STATE EX REL FUGATE 94 v. STITT (2025)

OPINION

¶1 On December 18, 2024, Governor J. Kevin Stitt (“Governor”) issued Executive Order 2024-29 (the “Executive Order”), directing all full-time employees of state agencies to “perform their work in the office, facility, or field location assigned by their agency, and not from a remote location by February 1, 2025,”  ¹ subject to limited exceptions granted by an agency's executive. The Executive Order became effective on February 1, 2025.

¶2 State Representative Andy Fugate (“Representative Fugate”) filed a Petition for Declaratory Judgment and Injunctive Relief on February 21, 2025 in opposition to the Executive Order. Representative Fugate contended that the Governor effectively created a new law by and through the Executive Order which usurped legislative authority. Representative Fugate requested that the district court find the Executive Order null and void and grant injunctive relief to permanently bar enforcement of the Executive Order. The Governor challenged Representative Fugate's legal standing to file the petition, arguing Representative Fugate did not suffer an actual and concrete injury. Moreover, the Governor argued in the event Representative Fugate did have standing, he could not meet the elements necessary to obtain injunctive relief.

¶3 The district court found Representative Fugate failed to establish that he suffered a concrete injury sufficient to support standing.  ² Representative Fugate appealed to this Court, and we retained the matter for disposition.

STANDARD OF REVIEW

¶4 De novo review is the proper standard for reviewing the district court's grant of a motion to dismiss. Wells v. Oklahoma Roofing & Sheet Metal, L.L.C., 2019 OK 45, ¶ 7, 457 P.3d 1020, 1024. De novo review involves a plenary, independent, and non-deferential examination of the issues presented. Benedetti v. Cimarex Energy Co., 2018 OK 21, ¶ 5, 415 P.3d 43, 45. The dispositive issue presented to this Court is standing. Standing may be considered as a jurisdictional element of judicial power constitutionally vested in courts, or an issue of constitutional justiciability of jurisdictional scope. Osage Nation v. Bd. of Commissioners of Osage Cnty., 2017 OK 34, 394 P.3d 1224. Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. Wells Fargo Bank, N.A. v. Heath, 2012 OK 54, ¶ 7, 280 P.3d 328, 332.

DISCUSSION

¶5 Without standing, Representative Fugate lacks the legal right to seek relief in a judicial forum. Fent v. Contingency Rev. Bd., 2007 OK 27, ¶ 7, 163 P.3d 512, 519. “Only if standing exists must the case proceed to the merits․” Toxic Waste Impact Grp., Inc. v. Leavitt, 1994 OK 148, ¶ 9, 890 P.2d 906, 911. Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. Matter of Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, 576. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Id.

¶6 The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. Fent, 2007 OK 27, 163 P.3d 512. The party invoking a court's jurisdiction has the burden of establishing his standing to pursue the action in court. Leavitt, ¶ 8, 890 P.2d at 910. “When a member of the law-making assembly initiates legal proceedings in a representational capacity as a senator or member of the House of Representatives, that legislator can claim no elevated status in establishing standing.” Hendrick v. Walters, 1993 OK 162, ¶ 5, 865 P.2d 1232, at 1236 (emphasis in original). Rather, the legislator “must meet the same threshold criteria required of any other litigant,” as standing is “confined to those whose interest in the controversy is ‘direct, immediate and substantial,’ ” with a “personal stake in the outcome.” Id.

¶7 We have consistently held that standing to raise issues in a proceeding must be predicated on an interest that is “direct, immediate and substantial.” Wells Fargo Bank, N.A. v. Heath, 2012 OK 54, ¶ 7, 280 P.3d 328, 332. The Governor asserts Representative Fugate's alleged injury is conjectural and that he “does not stand to suffer any actual, concrete injury because the [Executive Order] does not apply to him.”  ³ Specifically, the Governor presents the Executive Order does not apply to Representative Fugate because the Executive Order applies exclusively to the full-time employees employed by the executive branch. As such, Representative Fugate cannot be injured by the Executive Order because neither he, nor his staff, are subject to the return-to-work requirement.

