The Oklahoma Bar Journal October 2026

12. State v. Rowe , 1931 OK 328, ¶ 27, 300 P. 727, 730 (if the governor possessed the power to freely appoint and remove a judicial officer because he believed the judicial officer’s decision was erroneous, then the governor could use that appointment power “ ad infinitum until he controlled the decision.”). 13. The Legislature has extended its appointment powers to at least six executive agencies since 2019. The six agencies are the Office of Juvenile Affairs (2019 OSL 2), the Department of Corrections (2019 OSL 3), the Department of Mental Health (2019 OSL 4), the Health Care Authority (2019 OSL 9), the Department of Transportation (2019 OSL 10), and the Oklahoma Turnpike Authority (2023 OSL 295). 16. Cherokee Nation v. United States Dep’t of the Interior , 2025 OK 4, ¶ 27, 564 P.3d 58, 68. 17. Vandelay Entm’t, LLC v. Fallin , 2014 OK 109,¶ 12, 343 P.3d 1273, 1276. 18. “The Governor shall nominate and… appoint and commission all Territorial officers .” Okla. Rev. Stat. §5975 (1893) (emphasis added). Accord . Cameron v. Parker , 1894 OK 51, ¶ 7, 38 P. 14, 21 (the governor’s appointments are an outgrowth of his duty to execute the law). 19. Vandelay Entm’t, LLC , 2014 OK 109, ¶ 12, 343 P.3d at 1276. 20. Tweedy v. Oklahoma Bar Association , 1981 OK 12, ¶ 9, 624 P.2d 1049, 1054. If a legislative appointee exercised power beyond those the Legislature might delegate to one of 14. OKLA. CONST., Art. IV, §2. 15. OKLA. CONST., Art. IV, §8.

its own committees – namely initiating criminal or civil litigation on behalf of the state, adopting administrative regulations, or administering legislatively appropriated funds – then such appointment was an unconstitutional usurpation of the governor’s executive powers. 21. The special legislative committee in question was the “Legislative Bond Oversight Commission,” which was composed of six sitting state legislators appointed by the president pro tempore of the Oklahoma Senate and the speaker of the Oklahoma House of Representatives. 62 OS §695.4 (now repealed). Although composed of sitting legislators and appointed by legislative leadership, the special legislative committee was nominally within the executive branch as the state bond advisor, a subordinate executive officer under the governor, was statutorily obligated to provide staff support to the committee. 62 OS §695.6(B) (now repealed). 22. The Oklahoma Supreme Court has “exclusive original jurisdiction” to determine if proposed state bonds “will constitute valid obligations” of the State government. 20 OS §14.1. If approval by the Supreme Court, the validity of such bonds is “incontestable” under state law. Id . 23. ODOT I , 2002 OK 74, ¶¶ 9; 11, 64 P.3d at 550. 24. Id ., at ¶ 12.

Revealingly, the Legislature seems to have known it had gone too far with the special legislative committee: in 1989, the Legislature adopted an amendment to the statute which provided that the new bond oversight board (officially the Council on Bond Oversight) would be established by operation of law should the special legislative committee be deemed unconstitutional. SB 111 (1989 OSL 374) §14 (codified as 62 OS §695.11A). 29. 62 OS §695.11A. 30. ODOT II , 2003 OK 105, ¶ 13, 82 P.3d 1000, 1004. 31. Id ., at ¶ 14, 82 P.3d at 1005. 32. Id ., at ¶ 15. 33. Id ., at ¶ 16. 34. Johnston v. Conner , 1951 OK 262, ¶ 7, 205 Okla. 233, 235, 236 P.2d 987, 989. 35. 2020 OK 64, 473 P.3d 43 (Treat I). 36. Id ., at ¶ 4, 473 P.3d at 44. 37. The Supreme Court applied formalism in Treat v. Stitt , 2021 OK 3, 481 P.3d 240 (Treat II) (the governor cannot alter state law through executive action), Ritter v. State , 2022 OK 73, 520 P.3d 370 (the Legislature may not legislatively delegate to the governor the power to alter state law through executive action), and White v. Stitt , 2025 OK 68, 579 P.3d 636 (the Legislature may not delegate true judicial power to non-courts). In all such cases, there was a noticeable absence of functionalism’s multi-factor test. 38. Dank v. Benson , 2000 OK 40, 5 P.3d 1088, 1091. 39. Rowe , 1931 OK 328, ¶ 28, 300 P. at 731.

25. Id ., at ¶16, 64 P.3d at 551. 26. Id ., at ¶ 19, 64 P.3d at 552. 27. Id ., at ¶ 21, 64 P.3d at 552.

28. The bond approval process invalidated in ODOT I was enacted in 1987. HB 1444 (1987 OSL 220) §91 et seq . (codified as 62 OS §695.1 et seq .).

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