Opinion No. (1993)

THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER ASKING FOR AN OPINION ADDRESSING THE FOLLOWING QUESTION:

DO SECTIONS 9 AND 14 OF ENROLLED SENATE BILL NO 150 OF THE FIRST SESSION OF THE FORTY FOURTH OKLAHOMA LEGISLATURE, CHAPTER 316, O.S.L. 1993, VIOLATE ARTICLE V, SECTIONS 32 AND ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION?

THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUEST. THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER RESEARCH OF THE QUESTION YOU HAVE RAISED AND EXAMINATION OF PRIOR OPINIONS ISSUED BY THIS OFFICE.

IN PREPARING TO RESPOND TO YOUR REQUEST, I DISCOVERED THAT LAST YEAR, THE OFFICE OF THE ATTORNEY GENERAL EXAMINED THE SAME ISSUE YOU NOW RAISE UNDER VERY SIMILAR FACTUAL CIRCUMSTANCES. I UNDERSTAND THAT YOU NEED INFORMATION AS SOON AS POSSIBLE AND RATHER THAN SPEND TIME DUPLICATING THAT 1992 LETTER, I HAVE ATTACHED A COPY OF THAT LETTER FOR YOUR CONVENIENCE. IT SETS FORTH VERY WELL THE APPLICABLE LAW AND ANSWERS THE QUESTION AS THOROUGHLY AS IT CAN BE ANSWERED IN A LEGAL OPINION.

AS WAS THE CASE LAST YEAR, THE ANSWER TO YOUR INQUIRY REQUIRES FACTUAL DETERMINATIONS WHICH LIE OUTSIDE THE SCOPE OF A LEGAL.

AS WAS THE CASE LAST YEAR, THE ANSWER TO YOUR INQUIRY REQUIRES FACTUAL DETERMINATIONS WHICH LIE OUTSIDE THE SCOPE OF A LEGAL OPINION. AS DESCRIBED IN THE 1992 LETTER, WHETHER A STATUTE WHICH USES A POPULATION CLASSIFICATION IS CONSTITUTIONAL, PURSUANT TO ARTICLE V, SECTIONS 32 AND ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION, DEPENDS ON WHETHER IT IS A GENERAL LAW OR A SPECIAL LAW. THIS DETERMINATION REQUIRES THE APPLICATION OF A TWO-TRIERED ANALYSIS. FIRST, A COURT MUST DETERMINE WHETHER THE POPULATION CLASSIFICATION IS CLOSED OR OPEN (PROSPECTIVE) IN NATURE. SEE IN RE: BUCHER, 20 P.2D 150 (OKLA. 1933); A.G. OPINION 83-132 (A COPY IS ATTACHED.) SECOND, A COURT MUST MAKE A FACT-BASED DETERMINATION ABOUT THE REASON FOR THE POPULATION CLASSIFICATION, USING A RATIONAL BASIS TEST. BOTH THE ATTACHED LETTER AND THE ATTACHED ATTORNEY GENERAL OPINION NO. 83-132 ILLUSTRATE IN DETAIL THE TWO-TIER ANALYSIS THAT A COURT WOULD EMPLOY.

BASED ON THESE AUTHORITIES, THE DETERMINATION OF WHETHER THE PROVISIONS YOU RAISE VIOLATE CONSTITUTIONAL SPECIAL LAW PROHIBITIONS REQUIRES FIRST DECIDING WHETHER THE POPULATION CLASSIFICATIONS ARE OPEN OR CLOSED AND THEN REQUIRES APPLICATION OF THE REASONABLE BASIS TEST. CONSEQUENTLY, A COURT WOULD HAVE TO RECEIVE AND EVALUATE EVIDENCE BEFORE IT COULD RENDER AN OPINION ON THE CONSTITUTIONAL QUESTIONS YOU RAISE.

UNFORTUNATELY, THE ATTORNEY GENERAL'S OFFICE IS NOT EQUIPPED OR ABLE TO ENTER THE COURT'S FACT FINDING REALM. AS A RESULT, THE BEST WE CAN DO IS TO PROVIDE FOR YOU THE RELEVANT LAW AND DESCRIBE HOW IT WOULD BE APPLIED BY A COURT PURSUANT TO ARTICLE V, SECTION 32 AND ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION.

(BRITA HAUGLAND CANTRELL)