¶8 Conversely, Representative Fugate broadly asserts that his injury derives from the Executive Order's usurpation of legislative authority. Representative Fugate contends the Executive Order “legislates new standards for all full-time state employees and compels agencies to incur potential new costs related to in-person work,”  ⁴ which Representative Fugate argues is a legislative matter and “directly encroaches on the Legislature's exclusive authority to determine personnel policy.”  ⁵ Representative Fugate argues he possesses a “plain, direct, and adequate interest’ to protect the Legislature's prerogatives.”  ⁶ In response, the Governor posits that only presiding officers of the Legislature--not individual legislators--possess standing to bring suit to prevent usurpation of legislative authority.

¶9 We agree with the Governor's position that the Executive Order exclusively applies to Executive branch employees; therefore, Representative Fugate cannot claim the Executive Order causes him any direct harm in that regard. Nonetheless, Representative Fugate contends our state's standing jurisprudence confers standing upon legislators to defend legislative prerogatives and prevent usurpation of legislative power. Representative Fugate relies heavily on Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232, in which a senator challenged the title of office of the governor due to the governor's failure to take an oath in the form prescribed by the provisions of 51 O.S.1961, § 2. We determined the legislator had a “plain, direct and legitimate interest” and “a personal stake” in the controversy because the governor's failure to take the proper oath might render any vote cast by the senator null and void. Id. ¶ 6, 865 P.2d at 1238. Hendrick presented a unique scenario in which a member of the House of Representatives or a Senator had standing to maintain the effectiveness of his or her individual vote.  ⁷

¶10 Unlike the senator in Hendrick, Representative Fugate has not seen his votes affected by the Executive Order.  ⁸ Representative Fugate has not alleged the Executive Order directly affects any matter he is actively participating in as a member of the House of Representatives, or that the Executive Order prevents him from voting on any proposed bill. Hendrick does not support Representative Fugate's position that he possesses standing in this case.

¶11 Additionally, the parties argue extensively whether only a presiding officer of the Legislature has standing to sue on behalf of the Legislature when legislative authority has allegedly been usurped. See State ex rel. Howard v. Okla. Corp. Comm'n, 1980 OK 96, 614 P.2d 45; State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763. However, we need not address whether only presiding officers of the Legislature possess standing to sue on behalf of the Legislature because Representative Fugate's allegations do not amount to an injury in fact in this case.

¶12 Representative Fugate alleges the Executive Order inhibits a legislator from conducting legislative business and violates “statutory law”⁹ --yet fails to point to a statute the Governor allegedly violated. On the contrary, the Governor's action in issuing the Executive Order falls directly within his authority as conferred by the Oklahoma Emergency Management Act of 2003, 63 O.S. § 683.1-683.24 (the “Act”).¹⁰ The Act provides that in the event of an emergency that exceeds local capability, “the Governor may assume direct operational control over all or any part of the emergency management functions within this state.” 63 O.S. § 638.8(A). Furthermore, the Act empowers the Governor to “[m]ake, amend, and rescind the necessary orders and rules to carry out the provisions of the [Act] ․” 63 O.S. § 638.8(D)(1) (emphasis added).

¶13 Representative Fugate correctly highlights in a footnote in his Emergency Application for Temporary Restraining Order and Temporary Injunction that Executive Order 2020-20, signed by the Governor on May 30, 2020, ordered state agencies--pursuant to the Act--to implement remote work policies, promulgate emergency rules, and limit non-essential out-of-state travel pursuant to the Act.  ¹¹ The challenged Executive Order--also pursuant to the Act--rescinded remote-work capabilities granted in Executive Order 2020-20.

¶14 The Executive Order explicitly highlights that because the Federal Government determined the COVID-19 Public Health Emergency ended on May 11, 2023, “the conditions necessary for non-traditional work environments have been alleviated.”  ¹² The Executive Order did not create a new law or require a new condition of employment for Executive Department employees. As such, no additional legislation was necessary to issue the Executive Order, nor was legislative authority usurped. Consequently, Representative Fugate has suffered no injury in fact to establish standing.

