dissenting:
I must dissent from this Court's assumption of original jurisdiction and crafting a form of declaratory relief based on common law writs. Title 12 O.S.1991, § 2, provides that the common law remains in force in this state unless there be a statute enacted in derogation thereof.
Title 12 O.S.1991 § 1651, et seq., the Uniform Declaratory Judgment Act, has abrogated the common law and places in the District Court, and no other court, the authority to entertain proceedings seeking declaratory judgment. Art. VII, sec. 4. Okl. Const., grants the power of appellate review to the Supreme Court together with certain named common law writs. Declaratory Judgment is not one of the types of proceedings enumerated in sec. 4, and this Court, in entertaining the instant action, ignores a legislatively prescribed mandate, that such actions be brought originally in a court of general jurisdiction. Relief by orderly process which would be both adequate and effective is available in the district court. We should await the judgment of that court, then exercise the constitutional power of appellate review. In the cases relied upon by the majority for interceding where there was a hopeless conflict between political entities, the moving party had sought one of the common law writs enumerated in the constitution.
We do not have an actual case or controversy before us in the legal sense. No person or entity in this case has been accused of a violation of an ethics rule or legislative enactment relating to ethics in politics or political office so as to be an aggrieved party. It is true we have before us two constitutional entities, i.e., the Ethics Commission and the Legislature, but disagreement, difference of opinion, and a dispute between the two bodies does not necessarily a “lawsuit” make.
The Attorney General of Oklahoma objects to this Court’s assuming original jurisdiction and adjudicating the matter, and for good reason. 74 O.S.1991 § 18b(e) provides:
“The duties of the Attorney General as the chief law officer of the state shall be:
* * * * * *
(e) To give his [her] opinion in writing upon all questions of law submitted to him [her] by the Legislature or either branch thereof, or by any state officer, board, commission or department, provided, that the Attorney General shall not furnish opinions to any but district attorneys, the Legislature or either branch thereof, or any state official, board, commission or department, and to them only upon matters in which they are officially interested.”
I submit that the attorney general has the express authority to advise these parties by reason of § 18b(e) as to the constitutionality of HJR 1077 and the legal consequences of that House Joint Resolution. In thi§ case, we have relieved the Attorney General of this statutory duty, and become, in effect, a “Super Attorney General” by issuing an advisory opinion. This I cannot, in good conscience, condone for it flirts with a violation of the separation of powers doctrine.
I first voiced my concern regarding advisory opinions by this Court in my dissent from Oklahoma Ass’n of Mun. Attys v. State, 577 P.2d 1310 (Okl.1978). The reasoning expressed in that dissent is as valid today as it was fifteen years ago.
Today we establish imprudent precedent when we condone the summoning into Court of the President Pro Tempore of the Senate and the Speaker of the House of *1087Representatives, as representatives of those two constitutional bodies, when the constitutionality of a resolution or statute is in question.
A very fine and learned jurist from Pawnee, Oklahoma, Justice Thurman Hurst wrote in City of Shawnee v. Taylor, 191 Okl. 687, 132 P.2d 950 (1943):
“It is well settled that this court ‘will not pass upon the constitutionality of an act of the Legislature or any of its provisions until there is presented a proper case in which it is made to appear that the person complaining has been or is about to be denied some right or privilege to which he was lawfully entitled, or is about to be subjected to some of its burdens or penalties.’ {Citations Omitted} In other words as a general rule the courts decide questions only when those urging them have an interest to protect and will be injured by the enforcement, or refusal to enforce, the rule or statute involved. This court does not give advisory opinions, answer hypothetical questions or enter declaratory judgments.” (E.S.)
The constitutional jurisdictional limitations upon this Court are no different now from what they were in 1943. I would invoke the wisdom of Justice Hurst and deny the Application to Assume Original Jurisdiction and reject the use of “raw judicial power” as advocated by the majority and the concur in result opinions.