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I. INTRODUCTION
II. FACTUAL BACKGROUND
The Tulsa 9.12 Project submits this brief in opposition to Petitioners' brief and
to support the Defendants' arguments. This case raises important questions under
the Oklahoma State Constitution regarding the role of the Oklahoma Legislature as it
relates to the Oklahoma State School Board in the development, design and
implementation of our state's education standards.
The Tulsa 9.12 Project seeks to provide this Court with an additional
perspective on these issues as well as provide background information regarding the
passage of HB 3399 and how it relates to SB 2033 (2010).
The Tulsa 9.12 Project has long been committed to informing the citizens of
the state of Oklahoma about good practical education standards and techniques as
well as working with legislators in the development of Oklahoma's education
standards. It has spent several years attempting to prevent the Oklahoma Academic
Standards ("OAS") (commonly referred to as "Common Core") from being
implemented in the state of Oklahoma, and worked with the Legislature in securing
the passage of HB 3399.
In 2010, the Oklahoma Legislature passed SB 2033. SB 2033 amended
OKLA. STAT. tit 70 11-103.6a to read as follows:
B. By August 1, 2010, the State Board of Education shall adopt
revisions to the subject matter curriculum adopted by the State Board
for English Language Arts and Mathematics as is necessary to align
the curriculum with the K-12 Common Core State Standards
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developed by the Common Core State Standards Initiative, an effort
coordinated by the National Governors Association Center for Best
Practices and the Council of Chief State School Officers. The revised
curriculum shall reflect the K-12 Common Core State Standards in
their entirety and may include additional standards as long as the
amount of additional standards is not more than fifteen percent (15%)
of the K-12 Common Core State Standards.
Essentially, the Legislature directed the Oklahoma State Board of Education
to adopt the Oklahoma Academic Standards ("OAS") (commonly referred to as
"Common Core"). At this time, the Legislature asserted its authority as superior to
the Board's in developing education standards. The Legislature forced the Board to
adopt the Common Core State Standards, and no objection was raised by the
Oklahoma State Board of Education.
The Common Core standards were not to be mandatory for school districts
until the 2014-15 school year. During the past year, as many school districts began
to implement Common Core it became apparent that the people of the State of
Oklahoma did not want those standards, but wanted education standards which are
developed in Oklahoma.
To remedy the situation, the Legislature passed HB 3399. HB 3399, further
amended OKLA. STAT. tit 70 11-103.6a, removing the provisions for Common Core
and directing the Board to develop new education standards to be presented to the
legislature on or by August 1, 2016. Additionally, schools were to either continue
using or revert back to the education standards used prior to the passage of SB
2033.
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In order to prevent the issues with the education standards from reoccurring;
the Legislature included a provision in HB 3399, 4, which directs the Board to
submit the proposed education standards to the Legislature for approval before
implementation. It is this provision that Petitioners find abhorrent and have brought
this suit before the Court challenging the constitutionality of HB 3399.
III.
J urisdiction is improper and this matter should be dismissed for the following
reason:
A. The Issues Tendered by the Petitioners are not Ripe for Review.
B. The Petitioners do not have the Proper Standing to bring this Matter before
this Court.
A claim is "ripe" when the facts of the case have matured into an existing
substantial controversy warranting judicial intervention. In this matter, the facts have
not matured; therefore are not ripe for judicial intervention. The factors to be
considered in any ripeness analysis are the fitness of the issues for judicial decision
and the hardship to the parties of withholding court consideration.
, 1987 OK 39, 8, 737 P.2d 565, 568.
The ripeness doctrine is a part of judicial policy militating against the decision
of abstract or hypothetical questions. The conclusion that an issue is not ripe for
ARGUMENT
PROPOSITION I: JURISDICTION IS IMPROPER AND THIS MATTER SHOULD
BE DISMISSED.
A. The Issues Tendered by the Peti tioners are not Ripe for Review.
H & L Operating
Co. v. Marlin Oil Corp.

adjudication emphasizes a prospective examination of the controversy indicating
that future events may affect its structure in ways that determine its present
justifiability. Subsequent events may sharpen the controversy or remove the need
for decision of at least some aspects of the matter.
