When Gov. Fallin signed HB 2032 into law this past legislative session, Oklahoma Attorney Jerry Fent immediately promised that he would challenge the constitutionality of the law. In early June, Mr. Fent made good on his word and filed a Writ of Mandamus with the Oklahoma Supreme Court. He is petitioning the Court for declaratory and injunctive relief to block HB 2032.
Fent presents two distinct arguments against HB 2032. The first is that HB2032 violates Article V Sec. 57 of the Oklahoma Constitution which states:
Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in Its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes….;
Secondly, he argues that the bill failed to secure the three-fourths support in both legislative chambers that is required of revenue bills.
The Constitution’s single-subject rule prevents legislators from participating in log rolling, “the legislative process of embracing in one bill several distinct matters none of which perhaps could singly obtain the assent of the legislature.” HB 2032 lowers the top income tax rate from 5.25 to 5.0 percent starting in 2015 and will lower the rate again to 4.85 percent in 2016, or later, whenever revenue increases by more than the cost of reduction. At the same time, the bill also earmarks a total of $120 million in income tax revenues for renovations to the capitol building over two years.
Fent is not a stranger to challenging Oklahoma legislative actions he believes violate the single-subject rule. In Fent v. State ex rel. Oklahoma Capitol Improvement Authority, he challenged Senate Bill 1374 which “authorized the Oklahoma Capitol Improvement Authority (OCIA) to issue obligations to finance projects for the Native American Cultural and Educational Authority, the Oklahoma Conservation Commission, and the River Parks Authority.” The Oklahoma Supreme Court found the legislation to be log rolling because it “involve[d] three separate bond issues and three separate entities with three separate purposes.”
In Fent, the Court outlined the germaneness test to determine if legislation addresses multiple subjects:
[T]he issue is not how similar or “related” any two provisions in a proposed law are, or whether one can articulate some rational connection between the provisions of a proposed law, but whether it appears that either the proposal is misleading or provisions in the proposal are so unrelated that many of those voting on the law would be faced with an unpalatable all-or nothing choice.
The Oklahoma Supreme Court has addressed the issue of legislative log rolling several times over the last decade. Its opinion in Nova Health Systems v. Edmondson listed some of the types of legislation that had been found to be unconstitutional in the past: “House Bill 1743 (space in the capitol building), Senate Bill 1708 (uniform laws), House Bill 1105 (accounting of funds), Initiative Petition 382 (eminent domain), House Bill 1570 (releasing of funds), Senate Bills 142 and 725 (cultural entities), and Senate Bill 1374 (water reservoirs and cultural entities).” The Court in Nova Health Systems also expressed its displeasure with continuing to address the legislature’s participation in log rolling stating:
We are growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution. It is a waste of time for the Legislature and the Court, and a waste of the taxpayer’s money.
Most recently, the Court struck down Comprehensive Lawsuit Reform Act of 2009 because it violated the single-subject rule.
Proponents of HB 2032 argue the single-subject rule does not extend to appropriation measures. Oklahoma City University School of Law Professor Andrew Spriopoulos wrote that the law will pass constitutional muster because “[e]very provision of the bill deals with the structure and management, including the apportionment of revenues and rate, of the state income tax.” Alex Weintz, a spokesman for Gov. Fallin, defended HB 2032 saying:
It is common practice when crafting a bill affecting taxes and revenue to include provisions concerning revenue allocation and reapportionment…[i]t is the opinion of the governor and her legal counsel that the law is constitutional and similar to many other laws affecting revenue.
The Court has typically rejected legislation found to be broad and expansive and upheld laws found to be concerned unequivocally with one subject. In Edmondson v. Pearce the Court stated that Oklahoma’s anti-cockfighting Act was constitutional and didn’t violate the single-subject rule. The Court stated that, “although the Act itself [was] somewhat detailed, all of its provisions [were] germane to its central purpose, i.e., prohibiting cockfighting and related conduct associated with this type of animal fighting.”
Fent also argues that HB 2032 violates Article V. Section 33 of the Oklahoma Constitution which states that all revenue bills not voted on by the people must pass by a 3/4 vote of both houses of the legislature. In a landmark 1950s case, Leveridge v. State of Oklahoma, the Oklahoma Supreme Court defined a revenue bill:
“Revenue Bills” are those laws whose principal object is the raising of revenue and which levy taxes in the strict sense of the word, and said phrase does not cover laws under which revenue may incidentally arise.
The question for the Court in this case will be whether a bill that lowers taxes falls under the definition of a ‘revenue bill’.
Did lawmakers participate in log rolling and violate the single-subject rule? Is HB 2032 a revenue bill? Only the Oklahoma Supreme Court knows for sure. The bill is set to take effect on July 1st; the Court has scheduled an oral presentation on July 9th to address Fent’s lawsuit.