CONCLUSION

¶15 To establish standing, a plaintiff must prove (1) a legally protected interest which must have been injured in fact i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. Fent, 2007 OK 27, ¶ 7, 163 P.3d 512. Representative Fugate has failed to demonstrate that he--in his official capacity--has suffered an injury in fact. Representative Fugate has not seen his votes affected by the Executive Order, nor can Representative Fugate successfully demonstrate the Executive Order usurps legislative power. Accordingly, we find Representative Fugate lacks standing. The district court's dismissal is affirmed.

MATTER PREVIOUSLY RETAINED FOR DISPOSITION; ORDER OF THE DISTRICT COURT AFFIRMED.

¶1 I write separately to explain why I concur with the Court's opinion.

¶2 Our Court has a long history of recognizing the three separate elements of a trial court's jurisdiction, jurisdiction over the person, jurisdiction over the subject--matter, and jurisdiction to render the particular judgment, and “[e]ach element of jurisdiction is dependent upon both law and fact.”  ¹ Facts relating to jurisdiction may be classified as jurisdictional and quasi-jurisdictional for certain purposes.  ² For example, in federal courts a fact relating to standing may in some circumstances be classified quasi-jurisdictional,  ³ and standing in an Oklahoma court declaratory relief proceeding includes facts relating to justiciability that focus on a plaintiff's pled interests and whether they are cognizable by a court exercising Okla. Const. Art. VII judicial power in that proceeding.  ⁴ When facts related to jurisdiction are disputed an evidentiary hearing is the usual method for resolving the dispute.  ⁵ When no party seeks appellate review of an issue of fact and makes legal issues the sole assignments of error on an appeal from a trial court acting in its role as a court of general jurisdiction, then our review is de novo for both jurisdictional and non-jurisdictional assigned errors of law.  ⁶

¶3 The Court has frequently discussed the “jurisdiction” or “power” of the trial court invoked by a party seeking declaratory judgment relief, and we have linked the concept of justiciability when declaratory relief is sought with the jurisdiction of the trial court to grant such relief.  ⁷ We have listed four elements of justiciability and explained a 12 O.S. § 1651 declaratory judgment proceeding invests District Courts with jurisdiction, and one of these elements is a plaintiff seeking declaratory relief must possess a legal interest in the controversy, that is to say, a legally protectable interest.  ⁸

¶4 The declaratory relief action was brought by a member of the Legislature in his “official capacity.” His legally protectable justiciable interest must be possessed by him in his official capacity. An undisputed issue of fact and law herein is that petitioner and any public employees under petitioner's direction and control are not part of the Executive Department, and the challenged Executive Order applies solely to public employees under the direction and control of the Executive Department.  ⁹

¶5 Petitioner argues the Executive Order both impedes the ability of legislators to conduct legislative business and violates “statutory law.” Petition, at pg.2. Petitioner's emergency application for a temporary restraining order states that: “Later, executive orders - such as Executive Order 2020-20 issued on May 30, 2020, which relied on the Oklahoma Emergency Management Act of 2003 - ordered state agencies to institute remote work policies, promulgate emergency rules, and limit non-essential out-of-state travel.” Emergency Application, at pg. 3.

¶6 The Oklahoma Emergency Management Act of 2003, 63 O.S. §§ 683.1 683.24 (as amended), states in part that the Act: “Confer[s] upon the Governor and upon executive heads or governing bodies of the political subdivisions of the state the emergency powers provided by the Oklahoma Emergency Management Act of 2003.” 63 O.S. § 683.2(4). The Act also states in part: “In the event of an emergency that exceeds local capability, the Governor may assume direct operational control over all or any part of the emergency management functions within this state.” 63 O.S. § 638.9(A). Further, the Act states the Governor may “Make, amend, and rescind the necessary orders and rules to carry out the provisions of the Oklahoma Emergency Management Act of 2003 within the limits of authority conferred upon the Governor herein, with due consideration of the emergency management plans of the federal government.” 63 O.S.§ 683.9(D)(1) (emphasis added). The Act provides in part that: “Any such emergency [natural or man-made], whether proclaimed by the Governor or by the Legislature, shall terminate upon the proclamation of the termination thereof by the Governor, or by passage by the Legislature of a concurrent resolution terminating such emergency.” 63 O.S. § 683.9 (explanation added).

