The Oklahoma Bar Journal February 2023

“advisory opinion” – can be beneficial to the public and the rule of law. First, the Oklahoma Supreme Court has used the publici juris doctrine as a basis to exercise its original jurisdiction in a wider variety of cases over the years. The court has intervened in cases involving issues as mundane as the enforceability of a lease when the result could have serious public implications, like requiring the “relocation of the health department.” 33 It has ruled on purely legal issues facing public entities, even without a strong showing of emergency, but where timely resolution would allow state actors and the public to rely on the ruling and further the public good. 34 It has addressed the constitutionality of an act, even where multiple similar challenges were then pending in district court, when a single, timely resolution of the issue would promote judicial efficiency. 35 It has resolved challenges to the eligibility of public office holders, even where a district court could presumably have done the same thing, where a quick decision by the high court could further the public interest. 36 In short, the court appears to have broadened its view of “ publici juris ” in recent decades, intervening in cases when a quick resolution by the court (and not a single elected district judge) would promote the public good. Further, the court has not only used the publici juris doctrine to determine when it should exercise its original jurisdiction, it has also used the doctrine to loosen the strictures on how it does so. Accordingly, while the court has traditionally limited its exercise of original jurisdiction to cases where the specific elements of a writ of mandamus , prohibition or other established remedial writ

[I]t is important that the dockets of this court, if it is reasonably practicable, be not congested, in order that litigants appealing their cases here may have expeditious hearings and determinations. This is not reasonably possible if this tribunal is to be transformed into a trial court. … In the case at bar the petitioning party is a foreign insurance corporation, seeking to do business in this state. Its object is of a private nature, to engage in business for gain and profit, and has none of the elements or features of publici juris . There is no good and sufficient reason shown why said action was not instituted in the proper district court of this state having jurisdiction thereof. 30 Supreme Court, like the courts in other states, continued to treat the publici juris doctrine as a doctrine of strict limitation. 31 Only in very rare circumstances did the court assume original jurisdiction on publici juris grounds. 32 For several decades following Homesteaders , the Oklahoma In more recent decades, however, the Oklahoma Supreme Court has shifted somewhat in its application of the publici juris doctrine. While it was originally used primarily as a mechanism for the court to cabin its jurisdiction and limit the issuance of advisory opinions, the modern court has viewed publici juris as not just a doctrine of limitation but also as one of expansion in certain circumstances. And in doing so, the court has shown that sometimes its early judicial intervention in a dispute – even if theoretically only an MODERN APPLICATION OF THE PUBLICI JURIS DOCTRINE

be) used almost exclusively as a tool for strictly limiting the court’s exercise of its advisory jurisdiction. Unlike Colorado and South Dakota, Oklahoma does not have an express advisory opinion procedure. Because Oklahoma’s Article 7, Section 4 is quite similar to the independent original jurisdiction provisions in the Colorado and South Dakota constitutions, however, in early cases interpreting its scope, the Oklahoma Supreme Court naturally looked to the opinions of the courts in these other states – and imported some of their concerns about advisory opinions in the process. 28 The Oklahoma Supreme Court first adopted the publici juris doctrine in 1909 in Homesteaders v. McCombs , 1909 OK 202. There, an insurance company filed an application for original jurisdiction, asking the court to direct the insurance commissioner to allow the company to do business in Oklahoma. Although such a case would ordinarily be brought in the district court, the company urged the Supreme Court to exercise its concurrent jurisdiction under Article 7, Section 4 to save time and expense. After surveying the decisions of Colorado and other courts, the court concluded it should exercise its original jurisdiction only when 1) the exigencies of the circumstances mean ordinary district court remedies would be inadequate or 2) the case involves urgent “questions publici juris ” – questions where “the interest of the state at large is directly involved, where its sovereignty is violated, or the liberty of its citizens menaced, where the usurpation or the illegal use of its prerogatives or franchises is the principal, and not a collateral, question.” 29 And it found that assumption of original jurisdiction was inappropriate in that case, noting:

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THE OKLAHOMA BAR JOURNAL