author: STEWART, Judge.

text:
    Scott P. ROBART, Appellant, v. STATE of Alaska, Appellee.
    No. A-8313.
    Court of Appeals of Alaska.
    Jan. 23, 2004.

      Matthew W. Claman, Claman Law Firm, Anchorage, for Appellant.
    Douglas Kossler and Kenneth M. Rosen-stein, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Juneau, Attorney General, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury found Scott P. Robart guilty of using the state seal for an advertising or commercial purpose without the written permission of the lieutenant governor. On appeal, Robart claims that the statute protecting the state seal, AS 44.09.015, is preempted by federal copyright law. Robart also claims that the district court erred when it refused to issue a protective order to prevent the State from arguing that the state government was unaware of Robart's use of the state seal, that the jury was not instructed on Robart's theory of the "mistake of fact" defense, and that the general verdict form used did not ensure that the jury deliberated on all the elements of his defense. For the reasons expressed below, we find that federal copyright law does not preempt AS 44.09.015, that no error occurred when the district court refused to issue the protective order, that the jury was properly instructed on the mistake of fact defense, and that the general verdict form was adequate. Accordingly, we affirm Robart's conviction.

Facts and proceedings

This case began in 1996, when an employee of the State Department of Commerce and Economic Development wrote Robart and "invited him to submit 'one or more of your company's products' for consideration for a show featuring consumer products from Alaska[.]" The show was to appear on QVC, a home-shopping television cable channel. Robart decided to participate He wanted to use the state seal on a medallion commemorating the anniversary of the Alaska gold rush.

At trial, Robart testified that he did some research regarding use of the state seal, and found the statute that required him to get permission from the lieutenant governor. He called the lieutenant governor's office and was told to put his request in writing; he did so, faxing his request soon after he had called. He got no response. Although he re-faxed his request, and made another phone call, he still received no response. Consequently, he testified that he thought the Heutenant governor's office did not think that the state seal was important, and that the office would not enforce the statute. But ke then called the governor's office, and submitted to that office the faxes he had sent to the lieutenant governor. He received no answer from the governor's office either.

Because he had been ehcouraged by the Department of Economic Development to submit a product, he decided to proceed and to use the state seal on a medallion without permission. Robart submitted a form showing the design of his medallion, which had a reproduction of the state seal on one side. He testified that no one from the state said anything about his not having permission. Nor did anyone tell him not to proceed until he had the permission of the lieutenant governor. Robart said that because no one said anything to him, he thought that his using the medallion without permission was not an issue for anyone in the government.

On February 1 and 2, 1997, various vendors, including Robart, displayed Alaska-made products at a trade show in Anchorage. Robart's medallion was one of those chosen to be sold on QVC. On April 17, 1997, the governor sent Robart a letter, congratulating him on his company's "selection as one of Alaska's top small businesses, and for earning the opportunity to present your product during the upcoming QVC live national broadcast."

On May 24, 1997, Robart appeared on QVC marketing a silver and gold medallion commemorating the anniversary of the 1897 Alaska gold rush. A replica of the state seal was on one side of this medallion, while a design for the Gold Rush Centennial was on the other side John Lindback, then the lieutenant governor's chief of staff, watched the QVC show; when he saw Robart's medallion, he wondered if Robart had permission to use the state seal. Because Robart did not have permission, Lieutenant Governor Fran Ulmer, on May 29, 1997, sent him a letter, with a copy of AS 44.09.015, explaining that it had been her policy since taking office "that the state seal shall not be used for commercial purposes. She told him to stop selling the medallions because he was violating AS 44.09.015. Robart acknowledged receiving this letter.: He responded with a letter that same day. Although he claimed that he was "confused" by the liew-tenant governor's position, he did not admit. that he had known that he needed permission, nor did he claim that he thought he had any authorization to use the state seal.

On August 6, 1997, two months after Ro-bart had been told to stop selling his medallions, Alaska State Trooper Curt Harris, posing as a buyer, purchased two of the medallions from Robart On August 12, 1997, shortly after this purchase, another trooper interviewed Robart. Robart told this trooper that he did not know that he needed permission to use the state seal.

