis added.]
. For the pertinent provisions of Art. 7, § 4, Okl. Const., see supra note 5.
. Original jurisdiction and superintendence, while separate and distinct concepts, are closely related. Superintendence, which is carried out by the court’s exercise of original jurisdiction, is not quite coextensive with the range of that cognizance. The object of superintendence is to keep courts and administrative agencies’ exercise of adjudicative powers within their proper sphere of activities. Art. 7, § 4, Okl., Const., supra note 5; Board of Com’rs of Harmon County v. Keen, 194 Okl. 593 , 153 P.2d 483, 485 (1944). See State v. District Court, 49 N.D. 27 , 186 N.W. 381, 385-86 (1921).
*1082 Superintendence places this court "in the same relation to the inferior courts of the state as the court of King’s Bench bore to the inferior courts of England, under the common law.” Matney, supra note 1 at 93 P. 744 . See State v. Kight, 49 Okl. 202 , 152 P. 362, 363-64 (1915); Keen, supra 153 P.2d at 484-85 ; see also Annotation, Superintending control over inferior tribunals, 112 A.L.R. 1351 (1938).
. Original cognizance is often referred to as "publici juris." This term is used when causes tendered to the court concern the entire state or one of its governmental subdivisions. Black’s Law Dictionary, p. 1099 (6th ed. 1990). Although public law is not a separate rubric of original jurisdiction, if important public rights are at stake in a tendered controversy, the court considers them as factors militating in favor of assuming original cognizance. See Turpén, supra note 6 at 768 (Simms, J., dissenting). The court is generally inclined to exercise original cognizance over a public-right controversy (a) when its importance and urgency demand immediate attention and (b) when lower courts would be ill-equipped to settle the dispute.
. Original jurisdiction was first established by the provisions of the now repealed Art. 7, § 2, Okl. Const, (ratified in 1907). Its text was essentially the same as that now found in Art. 7, § 4, Okl. Const. Repeal of the earlier Article 7 and the later version’s adoption were proposed by Laws 1967, p. 698, H.J.R. no. 508. The measure was approved at the election on July 11, 1967 (State Question No. 448, Legislative Referendum No. 164).
. Lord Mansfield, defining the scope of the writ of mandamus, stated that it was “to prevent disorder from a failure of justice and defect of [policing]. [I]t ought to be used on all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." State v. Ross, 76 Okl. 11 , 183 P. 918, 920 (1919), quoting from Rex v. Barker, 3 Burr. 1265, 97 Eng.Rep. (King’s Bench) 823 (1762).
. Although the writ of quo warranto was abolished by statute, its abrogation did not destroy the court’s jurisdiction over competing claims to an office. Mourer, supra note 3 at 885; New-house, infra note 16 at 110 P. at 1121-1122. See the pertinent terms of 12 O.S.1991 §§ 1531 and 1532, which are:
“[§ 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_” [Emphasis added.]
. By the use of certiorari King’s Bench (also known by its Latin name of Coram Rege) (1) kept inferior courts within their bounds, (2) exercised superintendence over usurpation of jurisdiction by inferior courts and (3) maintained the supremacy of the royal courts pronouncing common-law judicature. See Reppy, supra note 1 at § 321.
. A writ of prohibition afforded a remedy against governmental usurpation by judicial and petty officials of the Crown. See Shipman, supra note 1 at § 341.
. Newhouse v. Alexander, 27 Okl. 46 , 110 P. 1121, 1121-22 (1909); State v. Allen, 5 Kan. 124, 128 (1869); State ex rel. Attorney General v. Messmore, 14 Wis. 125, 129 (1861).
. Forms of action at common law were abolished at our statehood. St.1893 § 3882; R.L. 1910 § 4650; 12 O.S.1981 § 10; 12 O.S.1991 § 2002. Although the Code of Civil Procedure, which governed Oklahoma before its repeal in 1984, was designed to eliminate some of the extreme technicalities of common-law procedure, a pleader was still required to elect between inconsistent remedies. The legislature later adopted the federal notice pleading regime. See 12 O.S.1984 Supp. §§ 2001 et seq.; 12 O.S. 1991 § 2001 et seq. With its enactment, the doctrine of mandatory election of remedies before submission became an anachronism. 12 O.S.1991 § 2008(E)(2); Howell v. James, Okl., 818 P.2d 444, 446-448 (1991). If we were to measure the breadth of this court’s original jurisdiction by the fitness of some common-law writ *1083 for the occasion at hand, as the Attorney General counsels us to do, we would have to resurrect the abolished "forms of action," a solution hardly intended by the constitutional framers.
. A case is appropriate for the exercise of original cognizance only if the petitioner shows that adequate relief is unavailable in any other court. State v. McCullough, 67 Okl. 8, 168 P. 413, 414 (1917). See Rule 37, Rules of the Supreme Court of Oklahoma, 12 O.S.1991, Ch. 15, App. 1. An application to assume original jurisdiction must contain "the reasons ... such action or proceeding is brought in the Supreme Court instead of another court of competent jurisdiction and why original jurisdiction should be as- sumed_” [Emphasis added].
. Today's controversy is both (1) justiciable and (2) appropriate for today’s exercise of original cognizance. A justiciable controversy is a real and substantial cause which is appropriate for judicial determination, rather than a dispute or difference of hypothetical, abstract or academic nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 , 57 S.Ct. 461, 463 , 81 L.Ed. 617 (1937). The cause before us clearly meets the law’s justiciability requirement. Two high-level organs of state government are running on a collision course. The Commission is entitled to learn at the earliest time possible whether it must follow the norms of ethics prescribed by the Legislature or its own rules; it need not transgress legislative law to obtain a declaration of its invalidity. Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271 , 274 n. 12 (1982).
