SIERRA CLUB, a California not-for-profit corporation, Oklahoma Chapter, Petitioner,
STATE OF OKLAHOMA ex rel. OKLAHOMA TAX COMMISSION, THE HONORABLE MARY FALLIN, GOVERNOR, in her official capacity, THE HONORABLE SENATOR MIKE SCHULTZ, SENATE PRESIDENT PRO TEMPORE, in his official capacity, THE HONORABLE REPRESENTATIVE CHARLES MCCALL, SPEAKER OF THE HOUSE OF REPRESENTATIVES, in his official capacity, Respondents.
APPLICATION T0 ASSUME ORIGINAL JURISDICTION AND PETITION FOR
WRITS OF PROHIBITION AND/OR MANDAMUS
A. Roth, Catherine L. Campbell, and Heather L. Hintz,
Phillips Murrah P.C., Oklahoma City, Oklahoma, for
Mansinghani, Solicitor General, Office of the Oklahoma
Attorney General, Oklahoma City, Oklahoma, for Respondents.
Petitioner, Sierra Club, requests this Court assume original
jurisdiction and petitions for a writ of prohibition or
mandamus. Petitioner alleges that House Bill 1449 is a
revenue bill that violates Article V, Section 33 of
the Oklahoma Constitution. We assume original jurisdiction
and transform the petition into a request for declaratory
relief. We find H.B. 1449 was enacted to raise revenue and is
in violation of Article V, Section 33 of the Oklahoma
The question presented is whether H.B. 1449  is a
revenue bill and thus in violation of Article V,
Section 33 of the Oklahoma Constitution. We answer in the
FACTUAL AND PROCEDURAL HISTORY
H.B. 1449 creates the Motor Fuels Tax Fee for
electric-drive and hybrid-drive vehicles, of $100 and $30 per
year respectively, and directs that the money from the fees
be deposited to the State Highway Construction and
Maintenance Fund. The House passed H.B. 1449 on May 22, 2017
and the Senate passed it on May 25, 2017. H.B. 1449 passed
with more than 51%, but less than 75%, of the vote in both
chambers. It takes effect November 1, 2017.
On August 7, 2017, Petitioner filed an application to assume
original jurisdiction, in this Court, to challenge H.B. 1449
as an unconstitutional revenue bill under Article V,
Section 33 of the Oklahoma Constitution and to request a writ
of prohibition or mandamus. Respondents argue that H.B. 1449
is not a revenue bill, therefore it does not violate
Article V, Section 33.
ASSUMPTION OF JURISDICTION
This Court has discretion to assume original jurisdiction in
a controversy where both this Court and the district courts
have concurrent jurisdiction. Edmondson v. Pearce,
2004 OK 23, ¶ 10, 91 P.3d 605, 613. This Court will
usually only assume original jurisdiction over a controversy
when the matter concerns the public interest and
there is some urgency or pressing need for an early decision.
Id. ¶ 11, 91 P.3d at 613. As H.B. 1449 involves
a question of constitutionality and will have a statewide
effect, there is little question it meets the first criteria.
Further, H.B. 1449 has an imminent effect, as it will go into
effect in less than two weeks, and ergo meets the second
criteria. Accordingly, we now assume original jurisdiction.
Petitioner requests that this Court grant a writ of
prohibition or a writ of mandamus; however, neither are the
appropriate remedy here. Nonetheless, this Court looks to
substance, not form, when a party to an original action
requests an improper writ. Stewart v. Judge of 15th
Judicial District, 1975 OK 156, ¶ 7, 542 P.2d 945.
Therefore, Petitioner's petition for writ of prohibition
or mandamus is transformed into a request for declaratory
relief concerning the constitutionality of H.B. 1449.
Campbell v. White, 1993 OK 89, ¶ 6 n.5, 856
P.2d 255, n.5.
STANDARDS OF REVIEW
In considering a statute's constitutionality, a heavy
burden is cast on those challenging the legislative enactment
to show its unconstitutionality. Fent v. Okla. Capitol
Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200,
204. Every presumption is to be indulged in favor of the
constitutionality of a statute. Id. If there are two
possible interpretations of a statute, only one of which
renders it unconstitutional, this Court must give the statute
the interpretation that renders it constitutional, unless the
constitutional infirmity is shown beyond a reasonable doubt.
