financing scheme that involved “[a]t most . . . appropriation-risk or moral obligation bonds” did not create constitutional debt because there was “no legally enforceable contract between [the Legislature] and either [the Capitol Improvement Authority], the various agencies, etc. or the citizens of Oklahoma to make the anticipated appropriations necessary to retire the bonds”
How later courts described this case
- financing scheme that involved “[a]t most . . . appropriation-risk or moral obligation bonds” did not create constitutional debt because there was “no legally enforceable contract between [the Legislature] and either [the Capitol Improvement Authority], the various agencies, etc. or the citizens of Oklahoma to make the anticipated appropriations necessary to retire the bonds”
Written by the judges who cited it.
The opinion
OPALA, J.,
with whom KAUGER, J., joins only insofar as the rule of necessity is invoked in Parts III and IV, concurring in result.
¶ 1 Challenged is the validity of bonds to be issued. Some of these will be used for renovation of the State Historical Building slated for occupation by the Supreme Court. Petitioners move that all the justices disqualify because they will benefit from having new quarters. I conclude that, although subject to recusal, the court’s justices must nonetheless decline to step down by invoking the rule of necessity.
I
THE U.S. CONSTITUTION COMMANDS A NEUTRAL AND DETACHED JUDICIARY
¶ 2 Ever since Turney v. Ohio, 1 a tribunal’s impartiality has been a sine qua non element of due process within the meaning of the Fifth and Fourteenth Amendments. 2 Judges must be not only neutral but also detached. These prerequisites preserve both the reality and appearance of fairness. 3 Lack of financial interest in the outcome of a case is not the sole indication of a court’s fitness. Judges must also be free from an intellectual or emotional commitment that would indicate a predilection for or against a given resolution of the controversy at hand. 4
II
DISPASSIONATENESS IS AN INDISPENSABLE PREREQUISITE FOR A DETACHED PROCESS OF ADJUDICATION
If one’s economic interest were the sole test of a judge’s neutrality and detachment, I would accede to the court’s characterization of the justices’ interest in this case as, at best, de minimis, speculative, and remote. What the analysis in today’s order plainly disregards is that a tribunal’s dispassionateness constitutes a sine qua non component of the fundamental law’s standard of fairness in adjudication. 5 In order to administer judicial process without the taint of prejudice, 6 a *217 judge must “think dispassionately and submerge private feeling on every aspect of a case.” 7
¶4 The U.S. Constitution’s due process gauge of impartiality for a tribunal’s adjudicative fitness is encapsulated in the eloquence of the text that follows:
But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ‘Every procedure which would offer a possible temptation to the average man as a judge * ⅜ ⅜ n0£ £0 balance niCe, clear, and true ... denies the latter due process of law.’ Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally betiueen contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice. 8
¶ 5 No less rigid is the standard-of-fairness test required for judicial officers by the commands of Article 2, section 6 of the Oklahoma Constitution: 9
Every litigant is entitled to nothing less than the cold neutrality of an impartial judge. 10
It is the duty of courts to scrupulously guard our constitutional rights to a speedy trial without prejudice, and a judge should refrain from trying to exercise jurisdiction in any matter where his qualification to so do is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice. 11
¶ 6 The justices have not been challenged in this case for having a personal financial interest in the approval of the proposed bonds. The court admittedly has no known identification with, or -involvement in, the business aspects of the transaction to be approved. Rather, the interposed challenge is to each of the individual justice’s detachment. It is rested on our lack of dispassion-ateness alleged to stem from the court’s stake in its opportunity to benefit from upgraded judicial facilities.
¶ 7 I cannot deem myself dispassionate when the outcome of the case affects my cherished status symbol — the chambers in which my work is performed. Accommodations are a very important part of one’s status in society. In contemporary American culture a private bathroom in one’s executive suite of elegantly appointed offices is a symbol as well as a mark of achievement on the corporate ladder. I will not deny that this corporate culture has permeated the walls and corridors of the judiciary. In short, I cannot ignore my “stake” in the outcome of this case. To do otherwise would be to throw candor to the winds and to counteroffer a mere pretense that the lure of elegantly appointed chambers, each with a private bathroom, counts for absolutely nothing when weighed against my self-advanced profession of virginal detachment. 12
*218 ¶ 8 The prospect of a sure gain, however much misperceived as something that is one’s due, will invite a preference in any set of competing alternatives. This behavioral pattern is driven by human instinct. To proclaim its eradication by a professionally cultivated taste for (or habit of) voluntary suppression, or to rest the case against recusal on a categorical self-denial, will not bring honor to, or respect for, those who are in the service of judging. Public confidence in judicial impartiality has to be anchored in a faith-inspiring pedestal of much greater solidity. Not even the mighty pen of my colleague writing today in unqualified support for the court’s order can convincingly repeal man’s nature by his ipse dixit.