1991 OK 1, 7, 805 P.2d 650, 652 653.
Petitioner case hinges on abstract and hypothetical circumstances relating
to the Oklahoma Legislature reviewing education standards which have not been
developed and are not due to be resented until 2016. Petitioners mistakenly argue
that the constitutionality of HB 3399 needs urgent resolution because the result will
determine the pace, content, sequence, and manner of instruction and assessment
in public schools statewide beginning this next August. This is incorrect and
extremely misleading. According to HB 3399 3
3. Until the statewide student assessments for English Language Arts
and Mathematics are implemented as provided for in paragraph 1 of
subsection C of this section, he State Board of education shall
implement the subject matter standards for English Language Arts and
Mathematics which were in place prior to the revision adopted by the
Board in J une 2010. (emphasis added)
The education standards to be implemented this coming August are the same
ones that have been used and approved by the Board of Education prior to the
passage of SB 2033 (2010). For many of the schools in the state of Oklahoma,
these standards were the ones used for the 2013 14 school year and would require
no change from the individual school districts.
The basic rationale of the ripeness doctrine is twofold: 1) to prevent the
courts, through avoidance of premature adjucation, from entangling themselves in
French Petroleum Corp. v.
Oklahoma Corp. Com'n
5
abstract disagreements over administrative policies; and 2) to protect agencies from
judicial interference until their administrative decisions have been formalized and
their effects felt in a concrete way by the parties. , 387
U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967);
, 1980 OK 116, 14, 616 P.2d 1143, 1148.
Here the issues complained of by the Petitioners regard provisions which are
not possibly taking effect until 2016. According to HB 3399, the State Board of
Education is directed to develop new standards and those standards will be
reviewed by the Legislature in the future. In fact, Petitioners even acknowledge that
the practical result of the Legislature's actions by actual experience cannot yet be
judged in their own to the Court! ( p.10 fn. 1).
The question of ripeness often arises in cases where the harm asserted by
the petitioner has not yet occurred. Because courts are not permitted to decide
merely hypothetical questions or possibilities, the court must determine whether the
issues today are fit for judicial review. Here it is generally unknown how the
Legislature may impose the authority to review the standards two (2) years from
now, and ruling made by this court would be surely speculative. As the Petitioners
will suffer no undue hardship and it is tentative at best how the Legislature will
invoke the provisions found in HB 3399, 4; this matter is not ripe for adjudication
and should be dismissed at this time.
Abbott Labortories v. Gardner
Western Okla
Chapter v. Corporation Comm'n
Brief See Petitioners' Brief,
B. The Petitioners do not have the Proper Standing to bring this Matter
before this Court.
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"When standing of a party is brought into issue, the focus is on the party
seeking to get the complaint before the court, and not on the issues the party wishes
to have adjudicated."
, 2009 OK 90, 18, 227 P.3d 133.
To establish standing, the Petitioners must show (1) a concrete,
particularized, actual or imminent injury in fact, (2) a causal connection between the
injury and the alleged misconduct, and (3) a protected interest "within a statutorily or
constitutionally protected zone."
, 2007 OK 30, 7, 158 P.3d 1058. (citing
1982 OK 2, 10, 649 P.2d 1233, 1237.)
First, there is no concrete, particularized, actual or imminent injury in fact.
Petitioners complaint is against a provision for the State Board of Education to
develop new standards which are to be presented to the Legislature in 2016. The
education standards to be implemented this coming August are the same ones that
have been used and approved by the Board of Education.
Second, there is no misconduct by the Legislature. Pursuant to Okla. Const.
art. XIII, 1, "[t]he Legislature shall establish and maintain a system of free public
schools wherein all the children of the State may be educated." The Legislature is
authorized and obligated to maintain the public education system. In fulfilling this
obligation the Legislature has to establish standards. As demonstrated later in this
brief, HB 3399 does not infringe on the constitutional authority of the Petitioners or
State of Oklahoma ex rel. Board of Regents v. McCloskey
Brothers
Oklahoma Education Association v. State ex rel.
Oklahoma Legislature Indep. Sch. Dist. No.
