The Oklahoma Bar Journal February 2023

much like Oklahoma’s Article 7, Section 4, they also contained express “advisory opinion” provisions, whereby the Supreme Court was expressly empowered to offer opinions “upon important questions of law” on “solemn occasions” – with or without a traditional case and controversy. 24 25 The courts in those states were thus rightly concerned about an explosion of requests

for advisory opinions, which could congest the docket and produce ill-considered decisions based on insufficiently developed facts or law. 26 Accordingly, they developed a robust publici juris doctrine, whereby the Supreme Court would agree to exercise its express advisory authority only in matters of “exceptional public importance.” 27 In those states, the doctrine was (and continues to

the public interest” and there is “some urgency or pressing need for an early determination of the matter.” 18 The court’s original jurisdiction “is intended primarily as a ‘stand by’ service,” not a first resort, and it will be exercised “only when, from the exigencies of the case, great injury will be done by [a] refusal so to do.” 19 Even where the matter at hand is unquestionably important to the public, then, without a showing of “urgency or immediacy,” the court will not intervene. 20 The Supreme Court has also made clear that while it has the authority to assume original jurisdiction to address issues that are publici juris , it will elect to do so only “sparingly.” 21 Indeed, in her 1996 dissent in Keating , Justice Kauger noted, “In the last 50 years[,] we have assumed original jurisdiction on the basis of publici juris only 44 times – less than once a year.” 22 That rate has remained about the same since. In the 26 years between 1996 (when Keating was decided) and 2022 (when this article was published), the court has assumed original jurisdiction on the basis of publici juris only 20 times – again averaging less than once a year. 23 HISTORY OF THE PUBLICI JURIS DOCTRINE Although many states have vested their highest courts with discretionary jurisdiction, Oklahoma is one of only a handful with a well-developed, modern “ publici juris ” doctrine. But Oklahoma did not invent the concept. Our publici juris doctrine was initially borrowed from early publici juris doctrines in Colorado, South Dakota and a few other states. These states’ constitutions, however, differed from ours in one important respect: In addition to original jurisdiction provisions

14 | FEBRUARY 2023

THE OKLAHOMA BAR JOURNAL