¶7 The petition and application for a temporary restraining order and temporary injunction do not cite any specific provision of the Oklahoma Emergency Management Act of 2003 allegedly violated by the Governor. Petitioner states the Governor's original Executive Order authorizing alternative locations for Executive Department employees to work was pursuant to the Governor's authority pursuant to the Act. Petitioner does not allege an arbitrary exercise of a power pursuant to the Act occurred when the Governor rescinded another order previously issued pursuant to the same Act.

¶8 Petitioner's argument also appears to include a complaint that the Governor's Executive Order did not merely rescind a previous Executive Order and restore employees to their employment status quo ante COVID (state of things before Covid), but required a new condition of employment state-wide for Executive Department employees. Petitioner alleges such an Executive Order intrudes upon legislative power. Title 74 of the Oklahoma Statutes contains many provisions governing state employees. Petitioner does not point to any statute in Title 74 allegedly violated by the Governor. Petitioner does not point to any provision in Executive Order, No. 2024-29, that would prevent the Legislature from creating future legislation concerning Executive Department employees and their locations for performing their duties. The Court's opinion states petitioner's allegations fall short of pleading an institutional injury to the Legislature in this case. I agree.

¶9 Petitioner's allegations do not plead a justiciable controversy in this case. The allegations state the Executive Order is based in part upon express statutory authority, and also in part upon statutory authority that has not been conferred on the Governor but also has not been expressly withheld when the Governor manages Executive Department employees. Petitioner's argument does not show a challenged Executive Order containing substance that is exclusively legislative pursuant to either the Oklahoma Constitution or current statutes. I concur with affirming the District Court.

¶1 I dissent to the majority opinion. I would reverse the trial court's order dismissing Representative Fugate's Petition for lack of standing, and would remand the case for a first-instance determination of the merits of his claims.

¶2 The majority opinion has omitted some important aspects of our traditional standard of review in appeals concerning district court dismissal based on a plaintiff's lack of standing. In such appeals, we've repeatedly said:

A trial court's judgment dismissing a petition is reviewed de novo. When ruling on a motion to dismiss for lack of standing, the trial court and the appellate court must accept the petition's allegations and all inferences that can be drawn from them as true. The party seeking relief has a greater burden to show she has standing in later stages of the proceedings than when defending a pretrial motion to dismiss.

Eldredge v. Taylor, 2014 OK 92, ¶ 3, 339 P.3d 888, 890 (citations omitted).

When ruling on a pretrial motion to dismiss for lack of standing, the trial court, and subsequently the reviewing court, “must construe the petition in favor of the complaining party.” If the plaintiff alleges facts which are sufficient to establish standing, then the case proceeds to the next stage. A party's standing may be examined at any stage of the proceedings, and the party seeking relief has a great burden at later stages in the case than in defending a pretrial motion to dismiss.

Okla. Educ. Ass'n v. State ex rel. Okla. Legislature, 2007 OK 30, ¶ 10, 158 P.3d 1058, 1063 (footnotes omitted).

[S]tanding does not depend on the merits of the plaintiff's contention that particular conduct is illegal. Before a litigant possesses standing as a proper party to seek injunctive relief, it must be alleged that: the challenged action has caused him/her injury in fact; the relief sought would remedy the injury; and, the interest sought to be protected is within the zone of interest to be protected or regulated by the statute in question. For purposes of ruling on a motion to dismiss for lack of standing, the trial court and the reviewing court must construe the petition in favor of the complaining party. It is not necessary to decide whether a litigant will ultimately be entitled to any relief in order to hold that the party has standing to seek judicial redress for his/her grievance.

