Keating v. Johnson

OPALA, Justice,

concurring.

I write separately to explain why I join in today’s refusal to assume original jurisdiction over the governor’s request for settlement of the constitutional issue tendered. 1

Fundamental fairness in litigation process cannot be afforded except within a framework of orderly procedure. 2 No area of the law may lay claim to exemption from the range of orderly procedure’s basic strictures. 3 The sparing use of our original jurisdiction is necessitated by the fundamental law’s mandate for a tripartite division of governmental powers. 4 This court’s original cognizance should not be available to settle all constitutional issues in dispute between the executive and legislative branches. If judicial power could indeed be harnessed by mere request from the legislative or the executive department, the judiciary would become but an appendage to those political branches and an active, day-to-day participant in the government’s policymaking process. Judicial institutions could not remain true to their constitutionally-mandated posture of absolute detachment and neutrality 5 if they were to become indirect policymakers, *60 functioning at the beck and call of the government’s political organs.

The affairs of State must be managed solely by the legislative and executive departments — the political organs for policy-making. 6 As a nonpolitical dispute-settling service, the judiciary has no role in fashioning governmental policy. Respect for our scheme of tripartite distribution of powers demands that the judiciary be free from a litigant-commanded intrusion into the official relationship between the legislative and executive policymakers. 7

Although Oklahoma’s legal system is not bound by the restraints of the federal case- or-controversy requirement, 8 our law’s justi-ciability concept imposes an equally rigid fetter. 9 Judicial cognizance cannot be invoked by a non-justiciable controversy — one that presents nothing more than an academic or abstract issue. 10 Two complementary, though somewhat different limitations, are implicated in the state-law concept of judicial restraint. The first of these limits the business of courts to questions presented in an adversary context and in a form historically viewed as fit for resolution through the judicial process, and the second defines the role assigned to the judiciary in a tripartite allocation of power to assure that courts will not invade areas committed to the other branches of government. 11 Justiciability is therefore the term of art employed to give expression to this dual limitation placed upon the courts’ powers of judicature. 12 The barriers of justiciability prevent judges from roving outside the judicial role and giving voice to abstract grievances. Courts are not roving commissions assigned to pass judgment on the validity of the State’s laws. Constitutional judgments are justified only out of the strict necessity generated in particular cases in which rights between the litigants brought before the court must be adjudicated. 13 *61 Mere disagreement over the constitutional principles that chart the boundaries of departmental powers is not enough to supply the critical element of justiciability. 14 Much more is required for this claim by the governor to secure declaratory relief. 15 Nothing will suffice short of real action that (a) makes a clash of antagonistic forces imminent and (b) threatens to impede or disrupt the operations of vital service-rendering organs of the government. 16

By resisting an invitation that would draw the judiciary into an inter-branch dispute over policymaking and by re-asserting its detachment from a purely non-justiciable arena of marketplace combat for allocation of power to govern, the court today remains true to its constitutionally mandated mission of political neutrality.

. My view remains unchanged by one dissenter’s reference to the governor's veto of HB 2982. This postfiling event cannot be treated as a legal impediment to today's disposition. The lawsuit at hand presses for a declaration of four statutes' invalidity. No legal relief is sought by anyone from the governor's veto of HB 2982. The legislature has neither filed a counterclaim nor elsewhere sought relief from the legal consequences of that veto. The HB 2982 controversy cannot be raised sua sponte. The teachings of State ex rel. York v. Turpen, Okl., 681 P.2d 763, 768 (1984), will not support a plea for assumption of jurisdiction here. In York we pronounced an Attorney General’s opinion not to be a constitutional barrier to legislative freedom of action. The justiciability requirement was viewed as met because there the AG's opinion affected a large sum of tax revenue and the potential actuarial stability of the police and firefighters' pension system. No similar crisis confronts the antagonists here. Granting relief based on the postfil-ing event — the HB 2982 veto — would be indeed beyond the issues tendered for our resolution in this case and hence coram non judice. Goldman v. Goldman, Okl., 883 P.2d 164, 166 (1994); Estate of Flowers v. Clinkingbeard, Okl., 848 P.2d 1146, 1155 (1993).

. " * * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. * * * ” (Emphasis supplied.) Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 , 71 S.Ct. 624, 652 , 95 L.Ed. 817 (1951) (Douglas, J., concurring).

. Chaos, caprice and ad hoc pronouncements would inevitably follow the slightest departure from orderly procedure. Rodgers v. Higgins, Okl., 871 P.2d 398, 414 (1993); Snyder v. Smith Welding & Fabrication, Okl., 746 P.2d 168, 171 (1986); Pryse Monument Co. v. District Court of Kay County, Okl., 595 P.2d 435, 438 (1979). See also Handy v. City of Lawton, Okl., 835 P.2d 870, 880 (1992) (Opala, C.J., dissenting in part).

. While the U.S. Constitution does not explicitly mandate a tripartite division of government (see I.N.S. v. Chadha, 462 U.S. 919, 962-963 , 103 S.Ct. 2764, 2790 , 77 L.Ed.2d 317 (1983) (Powell, J., concurring)), our fundamental law, Art. 4, § 1, Okl. Const., expressly and inflexibly commands that the functions of government be divided into three departments. Sterling Refining Co. v. Walker, 165 Okl. 45 , 25 P.2d 312, 320 (1933). The terms of Art. 4, § 1, Okl. Const., 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.)

. Our fundamental law explicitly prohibits a judge from exercising functions incompatible with (or not germane to) the Bench's constitutionally articulated mission and with the mandated posture of detachment and neutrality. Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 547 (1980); Sterling, supra note 4 at 320. See also Galloway v. Truesdell, 83 Nev. 13 , 422 P.2d 237 (1967); Opinion of the Justices, 365 Mass. 639 , 309 N.E.2d 476, 480 (1974); Case of Supervisors of Election, 114 Mass. 247, 249, 251 (1873).