The State charged Robart with using the state seal for commercial purposes without the written permission of the lieutenant governor. Robart moved for dismissal on the grounds that the statute violated his federal and state constitutional rights to free speech. The district court agreed, concluding that "the state statute violated Robart's constitutional right to freedom of speech and expression. The State appealed.

On appeal, after finding that the State had a legitimate governmental interest in regulating the commercial use of the state seal, we concluded that commercial use of the state seal was not protected speech. After we reversed the district court's dismissal, Ro-bart successfully petitioned the supreme court for a hearing. When granting the petition for hearing, the supreme court ordered the parties to brief whether federal copyright law preempted AS 44.09.015. After briefing and oral argument, however, the supreme court dismissed the petition as improvidently granted.

The case then returned to the district court. There, Robart moved to dismiss the charge, arguing that federal copyright law preempted AS 44.09.015. Robart relied on the briefings that he and the State had submitted to the supreme court. Robart also submitted the transcript of the oral argument before the supreme court. Ultimately, District Court Judge John Lohff denied Ro-bart's motion.

At trial, Robart claimed that his defense was a "mistake of fact" regarding whether he had gotten permission to use the seal. But at trial, Robart wanted the jury instructed that the governor (rather than the lieutenant governor) could and did give Robart written permission to use the state seal. To that end, Robart unsuccessfully sought a number of jury instructions that addressed various principles from agency law (agents and principals, and imputed knowledge), and the powers and duties of the governor. Most of these requests for instructions were denied, although the district court did agree to instruct the jury that the executive power of the state is vested in the governor, and that his office included the Heutenant governor and the governor's staff. In addition, the district court modified some of Robart's other proposed instructions. Robart also unsue-cessfully sought both a protective order to prevent the State from claiming that state employees were unaware that he was using the state seal on his medallion after February 1997, and an elaborate special verdict form. A jury found Robart guilty of violating AS 44.09.015. This appeal followed.

Does federal copyright law preempt AS 44.09.015?

Robart claims that federal copyright law preempts AS 44.09.015(a), which provides that a person "may not use or make a die or impression of the state seal for any advertising or commercial purpose, unless written permission has first been obtained from the Heutenant governor.

Federal copyright law is found at 17 U.S.C. §§ 100-1832 (2000). Among other things, it provides in part that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title" 17 U.S.C. § 801(a). Section 301(a), however, is qualified by subsection

(b), which provides that "[nlothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to" certain types of matters or actions. The first of these exceptions is "subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103 [of Title 17]. 4 The second exception does not apply in this case. The third exception addresses "activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [of Title 17].

Robart's position is that the state seal can only be protected by the federal copyright statute. Based on copyright law, he argues that the state seal is now in the public domain and can be used freely by the public. He concludes that the state cannot pass its own statute to provide protections similar to those in the copyright statute.

The State's position is that AS 44.09.015 is not preempted, because it falls within the preemption exceptions listed in 17 U.S.C. § 301(b). The State argues that AS 44.09.015 falls within § 801(b)(1) and (b)(8). Under § 301(b)(1), federal copyright law does not preempt state law that addresses rights or remedies that do not come within the subject matter of copyright as set out in §§ 102 or 108. Meanwhile, under § 301(b)(8), federal copyright law does not preempt state law that addresses rights or remedies "with respect to ... activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright[.]" The State argues that a state seal, because it is the symbol of a sovereign, is not a type of work that comes within the subject matter of copyright.

We agree with the State-copyright law does not preempt the Alaska statute limiting the commercial use of the state seal. We believe it is clear that states have the power to protect symbols of their sovereignty. For instance, the Supreme Judicial Court of Massachusetts in Commonwealth v. R.I. Sherman Manufacturing Co., held that the commonwealth could prevent the use of its seal for advertising or commercial purposes. Convicted of violating a statute that prohibited the use of "'the great seal of the commonwealth, [or] any representation thereof, for any advertising or commercial purpose whatever," the defendant argued that the commonwealth had interfered both with the defendant's trademark and with the commerce clause of the U.S. Constitution. Finding that the commonwealth had appropriated its great seal "to itself as a symbol of its sovereignty, the court said that "(als against the commonwealth, the defendant cannot have any claim to a trademark. The fact that the commonwealth could protect its seal was to the court "too clear for argument. The court also found that because the statute "merely ... protect[ed] the seal and coat of arms of the commonwealth," it did not conflict with the commerce clause.

