Holland v. State Ex Rel. Oklahoma Health Care Authority ( 2010 )

240 P.3d 665 (2010) 2010 OK 60

Kim HOLLAND, Insurance Commissioner, Petitioner,
v.
STATE of Oklahoma, ex rel., OKLAHOMA HEALTH CARE AUTHORITY; State of Oklahoma ex rel., State Treasurer; and State of Oklahoma, ex rel., Office of State Finance, Respondents.

No. 108,519.

Supreme Court of Oklahoma.

August 24, 2010.

ORDER

¶ 1 Petitioner's application to assume original jurisdiction is granted. H.B. 2437 was enacted in violation of Okla. Const., Art. 5, Section 33, B. and D., and is not to be enforced.

¶ 2 CONCUR: EDMONDSON, C.J., TAYLOR, V.C.J., KAUGER, WATT, WINCHESTER, and COLBERT, JJ.

¶ 3 CONCUR IN PART; DISSENT IN PART: REIF, J. (by separate writing).

¶ 4 DISSENT: OPALA, J., with whom HARGRAVE, J., joins. (by separate writing).

REIF, J., concurring in part; dissenting in part.

¶ 1 I concur to assume original jurisdiction, but dissent from holding H.B. 2437 unconstitutional. In my opinion, H.B. 2437 is a constitutionally permissible fee related to the provision and regulation of health insurance in the State of Oklahoma.

OPALA, J., with whom HARGRAVE, J., joins, dissenting.

I cannot join today's rush to judgment. I would not assume original jurisdiction but relegate the petitioner to her district court remedy.

Facial earmarks do not show conclusively that the levy imposed by the enactment sought to be condemned was in fact a true tax. More is needed. A district court test of the challenged statute's constitutional validity would not be confined to its facial appearance. It might readily disclose from nonfacial proof the attacked enactment's status as a pure revenue measure subject to judicial condemnation.

Were I writing today for the court, I would decline to assume original jurisdiction without prejudice to a district court contest.