Johnson v. Walters

OPALA, Chief Justice,

with whom HARGRAVE, Justice, joins, concurring in part and dissenting in part.

This case is not about constitutional testing of the provisions in HB 1743 and HB 1271 but about the outer reach of the executive veto1 over the numerous sections in *709these two bills.2 The proceeding came to us before the acts became law.3 The legislative leaders who brought it seek our declaration of how much in the affected legislation has survived the Governor’s veto to become effective as law.

The court pronounces today that the Governor must declare a legislative act void whenever it contains an improper combination of subjects in violation of Art. 5 §§ 56 and 57, Okl.Const.4 The opinion relieves the Governor of the obligation to accept as valid all legislative enactments presented for his approval.5 Giving prospective effect to its opinion, the court holds that the efficacy of the two bills must be measured by the standards announced in State ex rel. Wiseman v. Oklahoma Board of Corrections.6 Wiseman teaches that the Governor’s constitutional veto power must be exercised in conformity to the provisions of Art. 6 §§ 11 and 12, Okl. Const.7

*710I concur (a) in the ultimate disposition made by the court of HB 1743 and HB 12718 and (b) in that part of the opinion which holds the Governor may not exercise line-item veto over any part of general legislation presented to him in one bill, whether the act contain one or multiple subjects. I must recede from that part of today’s pronouncement which (1) overrules Wise-man and (2) requires the Governor to exercise the constitutional veto power whenever he “finds” that the act presented for his approval violates the § 56’s and § 57’s prohibition (a) against combining impermissible multiple subjects within a single bill or (b) against including within one bill appropriations intermixed with purely legislative provisions.9 My own analysis counsels that the Governor’s fundamental-law privilege to veto bills, when viewed in conjunction with the provisions of §§ 56 and 57, does not require a pre-approval testing of legislation for its conformity to the constitution. No institution of government is burdened with a constitutional scrutiny of enacted statutory law except a court responding to a challenge and acting in a proper case or controversy.10 When presented with a bill the Governor need do no more than exercise or decline to exercise the veto power conferred on that office by Art. 6 §§ 11,12, supra. The Chief Executive may either (a) find the law, whether perceived infirm or not, so unacceptable as to veto it in a manner consistent with his constitutional authority or (b) approve the law and, if dubious of its constitutional validity, let the courts ultimately decide — in a proper case or controversy — whether the approved legislation may pass constitutional muster. The Governor’s §§ 11 and 12 veto power does not include a duty to give a declaratory judgment upon an act’s constitutional validity.

I

THE RULE ANNOUNCED TODAY EITHER GIVES THE GOVERNOR OVERRIDE-PROOF MEGA-VETO11 POWER OR CREATES A BLUEPRINT FOR IMPERMISSIBLE CHILLING OF OVERRIDE EFFORTS

A

A legislative bill that comes to the Governor for approval is not law but rather documented legislative action which the Governor can either transform into or prevent from becoming law. The executive approval or disapproval of enacted legislation is the last stage in the lawmaking process.12 What of a bill’s content survives the Governor’s veto and hence emerges as effective law must be measured by the outer limit of the Governor's authority conferred by the provisions of §§ 11 and 12.13

Like other officials, the Chief Executive must rely on a judicial decision14 to treat a bill as constitutionally infirm for an impermissible combination of subjects in violation of Art. 5 §§ 56 and 57.15 Neither the Governor, nor any other executive official, *711may in advance of a judicial declaration condemn any legislation for constitutional nonconformity of any nature. The terms of §§ 56 and 57, which prohibit certain multi-subject bills, are self-executing only in the sense that they are effective without statutory implementation.16 They may not be accepted as self-executing in the sense that their text authorizes nonjudicial officers to pronounce a sentence of nullity upon a bill that is perceived to contain an improper combination of several subjects.

B

Today the Governor is required to treat as void all constitutionally objectionable multi-subject legislation. This authority may be described as a new form of “mega-veto". Mega veto is one fortified by a message whose terms raise a judicially mandated constitutional cloud that makes the flaw appear irremovable and override futile17 — a form of interbranch posturing accomplished by the threat of unfavorable court review. This court should neither sanction nor inspire this practice. Constitutional blackmail is every bit as odious as log rolling,18 which the court condemns today.