. This cause is pressed upon us for constitutional testing of the Legislature’s power over the rules promulgated by the Commission. Our governmental framework confines each organ to its assigned responsibility. "When any [governmental organ] acts, it is presumptively exercising the power the Constitution has delegated to it." I.N.S. v. Chadha, 462 U.S. 919, 951 , 103 S.Ct. 2764, 2784 , 77 L.Ed.2d 317 (1983). To maintain our tripartite system, “[tjhe hydraulic pressure inherent within each of the separate [departments] to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." Chadha, supra at 462 U.S. 951 , 103 S.Ct. 2784 .
. Today a pleader need not correctly identify a theory of recovery nor describe the remedy affordable for the asserted right’s vindication. Silver v. Slusher, Okl., 770 P.2d 878 , 881 n. 7 (1989), cert. denied, 493 U.S. 817 , 110 S.Ct. 70 , 107 L.Ed.2d 37 (1989); Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359 , 137 P.2d 934, 939 (1943). The court will craft the available relief which the facts justify. Doss, supra, 137 P.2d at 939 .
. See State ex rel. Department of Highways v. McKnight, Okl., 496 P.2d 775, 782-783 (1972), modified on other grounds in Schrom v. Oklahoma Industrial Develop., Okl., 536 P.2d 904, 907 (1975).
. See 74 O.S.Supp.1992 § 18b(3); State ex rel. Howard v. Oklahoma Corporation Commission, Okl., 614 P.2d 45, 49 (1980). The duties of the Attorney General set out in § 18b(3) are:
"To appear at the request of the Governor, the Legislature, or either branch thereof, and prosecute and defend in any court ... any cause ... in which the state may be a party or interested_" [Emphasis added.]
. Davis v. Passman, 442 U.S. 228 , 235 n. 11, 99 S.Ct. 2264 , 2272 n. 11, 60 L.Ed.2d 846 (1979), quoting from Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 , 95 S.Ct. 1813, 1820 , 44 L.Ed.2d 324 (1975).
Our Speech and Debate Clause was taken directly from the United States Constitution’s Art. I, § 6, cl. 1, which provides that senators and representatives "for any Speech or Debate in either House ... shall not be questioned in any other Place." [Emphasis added.] The origin of the Clause is attributed to the practice of the British Parliament. Kilbourn v. Thompson, 103 U.S. 168, 204 , 26 L.Ed. 377, 391 (1881), quoting from Story, Commentaries on the Constitution, § 866. See also United States v. Johnson, 383 U.S. 169, 177 , 86 S.Ct. 749, 754 , 15 L.Ed.2d 681 (1966). A suit against a member of the House of Commons in 1512 prompted Parliament to pass the first special immunity bill. See Strode's Case, discussed in Johnson, supra at 383 U.S. 182 n. 13, 86 S.Ct. 756 n. 13. The English Bill of Rights of 1689, which included a provision "[t]hat the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament,” appears to be the source of the privilege found in our 1776 Articles of Confederation. The latter privilege, with only a slight modification, was carried into the U.S. Constitution as the Speech and Debate Clause. See Kilbourn, supra at 103 U.S. 203 , 26 L.Ed. 391 ; Johnson, supra at 383 U.S. 177 -178, 86 S.Ct. 754 .
. U.S. v. Gillock, 445 U.S. 360, 366-367 , 100 S.Ct. 1185, 1190 , 63 L.Ed.2d 454 (1980).
. Kilbourn, supra note 24 at 103 U.S. 204 , 26 L.Ed. 391 -392.
. See, e.g., McCracken v. City of Lawton, Okl., 648 P.2d 18, 20 (1982), where we held a city's immunity protected it from liability for damages for harm dealt a landowner by its legislative action.
. Kilbourn, supra note 24 at 103 U.S. 204 , 26 L.Ed. 391 -392.
. Gillock, supra note 25 at 445 U.S. 369 , 100 S.Ct. 1191 . The United States Supreme Court recently reaffirmed that, although the Speech and Debate Clause’s protection may not be extended further than its purposes require, the legislative immunity it creates is beyond challenge. Forrester v. White, 484 U.S. 219, 224 , 108 S.Ct. 538, 542 , 98 L.Ed.2d 555 (1988), citing Gravel v. United States, 408 U.S. 606, 622-627 , 92 S.Ct. 2614, 2625-2687 , 33 L.Ed.2d 583 (1972); Hutchinson v. Proxmire, 443 U.S. 111, 123-133 , 99 S.Ct. 2675, 2682-2687 , 61 L.Ed.2d 411 (1979); Doe v. McMillan, 412 U.S. 306 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1973); United States v. Brewster, 408 U.S. 501 , 92 S.Ct. 2531 , 33 L.Ed.2d 507 (1973); Johnson, supra note 24 at 383 U.S. 169 , 86 S.Ct. 754 , Kilbourn, supra note 24 at 103 U.S. 168, 204 . See also Davis, supra note 24 at 442 U.S. 235 n. 11, 99 S.Ct. 2272 n. 11.
. A special appearance and plea of immunity would suffice to invoke a legislator's absolute shield of protection from suit for legislation-related conduct.
. Speaker of the House Johnson and Senate President Pro Tempore Cullison, who have been sued as "representatives of the legislature,” did not invoke their legislative immunity. That immunity question was raised by an intervenor, Darryl F. Roberts, Majority Floor Leader of the Oklahoma Senate.
. For an explanation of the writ system in the English law, see supra note 1. In the American law writs do not function as a license to invoke a court’s jurisdiction for a narrowly prelimited remedy.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9534562. Public record. Not legal advice.