Indep. Sch. Dist. No. 9 of Tulsa Cty. v. Glass, 1982 OK 2, ¶ 10, 639 P.2d 1233, 1237 (footnotes omitted). I would invoke such language and give special attention to the fact that a party defending a pretrial motion to dismiss has a lesser burden to show he has standing than he or she would have at the summary judgment stage or at trial.

¶3 The majority dismisses Representative Fugate's assertion that our standing jurisprudence confers standing upon legislators to defend legislative prerogatives and to prevent usurpation of legislative power. See Majority Op. ¶ 9. In Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232, Justice Opala wrote an opinion for a seven-member majority of this Court and summarized the types of injuries which may be suffered by legislators as follows:

One commentator categorizes the injuries which may be suffered by legislators as (1) diluted vote, (2) usurpation of legislative power, and (3) diminished effectives in carrying out legislative duties absent a judicial declaration. Benck, Standing For State And Federal Legislators, 23 Santa Clara L. Rev. 811, 821 (1983). Another authority theorizes a legislator has standing “(1) as an advocate of traditional individual interest that happens to be connected with legislative activities; (2) as a representative of his or her constituents; (3) as an officially designated representative of a legislative body, typically challenging allegedly unlawful executive action; or (4) as a vindicator of his or her alleged personal interest in full exercise of official legislative powers.” [Emphasis supplied.] L. Tribe, American Constitutional Law § 3-20 (2d Ed. 1988).

1993 OK 162, ¶ 6 n.28, 865 P.2d at 1238 n.28. Relying upon this recitation of the applicable law, Representative Fugate alleges his injury is the Governor's usurpation of legislative power.

¶4 Representative Fugate contends the Governor has usurped the legislative prerogative insofar as the Governor has exercised power he no longer possessed under the Oklahoma Emergency Management Act of 2003. See Emergency Appl. for TRO & Temp. Inj. & Br. in Supp. 3 n.1. More specifically, Representative Fugate contends that any authority the Governor had to require state employees either to work from home or to return to the office pursuant to the Catastrophic Health Emergency Powers Act, 63 O.S.2011 & Supp.2020, §§ 6101 et seq., was terminated when the Legislature passed a concurrent resolution terminating the catastrophic health emergency effective May 30, 2020 pursuant to section 6405(C) of that Act. Emergency Appl. for TRO & Temp. Inj. & Br. in Supp. 3 n.1 (referencing S. Con. Res. 2X, 57th Leg., 1st Extra. Sess. (Okla. 2020)). He further argues that any similar authority the Governor had under the Oklahoma Emergency Management Act of 2003, 63 O.S.2011 & Supp.2020, §§ 683.1 et seq.--including the authority to rescind Executive Order No. 2020-20 pursuant to section 683.8(D)(1)--had expired effective May 4, 2021, because of an executive order the Governor himself entered rescinding Oklahoma's COVID-19 state of emergency. Emergency Appl. for TRO & Temp. Inj. & Br. in Supp. 3 n.1 (referencing Exec. Order No. 2021-11, 38 Okla. Reg. 757 (June 1, 2021), withdrawing & rescinding 2d Am. Exec. Order No. 2021-07, 38 Okla. Reg. 743 (May 3, 2021)). It would appear this is what Representative Fugate meant when he said, “Executive Order 2024-29 is void, as it violates separation of powers and exceeds the Governor's authority under the Oklahoma Constitution and statutory law.” The majority's assertion that “Representative Fugate alleges the Executive Order ․ violates ‘statutory law’--yet fails to point to a statute the Governor allegedly violated,” see Majority Op. ¶ 12, is incorrect.