Today’s judicial cure for what is perceived as an impermissible legislative game of veto-proofing cum log rolling is clearly without any textual warrant. Its antecedents cannot be found in extant constitutional jurisprudence of this State.19 Legislative enactments have never been subject to an executive declaration of nullity other than through the exercise of the Governor’s veto power in conformity to the standards of §§ 11 and 12.

II

IN PRE-ENACTMENT STAGES THE GOVERNOR HAS NO STANDING TO ASSERT A CONSTITUTIONAL INFIRMITY

Standing, the legal right of a person to challenge the conduct of another in a judi*712cial forum,20 may be raised at any level of the judicial process or by the court on its own motion.21 Standing must be predicated on interest that is “direct, immediate and substantial.”22 The concept of standing focuses on whether the party invoking the court’s jurisdiction has a legally cognizable interest in the outcome of the controversy.23 A party seeking relief must show actual or threatened injury of some kind.24 The inquiry is whether the party has in fact suffered injury to a legally protected interest within the contemplation of statutory or constitutional provisions.25

In pre-enactment stages the Governor has no standing to challenge a bill for constitutional infirmity. No one can be adversely affected by legislation until it has been applied or enforced as effective law. No showing of actual or threatened injury can be made before the bill becomes effective law. In short, only a person against whom effective law has been applied would have standing to challenge its constitutionality.

Moreover, we do not decide constitutional issues in advance of necessity. Today’s opinion offends the time-honored “prudential rule of strict necessity”26 because it allows constitutional challenges to legislation before it becomes law. Where there is no forensic scenario in the context of which challenged law is to be enforced, courts will not assess the attacked norm’s constitutional soundness in vacuo.

Ill

A

THE GOVERNOR HAS NO POWER OP JUDICIAL REVIEW

The judicial test of a bill’s nonconformity to the constitution cannot precede but must follow the bill’s conversion into effective law by the Governor’s approval. This does not occur when the Governor receives the bill. Today’s pronouncement requires the Governor to make a constitutional decision and to veto legislation perceived as an impermissible multi-subject bill. Neither the Chief Executive nor any administrative agency has the power to probe into the law for its constitutional orthodoxy.27 In our tripartite system of government fundamental-law scrutiny lies within the exclusive domain of the judiciary. Judicial probing must (a) take place in an adversary posture and (b) be triggered by one with standing to challenge infirm legislation.

If the provisions of HB 1271 and HB 1743 were to be tendered today for a test of their conformity to our fundamental law, the attempt would fail. The Governor, as well as the agency heads who are respondents here, would at this stage lack standing, either as so-called Hohfeldian or non-*713Hohfeldian plaintiffs,28 to challenge the acts on grounds of multiplicity of subjects. If, before exercising veto power, the Governor were indeed required to test legislative law for its conformity to the constitution, his authority would exceed that which is textually demonstrable by the content of Art. 6 §§ 11 and 12. Nay, the Chief Executive would be invested with responsibility for statutory nullification whose breadth the judiciary could never claim for itself. In short, no part ofHB 1271 and HB1713 can stand here under an adversary fundamental-law scrutiny. This is so because none of the parties has standing to invoke constitutional review of the acts’ contents. Only the efficacy of the veto outer reach is tendered today for our legal assessment.

B

TODAY’S PRONOUNCEMENT, WHICH IMPOSES JUDICIAL DUTIES UPON THE EXECUTIVE SERVICE, ABROGATES THE GOVERNOR’S DISCRETIONARY POWER TO APPROVE LEGISLATIVE LAW AND HENCE VIOLATES ART. 4 § 1, OKL. CONST.29

The court’s imposition of constitutional review responsibility upon the Governor and its abrogation of the Chief Executive’s discretionary power to approve or reject legislative action clearly offend the separation-of-powers doctrine enjoined on this government by Art. 4 § 1, Okl.Const.30 That section, which expressly establishes a tripartite division of government functions, is offended whenever one governmental branch is allowed to usurp powers expressly delegated to another.