Calvey v. Daxon, 2000 OK 17, ¶ 24, 997 P.2d
Article V, Section 33 of the Oklahoma Constitution requires
that revenue bills must originate in the House of
Representatives, must be passed by a three-fourths (3/4) vote
of each house of the Legislature or be submitted to a vote of
the people, are not subject to the emergency measure
provision, and may not be passed within the last five days of
session. Okla. Const. art. V, § 33 (2011). This Court
has customarily stated that (1) "'[r]evenue
laws' are those laws only whose principal object is the
raising of revenue, and not those under which revenue may
incidentally arise, " and (2) "'[r]evenue
bills' are those that levy taxes in the strict sense of
the word, and are not bills for other purposes which may
incidentally create revenue" Leveridge v. Okla. Tax
Comm'n, 1956 OK 77, ¶ 8, 294 P.2d 809, 811;
see also Naifeh v. State ex rel.Okla.Tax Comm'n,
2017 OK 63, ¶ 17. "[W]hether a measure is
'intended to raise revenue, ' must be the overarching
consideration in determining whether a measure is a
'revenue bill.'" Naifeh, 2017 OK 63,
¶ 42 (emphasis added). This is so because the answer to
whether a measure 'levies a tax in the strict sense'
is in part determined by our answer to whether the
measure's primary purpose is to raise revenue; since a
key difference between a tax and fee is the purpose behind
the assessment. Naifeh, 2017 OK 63, ¶ 43.Thus,
while we ask both whether the measure is intended to raise
revenue and if it is a levy of taxes in the strict
sense of the word, the first question is the overarching
consideration in determining whether a measure is a
revenue bill. Naifeh, 2017 OK 63, ¶
Here, H.B. 1449 did not follow the requirements of Article V,
Section 33, as it was passed in the last five days of session
with less than a three-fourths (3/4) majority vote; making it
unconstitutional if it is a revenue bill subject to
Section 33. Therefore the question to be determined is
whether H.B. 1449 is the type of measure "intended to
raise revenue" that the people mandated be enacted only
through a legislative super-majority or popular vote.
Whether H.B. 1449 is subject to the strictures of Article V,
Section 33 depends on whether its "principal object is
the raising of revenue" and whether it "lev[ies]
taxes in the strict sense of the word. Leveridge,
1956 OK 77, ¶ 8, 294 P.2d at 811.
Respondents contend that there is a growing segment of
electric-drive and hybrid-drive vehicles using the road while
paying little or no fuel tax to contribute to road
maintenance. Respondents argue that drivers of
gasoline-powered vehicles are therefore effectively
subsidizing the electric-drive and hybrid-drive vehicle
drivers' use of the State's roads. Respondents state
that the $100 electric-drive vehicle registration fee is
proportionate with the amount of taxes gasoline-vehicle
drivers generally pay. Respondents assert that the lesser
registration fee for hybrid-drive vehicles takes into account
the fact that hybrid-drive vehicles use some gasoline and
thus hybrid-drive vehicle drivers pay some gasoline taxes.
Respondents thus argue that H.B. 1449 is not a revenue
bill because (1) it imposes a "prototypical user
fee" rather than levying a tax, and (2) it does so for
the purpose of equalizing the financial burden of maintaining
the State's transportation infrastructure. We address
these arguments in reverse in order to follow the test laid
out by this Court.
First, and most important, we must determine whether the
principal object of H.B. 1449 is the raising of revenue or if
it is a bill under which revenue incidentally arises.
Naifeh, 2017 OK 63, ¶ 42. In evaluating a
measure's object or purpose, we must look to its actual
operation and effect, not simply to what the Legislature says
it is accomplishing. Torres v. Seaboard Foods, LLC,
2016 OK 20, ¶ 21, 373 P.3d 1057, 1068. The title of H.B.
1449 states it is:
[a]n Act relating to motor vehicle registrations; creating
the Motor Fuels Tax Fee; establishing fee as a
registration fee for certain types of vehicles; providing fee
amount; clarifying circumstances and manner in which fee
should be paid; making fee a prerequisite to licensing and
registration; apportioning fee revenue; defining terms;
amending 69 O.S.2011, Section 1501 which relates to the State
Highway Construction and Maintenance Fund; allowing fund to
receive certain expenditures; providing for codification; and
providing an effective date.
2017 Okla. Sess. Laws at 1292 (emphasis added). H.B. 1449
contains three sections. The first section is a codification
of new law. It states:
A. In addition to other vehicle registration fees specified
by law, for the year beginning January 1, 2018, and for each
year thereafter, there is hereby levied and there shall be
paid to the ...