¶5 Representative Fugate further alleges that Executive Order 2024-29 “purport[s] to dictate new statewide policy for state employment conditions--namely, banning remote or hybrid work unless narrowly excepted--without legislative enactment or appropriation” that will be needed to cover “the inevitable additional expense for office expansions or facility upgrades -- arising from a full return-to-office mandate.” Pet. for Decl. & Inj. Relief ¶¶ 18, 20, at 4-5. Therein lies the injury, i.e., the Governor's usurpation of legislative authority in violation of the separation-of-power principles found in Article IV, Section 1 and Article V, Section 1 of the Oklahoma Constitution.  ¹ In Russell Petroleum Co. v. Walker, 1933 OK 75, 162 Okla. 216, 19 P.2d 582, this Court weighed the validity of two executive orders issued by Governor Bill Murray and found “no order, proclamation or decree of the Governor of the state, as the Chief Executive thereof, has the force of law, the law-making power of the state being vested exclusively elsewhere.” Id. ¶ 19, 19 P.2d at 587. Thus, a string of State Attorneys General have all concluded that “Executive Orders intended to accomplish a legislative result are invalid.” Question Submitted by James R. Barnett, Acting Dir., Okla. Water Res. Bd., 1977 OK AG 191, ¶ 8, 10 Op. Att'y Gen. 147, 149 (Larry Derryberry); accord Question Submitted by Hon. Jim Glover, Okla. H.R., 1988 OK AG 32, ¶¶ 4, 8, 20 Op. Att'y Gen. 73, 74-75, (Robert Henry) (“The language used by the Walker court makes it clear ‘that executive orders designed to accomplish a legislative result are invalid.’ ․ [T]he Governor may not exercise legislative power by means of an executive order.” (quoting Question Submitted by Sen. John W. Young, Op. No. 73-107, 6 Op. Att'y Gen. 16, 19 (Okla. 1973))); Question Submitted by Hon. Don McCorkell, State Rep., Dist. 72, 1996 OK AG 31, ¶ 7, 26 Op. Att'y Gen. 92, 93 (Drew Edmondson) (same generally). Moreover, insofar as our State Constitution requires a balanced budget each session, see Okla. Const. art. X, § 23, the Governor's unilateral policy-making action commits the Legislature to finding funds for appropriations to enable a return-to-work policy they never approved or enacted for various reasons, see Pet. for Decl. & Inj. Relief ¶ 16 (giving multiple reasons that state legislators balked at such a policy). That, in essence, implicates Representative Fugate's effectiveness in carrying out legislative duties related to appropriations, giving rise to a more personal injury that this Court previously found sufficient to confer standing upon the legislator in the Hendrick case. See Hendrick, 1993 OK 162, ¶ 6 & n.28, 865 P.2d at 1238 & n.28.

¶6 This analysis admittedly bleeds into the merits of Representative Fugate's claims for declaratory and injunctive relief. The majority provides limited authority trying to justify the Governor's legal basis for issuing the return-to-work executive order. See Majority Op. ¶¶ 13-14. This appeal has been raised at the motion-to-dismiss stage in the early phases of pretrial proceedings before the district court; the appealed order of dismissal was entered a mere eighteen days after Representative Fugate commenced this litigation. Because I find Representative Fugate has made a prima facie showing of standing and injury-in-fact, I dissent to the majority's affirmance of dismissal for lack of standing. I would reverse and remand the matter back to the district court for a determination on the merits.

FOOTNOTES

1.   Executive Order 2024-29.

2.   The district court also found “[i]t would cause chaos if individual legislators were able to bring a case against the Governor every time they disagreed with an action the Governor took. Therefore, as a prudential matter, the issue would most appropriately be addressed through the political process.” Order, ¶ 2.

3.   Governor Stitt's Response and Objection to Plaintiff's Motion for Temporary Restraining Order and Brief in Support, 4.

4.   Representative Fugate's Reply in Support of Emergency Application for Temporary Restraining Order, 7.

5.   Id. at 8.

6.   Plaintiff's Reply Brief in Support of Emergency Application for Temporary Restraining Order, 1.

7.   See also Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (finding state legislators have a “plain, direct and adequate interest in maintaining the effectiveness of their votes” which give them standing to challenge the constitutionality of a lieutenant governor's tie-breaking vote); Kennedy v. Sampson, 511 F.2d 430, 433-34 (D.C. Cir. 1974) (finding a U.S. Senator has standing to challenge the President's use of the pocket veto); Risser v. Thompson, 930 F.2d 549, 550-551 (7th Cir.1991) (finding state legislators have standing to challenge the governor's partial veto power).