Likewise, the federal Court of Appeals for the District of Columbia in In re Cahn, Belt, & Co. recognized that as against a state, no person or entity can "acquire [an exclusive use] property right in the [state's] coat of arms ... or any simulation thereof[.]"

In addition, in Katz v. Department of Motor Vehicles, the California Court of Appeals ruled that the state had "the right to protect the legitimacy, credibility and reliability of its symbols and emblems because of the substantial impact the symbols may have on public attitudes and behavior. Katz had challenged the constitutionality of the state's power to prevent certain combinations of numbers, letters or both from appearing on personalized license plates.

Before Congress can be said to have preempted an area that has traditionally been occupied by the states, "congressional intent to supersede state laws must be 'clear and manifestHere, federal copyright law is silent on this issue-state seals are not mentioned at all. Additionally, we cannot find a single federal or state case discussing the application of federal copyright law on laws protecting state seals. Nor have we- or the parties-found any other evidence that Congress intended to preempt the states' ability to protect and regulate their state seals.

Moreover, state seals appear to be more akin to trademarks or service marks than they are to the type of work Congress intended copyrights to cover. The federal trademark statute-unlike the copyright statute-specifically provides for state flags, coats of arms, or other insignia by prohibiting them from being registered. See 15 U.S.C. § 1052 (2000). Additionally, the majority of cases addressing state seals are trademark cases there are no copyright cases addressing this issue.

Although we recognize that trademark and copyright law can overlap, generally speaking, the two schemes address different concerns. Under the copyright statute, an author secures "the sole right to copy the protected work and to license others to produce copies. The copyright holder may not only "exploit his work commercially, [but] may also exercise the copyright in a purely proscriptive manner to prevent anyone from copying the protected work." Trademarks, however, are based on common law concepts of unfair competition; hence, the purpose of a trademark is to "prevent confusion as to the origin of goods or services and to prevent fraud and misrepresentation as to their source. Here, AS 44.09.015 does not provide the equivalent of copyright protection; rather, it provides protection analogous to trademark protection.

Finally, as the State points out, despite the broad sweep of federal copyright law, and despite a specific statute that places all federal government work in the public domain, Congress has passed a statute protecting symbols similar to a state seal. Under 18 U.S.C. § 713(2) (2000), Congress has protected the great seal of United States, the seals of the President and the Vice President of the United States, the seal of the United States Senate, the seal of the United States House of Representatives, and the Seal of the United States Congress. Although Section 718(a) makes it a crime to use any of these seals "for the purpose of conveying ... a false impression of sponsorship or approval by the Government of the United States," subsections (b), (c), (d), and (e) generally make it a crime merely to manufacture, reproduce, use, sell, or purchase any likeness of these seals (except the great seal of the United States) without permission from the appropriate agency. It seems evident that Congress, by protecting specific important federal seals that were left unprotected by copyright law (and by federal trademark law), did not intend to prohibit states from protecting seals that represent state sovereignty.

For all the above reasons, we conclude that federal copyright law does not preempt AS 44.09.015, which protects the state seal from unauthorized commercial use. -

Robart's requested protective order

Robart claims that he was entitled to a protective order that prevented the State's witnesses from claiming that they did not know that he was using the state seal after state employees saw it as part of his initial submission for the trade show. Robart based this request on his claim that under the theory of "imputed knowledge," the knowledge of one state employee must be imputed to all other state employees. After hearing argument, Judge Lohff denied Ro-bart's motion. We find no error. Even assuming that Robart's 'theory of "imputed knowledge" among state agencies and employees was applicable in this case, Robart was convicted for using the state seal after the lieutenant governor expressly informed him that he was doing so illegally. It was not relevant what other state employees knew before Robart was warned. (Moreover, under Robart's "imputed knowledge" theory, when the lieutenant governor told him to stop using the seal, she acted on behalf of the governor.)

Additionally, Robart has not shown how he was prejudiced. No State witness testified that they were ignorant of Robart's use of the state seal. In his reply brief, Robart argues that he wanted the protective order to prevent the State from arguing that the governor could not or did not give him permission to use the state seal. But he did not present this reason to Judge Lohff, nor-for the reasons explained in the next section-was Robart entitled to a protective order that prevented the State from making this argument.

