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Ethics Commission and Governor, Legislature Engage in Showdown at the Supreme Court

The Journal Record Legislative Report

July 31, 2018

The Oklahoma Ethics Commission and the Governor and Legislature duked it out in the courtroom today in from of a State Supreme Court Referee. The Ethics Commission states that the Legislature unconstitutionally deprived the Ethics Commission of the appropriations it needs to be able to function as the regulator of state campaign activities, lobbyists, and most state employees. Named in the lawsuit are five individuals: Gov. Fallin, Speaker Charles McCall, President Pro Tempore Mike Schulz, OMES Director Denise Northup, and Treasurer Ken Miller.

The commission sought out the Supreme Court to take original jurisdiction in this matter, given its past willingness to do so on matters of public import. In its action, it asks the court to demand the legislature and governor to make available the funds it needs to carry out its constitutional obligations laid it in Article XXIX, which was passed as SQ 629 in 1990. The Commission states that it is given unique constitutional status given the language in Article XXIX, and in explanations from the officials who supported its passage in the campaign that cycle, including former Gov. Bellmon, then-Sen. Boren, and then-Attorney General Robert Henry who all stated that funding could be forced by court order if the agency was not properly funded.

The rise in the requested appropriation this fiscal year came from a few sources, including new metrics considered for the ability to carry out its necessary work, and the abnormally high number of candidates running for office this year. Given this, and the commission’s contention that the language in Article XXIX supersedes the State Finance Act which governs the budget-making process for the state, more money must be appropriated for the commission to fulfill its mandate as the voters wanted in 1990.

The Counsel for The House of Representatives stated that the request by the commission is out of line, given the court’s history of deference to the political branches on funding matters. It has always been held to be non-justiciable. This year, the commission’s request was over 300% higher than it had received the previous year, from $700,000 to over $2.5 million an extraordinary number given how much the state had been strapped for cash and given the competing demands for money, especially for education. More importantly, counsel said the commission’s statement it was the minimum was even more outlandish, as this had never been stated before by them. Given the political nature of the fight, and the court’s unwillingness to venture into those previously, the request for relief by the commission should be denied.

The Senate Counsel echoed much of the House’s statement, focusing on the adequacy argument. She stated that in multiple cases previously, the court had note ruled on adequacy of funding, given the usurpation of legislative and executive power that entailed. The court has insisted on a rigorous segregation of power previously, and if they ruled for the commission here, it would open the floodgates for other agencies thereafter with constitution mandates. She stated that adequacy litigation is fraught, contentious, subjective field of law, and one that should avoid normalization in this state. In response to question by the referee about what would happen if there was an appropriation of $0 for a constitutional agency, counsel stated that she did not think it is not a matter before us today, and stated it is not relevant.

Secretary of State Williamson closed out the arguments for those being sued, on spoke the Governor’s behalf. He was brief, and stated that a writ of mandamus to force the governor to call a special session would be an extraordinary expansion of power by the Court. Multiple times the court has held off venturing into that realm, and should not now.

Jan Preslar of the Ethics Commission finished proceedings by stating that Calvey v. Daxon noted a constitutional limitation could be invoked against the legislature during the budget process and override it, and the opinion of the commission is that the language Article XXIX is such a limiter. No other constitutional agencies have the rules for its budget process spelled out in the constitution, and that should be considered by the court. Even if none of the writs asked for in the case are granted, declaratory relief could still be had.

The referee, Ann Hadrava, stated there will be a decision forthcoming by the court, but no timeline for the release is planned.

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