9 v. Glass,
7
the Board and therefore there can be no causal connection between some
speculative injury and the actions of the Legislature fulfilling its obligations.
Finally, Petitioners do not have a protected interest within a statutorily or
constitutionally protected zone. There is nothing within our State Constitution or in
the statutes which authorizes suits out of the Legislature's development and
implementation of education standards. When a party does not rely on a particular
statute or constitutional provision authorizing suit, the question of standing depends
on whether the party has "alleged a personal stake in the outcome of the
controversy."
, 2007 OK 30, 16, 158 P.3d 1058.
While Petitioners contend that their positions as Educators and members of
the State Board of Education gives them a personal state in the outcome of the
controversy, this personal stake is no greater than any other citizen of the State of
Oklahoma.
To invoke a constitutional analysis of an act of the Legislature this Court must
be presented with a proper case in which the person complaining about the statute
has been, or is about to be "denied some right or privilege to which he was
. . . ." , 1943 OK 11, 4, 132 P.2d 950, 952.
(Emphasis added.) "In other words as a general rule the courts decide questions
only when those urging them have an interest to protect . . . ." In the present
matter, Petitioners failure to meet any one of the three criteria demonstrate a lack of
standing on their part and this matter should be dismissed.
Oklahoma Education Association v. State ex rel. Oklahoma
Legislature
lawfully
entitled City of Shawnee v. Taylor
Id.
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PROPOSITION II: PETITIONERS ARE WRONG IN ASSERTING HB 3399
VIOLATES THE OKLAHOMA STATE CONSTITUTION.
A. HB 3399 does not infringe on the Consti tutional Authority of the Board.
Generally, this Court will not address the constitutionality of a legislative act...
until presented with a proper case in which it appears the complaining person has
been or is about to be denied a right or privilege to which the person is lawfully
entitled. ,
2007 OK 30, 15, 158 P.3d 1058.
Except for the reservation of the power of initiative and referendum, the
state's policy-making power is vested exclusively in the Legislature. This court has
already held the Legislature's policy-making power specifically includes public
education. ,
2007 OK 30, 20, 158 P.3d 1058. citing Okla. Const. art. IV, 1; art. V, 55; art, XIII,
1; 1989 OK 93, 5, 776
P.2d 556, 557.
Pursuant to Okla. Const. art. XIII, 1 of the Oklahoma Constitution, "[t]he
Legislature shall establish and maintain a system of free public schools wherein all
the children of the State may be educated." The Legislature is authorized to
maintain the public education system including establishing standards. "[T]he
Legislature's acts are presumed constitutional and should be upheld unless plainly
and clearly within express prohibitions and limitations fixed by the Constitution, or
unless it exercised its authority arbitrarily and capriciously; and any doubt should be
Oklahoma Education Association v. State ex rel. Oklahoma Legislature
Oklahoma Education Association v. State ex rel. Oklahoma Legislature
In re Initiative Petition No. 332, State Question No. 598,
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resolved in favor of the power of the Legislature." , 415 P.2d
597, 600 (Okla. 1966). In HB 3399
Petitioners claim that HB 3399, 4, infringes on the constitutional authority of
the State Board of Education, because it forces the State Board of Education to
develop standards and then for those standards to be submitted to the Legislature
on or by August 1, 2016. While there is no dispute that the Board is constitutionally
empowered with "the supervision of instruction of public schools". Okla. Const. art.
XIII, 5. It is a stretch to interpret "supervision" as setting or creating the applicable
standards for instruction and assessment without the Legislature's input. In fact, a
more reasonable interpretation of the duties of the Legislature would include direct
involvement in the development of the standards.
In enforcing the law, courts look to determine within the Constitution whether
the Legislature is prohibited from legislating rather than whether the Legislature is
authorized to legislate. , 545 P.2d 753, 760-61 (Okla. 1976). "If
there is any doubt as to the Legislature's power to act in a given situation, the doubt
should be resolved in favor of validity of the action taken by the Legislature." at
761. "Restrictions and limitations upon Legislative power are to be construed strictly,
and are not to be extended to include matters not covered or implied by the
language used."
