Fent v. State ex rel. Office of State Finance , 2008 Okla. LEXIS 1 ( 2008 )

WATT, J.

concurring specially.

¶ 1 I agree with the majority that H.B. 1105 makes appropriations to support several different and unrelated objects or purposes contrary to the one subject requirement in the Okla. Const., art. V, § 56. I also agree that, on this one final occasion, the effect of our ruling should be given prospective effect to avoid disruption of those state agencies who received appropriations pursuant to the bill. Nevertheless, I concur specially for the express purpose of advising the Legislature that future attempts at logrolling,¹ no matter how late in the legislative session they appear, should not be met with a similar response from this Court.

¶ 2 Utilizing the mandatory term "shall,"² art. 5, § 56 of the Okla. Constitution provides for two kinds of appropriations bills: 1) a general appropriations bill which "shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State;" and 2) all other appropriations which "shall be made by separate bills, each embracing but one subject." Here, it is unquestioned that the bill presented is not a general appropriations bill. Therefore, the Legislature was aware that its constitutionality hinged on it being a single subject bill. Nevertheless, it chose to draft a bill covering several subjects rather than to present a number of separate bills which would have withstood the single subject challenge.

¶ 3 The Legislature is well educated in the requirements of the single subject rule found in the Oklahoma Constitution, art. 5, § 56. In 1991, this Court gave prospective application to a violation of the single subject rule in Johnson v. Walters, 1991 OK 107, ¶ 31, 819 P.2d 694. Less than two years later, we did the same in Campbell v. White, 1993 OK 89, ¶ 20, 856 P.2d 255. In Campbell, the Legislature was advised that our restraint should not be tested a third time and that the Court was prepared to uphold the Constitution.

¶ 4 This is the third occasion in which this Court has found it necessary to give prospective application to a logrolling situation because the Legislature waited late enough in the session and appropriated or expended monies before the Court had the opportunity to hear and decide a challenge. Today, we again give prospective effect to our ruling to avoid needless disruption to the operation of state agencies. However, the Legislature has now had its "third strike."

¶ 5 Our consideration of practical operations of government should not be allowed to override this Court's duty to uphold the Constitution. The Legislature should stand advised that the prospective operation of this opinion should not be read as a signal that it may act late enough in its session and expend monies expeditiously enough to avoid our intervention to uphold our constitutional duties. Rather, the Legislature should stand notified that future logrolling challenges will be subject to the power of the writ and to an immediate accounting.

1 . Logrolling is the practice of assuring the passage of a law by creating a situation in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted. In re Initiative Petition No. 382, 2006 OK 45, ¶ 8, 142 P.3d 400; Edmondson v. Pearce, 2004 OK 23, ¶ 43, 91 P.3d 605, cert. denied, 543 U.S. 987, 125 S.Ct. 495, 160 L.Ed.2d 371 (2004); In re Initiative Petition No. 360, 1994 OK. 97, ¶¶ 17-18, 879 P.2d 810.

2 . Generally, the use of "shall" signifies a command. Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 7, 152 P.3d 861; Cox v. State ex rel. Oklahoma Dept. of Human Services, 2004 OK 17, ¶ 21, 87 P.3d 607; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338.