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See You in Court?

Things can get a bit testy at the Oklahoma State Capitol, maybe more so this session when money is tight and legislators are addressing so many sensitive issues as they try to fill a half-billion-dollar budget hole.

Some lawmakers are questioning the constitutionality of certain pieces of legislation, raising the possibility of lawsuits to settle contentious issues.

That was certainly the case on Thursday, Feb. 24.

In 2007 the Oklahoma Supreme Court said it was a violation of the state’s constitution for a state board that included legislative leaders to control approval of spending certain funds, calling it “a legislative usurpation of the powers assigned to the executive branch.”

In that case, the Contingency Review Board, which includes the governor, House speaker and Senate president pro tem, had approved a $20-million expenditure from appropriations to the Oklahoma Opportunity Fund.

Rep. Joe Dorman, D-Rush Springs, argues that legislation to involve the State Equalization Board in the process for considering cost of living allowances for retired state workers could prompt another separation-of-powers lawsuit, this time about loss of legislative authority.

Chaired by the governor, the equalization board also includes several other executive-branch officials.

Under HB 2132, a retirement bill could not be considered fully funded unless the legislature funds it in an amount equal to or exceeding the annual cost to the affected system resulting from the new legislation.              If the equalization board were to determine that the bill was not funded as required, the legislation could not take effect until the board concludes that funding has been provided.

“We are clearly ceding authority away to the executive branch as far as the appropriations process on these bills,” Dorman told the House in debate.

Acknowledging that he is not an attorney, Dorman said HB 2132 amounts to giving away the legislature’s power to decide what is right or wrong in a bill.

“I can promise you somebody will sue and I am certain they will win,” Dorman said.

Handling the bill for House Speaker Kris Steele, R-Shawnee, Rep. Randy McDaniel, R-Edmond, disagreed.

“We’re the ones pulling the trigger on when a COLA can be funded,” he said.  “This bill says you have to pay for what you do.”

McDaniel said that every funding bill goes to the equalization board for consideration of its fiscal impact.

“There’s nothing unconstitutional about that,” he said.

McDaniel and other supporters of the bill argue that the state’s retirement systems are more than $16 billion unfunded, a situation that HB 2132 is aimed at addressing.

However, Rep.Danny Morgan, D-Prague,  said the measure requires that funding for retirement COLAs come out of general revenue, even if a particular pension system experiences a surplus.

McDaniel countered that if a system were ever overfunded, lawmakers would find a way to grant retirees a COLA. The problem, he said, is that unfunded benefit increases were approved decade after decade.

Rep. Dave Dank, R-Oklahoma City, said retirees can be helped through cuts in income taxes, capital gains taxes and other levies, freezing property taxes and similar measures.

“There are a lot of ways we can help them without bankrupting their pension funds,” he said.

The bill was approved, but was sent to the Senate without its emergency clause.

Later the same day in committee, Rep. Richard Morrissette, D-Oklahoma City, said lawmakers are inviting a lawsuit if they approve HB 1541, a bill that is part of Gov. Mary Fallin’s  program to streamline state government. The legislation would consolidate several executive-level state agencies.

Morrissette told the House Government Modernization Committee that the bill is out of order because it violates the Oklahoma Constitution, specifically Article V, Section 57, which requires legislation to cover a single subject.

Morrissette said the measure should be rewritten.

“I warn the members,” he said. “If you pass this bill, you may be in violation of your oath.”

Morrissette was referring to a provision in lawmakers’ oath of office which requires them to uphold the state’s constitution.

A committee substitute for the bill was approved 8-0, with Morrissette not voting.

On Monday, Feb. 28, Rep. Mike Reynolds, R-Oklahoma City, took issue with HB 1225, which would require that if an initiative petition requires funding, circulators must submit to the secretary of state and attorney general a statement outlining all funding sources to be used in the measure.

Reynolds said the requirement would affect a constitutional right of Oklahomans, and could be subject to legal challenge.

“It would just inhibit their ability to petition their government,” he said.

Rep. Pat Ownbey, R-Ardmore, said the bill is intended to address issues such as State Question 744, defeated in November, which would have required that Oklahoma’s teacher pay be raised to the regional average. He said HB 1225 would have required that the ballot issue tell voters where the money to fund it would come from, whether from general revenue, a tax increase or other source.

Dorman amended the bill to require the Office of State Finance to prepare an estimate of a proposed state question’s annual cost, to be published on the secretary of state’s Web site.

About Marie Price

Inducted into the Oklahoma Journalism Hall of Fame in 1998, award-winning journalist and attorney Marie Price has been covering the State Capitol and the law for three decades.

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