The Court should rule that HB 3399 is constitutional as In the present matter,
any question in interpreting the Legislature's actions should fall in the Legislature's
favor.
Spearman v. Williams
Wiseman v. Boren
Id.
Id.
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B. HB 3399 Does Not Violate Oklahoma's Constituti onal Separation of
Powers.
whose powers and duties shall be prescribed by law
Petitioners argue that HB 3399, 4 violates the principle of separation of
powers in the Oklahoma Constitution. This is simply not the case. As stated
previously, it has already been held the Legislature's policy-making power
specifically includes public education.
, 2007 OK 30, 20, 158 P.3d 1058. As such the
Legislature may invoke its natural power to review the standards adopted by the
State Board of Education, and has done so on numerous occasions.
The Constitution of the State of Oklahoma clearly provides that [t]he
supervision of instruction in the public schools shall be vested in a Board of
Education, . Okla. Const.
art. XIII, 5 (emphasis added). This provision undeniably vests authority over the
powers and duties of the State Board of Education in the Legislature.
This relationship is analogous of the Legislature being the parent of a child,
while the State School Board is the babysitter. The babysitter is instructed by the
parent to oversee the behavior of the child and has some discretion when it comes
to the minute details when dealing with the child, but the ultimate authority is the
parent. Here just as in times past, the Legislature is the ultimate authority when it
comes to the development of the State's Education Standards.
In addition, it is clear that the Legislature completely stripped the Board of any
power in developing the State's education standards with the passage of SB 2033
Oklahoma Education Association v. State ex
rel. Oklahoma Legislature
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(2010). In amending OKLA. STAT. tit 70 11-103.6a, the Legislature completely
directed the Board to implement standards developed outside of the state with little
to no input. In reality, HB 3399 gives the authority in developing standards back to
the Board. The Court should find that HB 3399 is constitutional in the present
matter, as it does not violate the constitutional separation of powers and actually
awards the Board with more authority than it has had in recent years.
Upon review of this matter, this court should deny Petitioners requested relief
as the issue is not ripe and they do not have the proper standing to bring this suit. In
addition, HB 3399, does not violate the Oklahoma State Constitution as it does not
infringe on the Constitutional Authority of the Board, but in fact reallocates authority
taken by SB 2033 (2010).
Respectfully Submitted,
__________________________
J ohn Paul J ordan, OBA #22613
THE J ORDAN LAW FIRM
1703 Professional Cir., Ste. 501A
Yukon, Oklahoma 73099
Telephone: 405.222.8721
Facsimile: 877.335.5521
Email:
FOR AMICUS CURIAE
CONCLUSION
TULSA 9.12 PROJECT
jp@jpjordanlaw.com
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CERTIFICATE OF MAILING TO ALL PARTIES AND COURT CLERK
I hereby certify that a true and correct copy of the
was mailed this 9th
day of J uly, 2014 to the following:
ROBERT G. MCCAMPBELL,
OBA#10390
K. MCKENZIE ANDERSON,
OBA#30471
FELLERS, SNIDER, BLANKENSHIP,
BAILEY &TIPPENS, P.C.
100 N. Broadway, Suite 1700
Oklahoma City, Oklahoma 73102
Phone: 405.232-0621
Facsimile: 405.232.9659
ATTORNEY FOR PETITIONERS
Office of the Attorney General
2300 N. Lincoln Blvd., Suite 112
Oklahoma City, OK 73105
Speaker of the House
2300 N. Lincoln Blvd., Room 401
Oklahoma City, OK 73105
President of the
Senate
2300 N. Lincoln Blvd., Room 422
Oklahoma City, OK 73105
Office of the Governor
2300 N. Lincoln Blvd., Room 212
Oklahoma City, OK 73105
Office of the Superintendent of
Public Instruction
Oklahoma State Department of
Education
Oliver Hodge Building
2500 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105
__________________________
J ohn Paul J ordan
Brief of Amici Curiae The Tulsa
9.12 Project in Opposition to Petitioners' Brief in Support of Application to Assume
Original Jurisdiction and Petition for Writ and Declaratory Relief
Pro Tempore
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