Ill
EN BANC RECUSAL OF THE JUSTICES WOULD OPEN THE DOOR FOR A GUBERNATORIAL APPOINTMENT OF SUCCESSORS
¶ 9 If a justice of the Oklahoma Supreme Court disqualifies from participation in a case, the Chief Justice assigns a state judicial officer to act in the place of the recused incumbent. 13 Upon recusal of all the justices, it is the duty of the Governor to appoint qualified members of the state bar to fill the vacant seats as “special justices”. 14
¶ 10 All of the justices have been challenged here for the same reason. Upon their recusal the Governor, though a litigant 15 in this cause, would have statutory authority to exercise his power of appointment. The persons so appointed are likely to be challenged as having received title from one who was not fit to confer it. Although the Governor does not necessarily have to be neutral, we cannot allow the judicial process to sink below its constitutional minimum by inviting the Chief Executive to, in effect, select his own court. It is a venerable common law adage that no litigant can appoint his own judges. 16
IV
THE RULE OF NECESSITY COMMANDS THAT THE JUSTICES NOT RELINQUISH THEIR POSTS
¶ 11 The “rule of necessity,” a well-established common-law principle, requires a judge to remain in a case, regardless of the judge’s interest in the outcome, if the sole power to decide the controversy resides in him. 17 Where, as here, there exists no constitutionally credible provision for post-recusal filling of vacant seats, the justices have a duty to decide the controversy notwithstanding their imputed lack of impartiality. 18
¶ 12 The rule of necessity governs this case not because there is no replacement mechanism but because the exercise of that mechanism, 19 controlled by one who is a party to the lawsuit, would be clouded by grave fundamental-law infirmity. Even if the Governor were to defeat a challenge to his appointment power, the law could not sanction his functioning in this case in a dual capacity — as both litigant and judge. 20 The appoint *219 ment power of the Chief Justice 21 would likewise be tainted as all justices are challenged as having the same interest in the litigation. We must hence remain on the bench to prevent that vacuum which would be filled by persons with a constitutionally clouded status.
V
SUMMARY
¶ 13 It is my firm view that I do have a stake in the outcome of this case and am hence subject to the petitioner’s quest for disqualification. Recusal of all justices ivould precipitate the Governor’s appointment of pro tempore justices to hear the Chief Executive’s own cause. My recusal would allow the Chief Justice to choose my replacement. He, like the Governor, would be disqualified to select my successor. By the law’s clear command of the rule of necessity, all the justices must decline to relinquish their seats and be available to decide whether the bonds should be approved or the challenge to their validity sustained.
. See Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 (1927).
. Chief Justice Taft, relying on the common law of England, recognized as a fundamental principle of due process that judicial officers be disqualified by their interest in a controversy to be decided. See id., 273 U.S. at 522-23 , 47 S.Ct. at 441 (citing Dimes v. Grand Junction Canal, [111] H.L.C. 759); see also Concrete Pipe & Prods, of Cal., Inc. v. Construction Laborers Pension Trust for So. Cal., 508 U.S. 602, 617 , 113 S.Ct. 2264, 2277 , 124 L.Ed.2d 539 (1993); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 , 106 S.Ct. 1580, 1585 , 89 L.Ed.2d 823 (1986); Ward v. Village of Monroeville, 409 U.S. 57, 61-62 , 93 S.Ct. 80, 84 , 34 L.Ed.2d 267 (1972); Bartkus v. People of Illinois, 359 U.S. 121, 128 , 79 S.Ct. 676, 680 , 3 L.Ed.2d 684 (1959).
. See Marshall v. Jerrico, Inc. 446 U.S. 238, 242 , 100 S.Ct. 1610, 1613 , 64 L.Ed.2d 182 ; see also Ward v. Village of Monroeville, 409 U.S. 57, 61-62 , 93 S.Ct. 80, 84 , 34 L.Ed.2d 267 (1972).
. See Karl Georg Wurzel, Methods of Juridical Thinking in William R. Bishin & Christopher D. Stone, Law, Language & Ethics 883-84 (University Casebook Series, 1972).
. See Wurzel, supra note 4.
. See Okla. Const. Art. 2, § 6 which provides that “justice shall be administered without ... prejudice.”
. Public Utilities Commission v. Pollak, 343 U.S. 451, 466 , 72 S.Ct. 813, 822 , 96 L.Ed. 1068 (1952) (Frankfurter, J., expressly taking no part in the decision).
. In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955) (citing Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 (1927) and Offutt v. United States, 348 U.S. 11, 14 , 75 S.Ct. 11, 13 , 99 L.Ed. 11 (1954)) (emphasis supplied and citations omitted).
. See supra note 6 for the pertinent provisions.
. State v. Sullivan, 207 Okl. 128 , 248 P.2d 239, 244 (1952).
. Id. (emphasis supplied).
. See id., where it is stated:
To force the petitioner to trial in face of the fear that the suggestions for disqualification warrant[s] would be to impose on him a condition contrary to every principle devised for the administration of justice under our jurisprudence. There may in reality be little basis for his fear but if it’s there, the renunciation of the trial judge won't efface it.
(emphasis supplied).
. See 20 O.S.1991 Ch. 1, App. 2, Rule 9(b); Okla. Const. Art. 7, §§ 6, 8(i).
. See 20 O.S.1991 Ch. 1, App. 2, Rule 9(c); 20 O.S.1991 § 1402.
. The Governor, as the Chairman of the Oklahoma Capitol Improvement Authority, is a litigant in this case.
. Nemo Potest Esse Simul Actor et Judex. No one can be at once a suitor and a judge. Broom, Max. 117. Nemo Agit in Seipsum. A man cannot be a judge and a party in the same case. Broom, Max. 216n. Nemo debet esse judex in propia causa. No man ought to be a judge in his own cause. See Black’s Law Dictionary 935, 936 (5th ed.1979). Lord Campbell recognized that "it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies [also] to a cause in which he has an interest.” Dimes v. Grand Junction Canal, 111 H.L.C. 759, 793 (1852).
. See United States v. Will, 449 U.S. 200, 213 , 101 S.Ct. 471, 480 , 66 L.Ed.2d 392 (1980); Southwestern Bell Telephone Co. v. Oklahoma Corp. Comm'n, 1994 OK 38 , ¶ 24 n. 87, 873 P.2d 1001 , 1023 n. 87 (1994) (Opala, J., dissenting).
. See Will, 449 U.S. at 214 , 101 S.Ct. at 480 .
. See supra note 14.
. See supra note 15.
. See supra note 13.