Just as Art. 4 § 1 interdicts legislative imposition of nonjudicial duties on judges,31 it also forbids the Supreme Court from saddling the Governor with nonexecutive functions. If judges are indeed constitutionally protected from being burdened with nonjudicial duties, Executive Department officials must be equally shielded from both legislative and judicial imposition of nonexecutive tasks.

SUMMARY

The Governor’s power over legislation is circumscribed by the constitution. He cannot expand his veto power at the expense of either the legislature or the judiciary. When an infirm multi-subject bill is presented for his approval, he must decide whether to veto or approve it, and then let the courts decide whether the approved act may pass constitutional muster. When a bill is presented for the Governor’s approval he bears no duty to probe into its provisions for conformity to our constitution.

The court’s final product today marks the birth of an extra-constitutional mega-veto. I recede from its opinion by announcing my continued commitment to the tradi*714tional precept that fundamental-law testing is to be confined within judicial institutions, there to be processed only when a proper case or controversy is presented. If legislative enthusiasm for strict compliance with the standards of §§ 56 and 57 is not presently evident, it is primarily because this court’s extant post-statehood jurisprudence has not seen fit to direct that, upon the penalty of judicial invalidation, bills conform to the standards of those sections. This is the first case announcing mandatory compliance with all the §§56 and 57 strictures. Like Rip Van Winkle, the court suddenly awakens from a very long sleep to realize that the parameters of these two sections are critical and should be predictably enforceable in the courts. While I salute today’s effort, I cannot condone the legal framework in which it is accomplished. The job of enforcing the §§ 56 and 57 strictures should be left to the orderly process of post-enactment litigation. The Chief Executive should not be saddled with the job this court has been slow to do since the birth of our commonwealth.

. "Veto" is "[t]he refusal of assent by the executive officer whose assent is necessary to perfect a law which has been passed by the legislative body, and the message which is usually sent to *709such body by the executive, stating such refusal and the reasons therefor. A refusal by the president or a governor to sign into law a bill that has been passed by a legislature.” Black's Law Dictionary, 5th Ed. at 1403.

. We are not called upon to conduct an inquiry into the acts’ constitutionality. Our concern should be solely with the legal effect of the Chief Executive’s veto, which is the last step in the process of transforming legislative enactments into law.

. Pending our disposition of the case we suspended the effectiveness of "the non-appropriation (substantive-law)” portions of the bill by order of August 29, 1991, with Doolin, J., dissenting and Simms, J., disqualified.

. The provisions of Art. 5 § 56, Okl.Const., are:

“The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.” (Emphasis added.)

The terms of Art. 5 § 57, Okl.Const., provide:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bilb, and bilb adopting a code, digest, or revbion of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provbions of thb section, such act shall be void only as to so much of the law as may not be expressed in the title thereof." (Emphasis added.)

. Although the Governor is always free to exercise his veto powers over bills presented for his approval, whether they be infirm or valid, a legislative enactment is presumed valid until a sentence of nullity has been pronounced by a court of competent jurisdiction. That legal presumption attaches even in the judicial process of litigation. Dow Jones & Co. v. State ex rel. Tax Com’n, Okl., 787 P.2d 843, 845 (1990).

. Okl., 614 P.2d 551 (1978).

. The terms of Art. 6 § 11, Okl.Const., provide in pertinent part:

“Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with hb objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor.... If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment.” (Emphasis added.)

The terms of Art. 6 § 12, Okl.Const., are:

"Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house *710in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote.” (Emphasis added.)

. Under today’s disposition, no part of HB 1743 becomes law; and as for the provisions of HB 1271, only distinct items of appropriation not disapproved by the Governor survive as law.

. See supra note 4 for the pertinent provisions of Art. 5 §§ 56 and 57, OkI.Const. Some multi-subject bills are permitted under § 57 — "general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of stat-utes_"

. Dow Jones & Co. v. State ex rel. Tax Com'n, supra note 5 at 845.

. For a definition of "mega veto” see text at Part 1(B) infra.

. See supra note 1.

. See supra note 7 for the pertinent provisions of §§ 11 and 12.

. Dow Jones & Co. v. State ex rel. Tax Com’n, supra note 5 at 845.

. Supra note 4.