. See Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271, 278 (1982) (the formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate).

. Oklahoma Industries Authority v. Barnes, Okl., 769 P.2d 115, 119 (1988).

. Standing is an integral part of the mechanism for invoHng the federal judiciary's power. Toxic Waste Impact Group, Inc. v. Leavitt, Okl., 890 P.2d 906, 914 (1994) (Opala, J., concurring). In the federal legal system standing is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. Id. at 914 . The U.S. Constitution, Art. III, has long been held to require that a "case” or “controversy" is essential to invoke federal judicial jurisdiction and that a person’s competence to bring an action is a core component of standing in a case-or-controversy inquiry. Id. at 914 ; see C.A. Wright, Law Of Federal Courts § 13, at 59-74 (4th ed. 1983). See also Part I of Lujan v. Defenders of Wildlife, 504 U.S. 555, 558-59 , 112 S.Ct. 2130, 2135 , 119 L.Ed.2d 351 (1994).

. To be appropriate for judicial inquiry, a controversy must be justiciable. Included within the rubric of justiciability is a controversy which (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests, and (c) is real and substantial so as to be capable of a decision granting or denying specific relief. Hendrick v. Walters, Okl., 865 P.2d 1232, 1238 (1993); Application of State ex rel. Dept. of Transp., Okl., 646 P.2d 605, 609 (1982); Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-242 , 57 S.Ct. 461, 464-465 , 81 L.Ed. 617 (1937); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324-325 , 56 S.Ct. 466, 472-473 , 80 L.Ed. 688 (1936); Hatfield v. King, 184 U.S. 162, 165-166, 22 S.Ct. 477, 478 , 46 L.Ed. 481 (1902). For a discussion of the justici-ability doctrine in the federal judicial system, see Wright, Miller & Cooper, 13 Fed.Prac. & Proc.: Juris.2d § 3529 (1984).

. Hughey v. Grand River Dam Authority, Okl., 897 P.2d 1138, 1143 (1995); Northeast Okl. Elec. Cooperative v. Corporation Com’n, Okl., 808 P.2d 680, 683 (1991); Westinghouse Elec. v. Grand River Dam Auth., Okl., 720 P.2d 713, 718 (1986); Traders Compress Co. v. Board of Review, Okl. Employment Security Commission, 203 Okla. 564 , 224 P.2d 268 (1950). See also Application of Goodwin, Okl., 597 P.2d 762 , 765 n. 8 (1979).

. Wright, Miller & Cooper, supra note 9, § 3529 at 281-282, § 3531.2 at 391. In § 3531.2 at 391, the authors note that "[i]t is important to define by these means the role assigned to the judiciary in a tripartite allocation of power, lest the courts interfere unwisely with other branches of government and in the end diminish their own powers.” (Emphasis added.)

. Flast v. Cohen, 392 U.S. 83, 95 , 88 S.Ct. 1942, 1950 , 20 L.Ed.2d 947 (1968); Wright, Miller & Cooper, supra note 9, § 3529 at 281.

. See Broadrick v. Oklahoma, 413 U.S. 601, 610-611 , 93 S.Ct. 2908, 2915 , 37 L.Ed.2d 830 (1973); In re Snyder, 472 U.S. 634, 642-643 , 105 S.Ct. 2874, 2880 , 86 L.Ed.2d 504 (1985); Brock- *61 ett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502 , 105 S.Ct. 2794, 2801 , 86 L.Ed.2d 394 (1985); Chadha, supra note 4 , 462 U.S. at 937 , 103 S.Ct. at 2776 ; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

. "Justiciability” is defined in Ethics Commission v. Cullison, Okl., 850 P.2d 1069 , 1083 n. 19 (1993) (Opala, J., concurring in result) as follows:

“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.” (Emphasis in original).

See also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-241 , 57 S.Ct. 461, 463-464 , 81 L.Ed. 617 (1937); Wright, Miller & Cooper, supra note 9, § 3529 at 282-283 n. 14.

. Cullison, supra note 14 at 1080 n. 2 (Opala, J., concurring in result) (declaratory relief is available under the rubric of original jurisdiction).

Claims for declaratory judgment are not a new cause of action but a statutorily introduced remedial form, largely unknown to the unwritten Anglo-American tradition, for adjudicating rights cognizable at law and in equity, which while not then "actionable", stricto sensu, may nonetheless be tendered in the context of a justiciable controversy before actual harm had occurred. When so analyzed, the governor’s suit for declaratory relief does not ask that we fashion a new cause of action. Aetna, supra note 14 , 300 U.S. at 240-241 , 57 S.Ct. at 463-464 ; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672 , 70 S.Ct. 876, 879 , 94 L.Ed. 1194 (1950); Steffel v. Thompson, 415 U.S. 452, 478 , 94 S.Ct. 1209, 1225 , 39 L.Ed.2d 505 (1974) (Rehnquist, J., concurring); Walter H. Anderson, 1 Actions for Declaratory Judgments §§ 1, 2 (at 1-11), 4 (at 20-23), § 190 (at 382-383) (2d ed. 1951).

.Aetna, supra note 14, 300 U.S. at 239-241 , 57 S.Ct. at 463-464 ; Flast, supra note 12 , 392 U.S. at 95 , 88 S.Ct. at 1950 ; Cullison, supra note 14 at 1083 n. 19 (Opala, J., concurring in result); Wright, Miller & Cooper, supra note 9, § 3529 at 281-283.