The Oklahoma Supreme Court found unconstitutional Tuesday the
legislative panel that reviews state bond issues, saying that the
Legislative Bond Oversight Commission constitutes a usurpation of
authority from the executive branch of government.
Only Chief Justice Rudolph Hargrave dissented.
The court also found that the Contingency Review Board's
participation in the approval process was unconstitutional. The
board includes the governor, House speaker and Senate president pro
tempore. Its main function is to address unexpected personnel and
expenditure needs when the Legislature is not in session.
At issue was $100 million in grant anticipation notes, also known
as Garvee bonds, part of a billion-dollar highway-construction
program approved by the Legislature in 1997. These notes are a
highway financing mechanism under which future federal highway funds
are dedicated to pay principal interest and other costs associated
with such bond issues.
The bonds were protested by Oklahoma City attorney Jerry Fent,
who said that the mechanism for issuance of the notes was
constitutionally flawed, violating the constitutional separation of
The Legislative and Executive Bond Oversight Commissions were
created legislatively in 1987.
In an opinion written by Justice Daniel Boudreau, the court
pointed out that, although state law does not require that all six
members of the legislative commission be lawmakers, all current
members are House and Senate members.
"In approving the notes, the Legislative and Executive Bond
Oversight Commissions exercised a power that cannot be classified as
purely legislative, because it is beyond the Legislature's
fundamental role to make the law," Boudreau wrote. "While the power
may be tangentially related to the Legislature's control over fiscal
matters, its dominant aspect involves carrying out legislative
policy and applying it to varying conditions. In other words, the
LBOC consists of individual legislators exercising powers that are
primarily executive or administrative."
The court majority also pointed out that the legislative
commission can halt the issuance of grant anticipation notes even if
the executive branch desires to move their approval.
"Accordingly, the LBOC is a vehicle by which the executive
department is being subjected to the coercive influence of the
legislative department," the court said.
The justices said that while the governor exercises some
authority as a member of the Contingency Review Board, the votes of
the speaker and pro tem carry equal weight, and the board's approval
must be unanimous.
"In terms of blocking the approval of the notes, the unanimity
requirement allows the governor to defeat obligations he does not
want approved," Boudreau wrote. "At the same time, the unanimity
requirement may prevent the governor from securing obligations he
would like approved, because the pro tempore or the speaker can veto
The legislative members of the Contingency Review Board do not
have absolute control over the approval process, the court said, but
they still possess a significant degree of control over an executive
"We find that the challenged arrangement, the approval of the
Contingency Review Board in the note-approval process, constitutes a
usurpation by the Legislature of the powers of the executive branch
and violates Oklahoma's constitutional separation of powers
provision," the justices said. …