. A constitutional provision is self-executing "when it can be given effect without the aid of legislation and there is nothing to indicate that legislation is contemplated to render it operative, and when there is a manifest intention that it should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed.” Latting v. Cordell, Okl., 197 Okl. 369, 172 P.2d 397, 399 (1946).

. This is so because a Governor’s veto with a judicially instigated constitutional blast would tend equally to trump a vetoed bill as well as its override. The legislative override provisions are found in Art. 6 § 11, Okl.Const., which provides in pertinent part:

“* * * If, after such reconsideration [by the house in which the act shall have originated], two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor.... If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment.” (Emphasis added.)

. Log rolling is defined as a "legislative practice of embracing in one bill several distinct matters, none of which, perhaps could singly obtain the assent of the legislature, and then procuring its passage by a combination of the minorities in favor of each of the measures into a majority that will adopt them all. Practice of including in one statute or constitutional amendment more than one proposition, inducing voters to vote for all, notwithstanding they might not have voted for all if amendments or statutes had been submitted separately.” Black’s Law Dictionary, 5th Ed at 849.

. I can find no prior Oklahoma decisions in which this court teaches that legislation is facially void for an impermissible combination of subjects proscribed by Art. 5 § 57, Okl.Const., supra note 4; nor have I been able to identify any extant authority for the doctrine that under § 56 a bill that combines legislation with special appropriations is patently void. The text of § 57 makes only that content of a bill void which is not embraced in its title. At a maximum, an act that combines discrete subjects in violation of § 57 would only be voidable. When an act is voidable but not void, it continues in its effect until a contrary judicial ruling is made. H.J. Jeffries Truck Line v. Grisham, Okl., 397 P.2d 637, 642 (1964).

. State ex rel. Cartwright v. Okl. Tax Com’tt, Okl., 653 P.2d 1230, 1232 (1982); Matter of Adoption of Baby Boy D, Okl., 742 P.2d 1059, 1062 (1985).

. Matter of Estate of Doan, Okl., 727 P.2d 574, 576 n. 3 (1986).

. Underside v. Lathrop, Okl., 645 P.2d 514, 517 (1982); Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271, 274 n. 13 (1982); Matter of Estate of Doan, supra note 21 at 576.

. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968); Application of State ex rel. Dept. of Transp., Okl., 646 P.2d 605, 609 (1982).

. O’Shea v. Littleton, 414 U.S. 488, 493-494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

. Matter of Adoption of Baby Boy D, supra note 20 at 1062; Independent School Dist. No. 9 v. Glass, Okl., 639 P.2d 1233, 1237 (1982).

. The prudential rule of strict necessity, adhered to today by all state and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity. In re Initiative Petition No. 347 State Question No. 639, Okl., 813 P.2d 1019, 1037 (1991) (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467 n. 3 (1987); IMS. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandéis, J., concurring); see also Schwartz v. Diehl, Okl., 568 P.2d 280, 283 (1977); Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564-565 (1975).

. Dow Jones & Co. v. State ex rel. Tax Com’n, supra note 5 at 845.

. Non-Hohfeldian plaintiffs are persons whose interest tendered for judicial vindication is neither personal nor proprietary. Flast v. Cohen, supra note 23, 392 U.S. at 119 n. 5, 88 S.Ct. at 1962 n. 5 (Harlan, J., dissenting); Oklahoma City News Broadcasters Ass’n v. Nigh, Okl., 683 P.2d 72, 78 n. 2 (1984) (Opala, J., concurring in result).

. 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.”

. A tripartite division of government is not explicitly mandated by the U.S. Constitution; our fundamental law, Art. 4 § 1, Okl.Const., supra note 29, 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, 318 (1933).

.Art. 4 § 1, Okl. Const., supra note 29; see also In Re: Approval of Rules Mandated by the Dispute Resolution Act, 12 O.S.Supp.1985 §§ 1801 et seq., 57 OBJ 876 (April 8, 1986) (Opala, J., not participating), where this court approved rules and regulations for mediation services authorized by the Dispute Resolution Act. That act placed the management of mediation services in the Judicial Department; State v. Lynch, Okl., 796 P.2d 1150, 1165, 1166-1167 (1990) (Opala, V.C.J., concurring in part and dissenting in part).