8.   Representative Fugate alleges the Executive Order will somehow dilute his future legislative vote because it undermines the Legislature's authority to establish and approve spending obligations.

9.   Petition for Declaratory and Injunctive Relief, 2.

10.   The Governor's general powers are limited, as neither the Oklahoma Constitution nor any statute provides the Governor with general power to issue executive orders. Absent statutory authority, “no order, proclamation, or decree of the Governor of the state, as chief executive thereof, has the force of law.” Russell Petroleum Company v. Walker, 162 Okla. 216, 19 P.2d 582, 587 (1933).

11.   Executive Order 2020-20, https://www.sos.ok.gov/documents/executive/1946.pdf.

12.   Id.

1.   Abraham v. Homer, 1924 OK 393, 102 Okla. 12, 226 P. 45, 47 48 (1924).

2.   Chandler v. Denton, 1987 OK 109, 747 P.2d 938, 942 943 (discussing jurisdictional and quasi-jurisdictional facts).

3.   McCarney v. Ford Motor Co., 657 F.2d 230, 233 (8th Cir. 1981) (standing is a part of the concept of justiciability, which includes the questions of advisory opinions, mootness and ripeness, and a dismissal based on any of these concepts “which are quasi jurisdictional” does not preclude a second action on the same claim if the justiciability problem can be overcome) (emphasis added); Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126-128, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (discussed the “ ‘prudential’ branch of standing” as encompassing three broad principles: “the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked,” and quoted with approval an assessment stating prudential standing as a zone-of-interests assessment was a misnomer when the issue was whether a party had a right to sue under a substantive statute); cf. Finstad v. Beresford Bancorporation, Inc., 831 F.3d 1009, 1014 (8th Cir. 2016) (dismissal for lack of statutory standing is a ruling on the merits).

4.   Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, ¶13, 270 P.3d 113, 120-121 (discussing Gordon v. Followell, 1964 OK 74, 391 P.2d 242, 243-244, and the concept that declaratory relief is limited to cases of actual controversy, and such is a jurisdictional component in the context of declaratory relief); Dutton v. City of Midwest City, 2015 OK 51, n. 69, 353 P.3d 532(focus of a justiciability analysis is on the parties and the nature of their adverse legal interests in the particular pled controversy, and not on the nature of the pled cause of action as it relates to the power of the court to address that type of action).

5.   Berkson v. State ex rel. Askins, 2023 OK 70, ¶¶36-38, 532 P.3d 36, 50-51.

6.   Knox v. O.G. & E., 2024 OK 37, ¶¶20-21, 549 P.3d 1260, 1268 (When no issue of fact is raised and identified by the parties, then the trial court's order is reviewed de novo on appeal.); Young v. Station 27, Inc., 2017 OK 68, n.48, 404 P.3d 829, 839 (trial court's 12 O.S. § 2012(B)(1) dismissal for lack of subject matter jurisdiction is reviewed de novo); Reeds v. Walker, 2006 OK 43, ¶ 10, 157 P.3d 100, 107 (When there are no contested jurisdictional facts, the question of subject matter jurisdiction is purely one of law which we review de novo.).

7.   Tulsa Indus. Auth. v. City of Tulsa, supra at note 4.

8.   Tulsa Indus. Auth. v. State, 1983 OK 99, 672 P.2d 299, 301.

9.   Okla. Const. Art. IV, § 1: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial Departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

1.   The latter constitutional provision says that “[t]he Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives,” Okla. Const. art. V, § 1; and the former provides in relevant part that, “except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others,” id. art. IV, § 1 (emphasis added).

ROWE, C.J.

Rowe, C.J., Kuehn, V.C.J., Winchester, Edmondson (by separate writing), Gurich, Darby, Kane and Jett, JJ., concur. Combs, J. (by separate writing), dissents.