Was the jury instructed on Robart's theory of defense?

Robart next claims that Judge Lohff should have given Robart's proposed jury instructions because these "instructions ... described and defined Robart's theory of defense." At trial Robart characterized his defense as a mistalse of fact, but he claimed that to establish this defense, he was entitled to have the jury instructed on general principles of corporate agency law. To that end, Robart sought instructions that defined "agent" and the seope of an agent's authority. He also wanted the jury instructed that an act or omission of state employees was the act or omission of the governor, and that any act or omission of any state employee, including the governor and the lieutenant governor, was the act or omission of the state.

Most importantly, however, Robart wanted the jury instructed that both the governor and the lieutenant governor could grant permission to use the state seal. Ro-bart's desired defense, and his agency instructions, were based on the notion reflected in this last instruction: that because the governor is the head of the executive branch, he has the same authority as the lieutenant governor over the state seal. Judge Lohff properly rejected this instruction because it is not supported by the constitution or AS 44.09.015.

The Alaska Constitution provides that the lieutenant governor "shall perform such duties as may be prescribed by law and as may be delegated to him by the governor." With regard to the state seal, the lieutenant governor has duties prescribed by law. In AS 44.19.022, the legislature expressly made the lieutenant governor the custodian of the state seal. Likewise, in AS 44.09.015, the legislature granted the lieutenant governor the authority to grant permission to use the state seal for a commercial use. These statutes show a clear legislative intent that the lieutenant governor has authority to permit use of the state seal for a commercial or advertising purpose. Although the governor can, by "appropriate court action or proceeding ... enforce compliance with any constitutional or legislative mandate" nothing in the constitution allows the governor to supplant the lieutenant governor with regard to that person's "duties ... prescribed by law."

Hence, Judge Lohff properly rejected Ro-bart's instructions because they misstated the law-that is, contrary to statute, they told the jury that the governor could grant permission to use the state seal.

Although Judge Lohff rejected Robart's assertion that the governor, as a matter of law, had the authority to grant permission to use the state seal, Judge Lohff allowed Ro-bart to present a legitimate mistake of fact defense. Judge Lohff instructed the jury that "Itlo prove that the defendant did not act under a reasonable mistake of fact, the state must prove" that "the defendant's mistaken belief that he had permission from the lieutenant governor to use a die or impression was not reasonable" and that "the defendant's reliance on a course of communication with the governor or the lieutenant governor in reaching his belief was not reasonable." This defense was based on evidence of the state's consistent failure to respond to Ro-bart's requests for permission, on the encouragement to produce the medallions, and on the congratulatory letter from the governor. This defense properly allowed Robart to argue to the jury that the state, by its actions, "led him to believe that the State permitted his use of the seal."

We conclude that Judge Lohff did not err when, rejecting Robart's characterization of the mistake of fact defense, he denied Ro-bart's proposed jury instructions.

Robart also claims that error occurred when, at the end of trial, Judge Lohff changed two instructions that he had given at the beginning of trial, when he gave the jury some preliminary instructions. Of these, one explained the elements of the offense, while another explained the elements of the defense. In each of these, however, the preliminary instructions omitted the statutory requirement that Robart have "written" permission from the lieutenant governor to use the state seal for a commercial purpose. Later, when discussing the final instructions, the State pointed out that these instructions, to accurately set out the elements of the statute, had to have the word "written" added. Judge Lohff agreed, but Robart objected.

On appeal, Robart argues that changing the preliminary instructions "vitiated" his defense. But Judge Lohff was required to instruct the jury on the essential elements of the offense. Moreover, the defense of mistake of fact instruction did not require that the permission be in writing. The language of this instruction allowed Robart to argue, based on the encouragement he received from state agencies and on his correspondence with the governor and the Heutenant governor, that he had a reasonable "mistaken belief that he had permission from the lieu tenant governor" to use the state seal.

In addition, Robart has not shown how his defense was prejudiced. The record shows that prior to trial he was clearly placed on notice by both the statute and the charging document that he had to have written permission to use the state seal. Before trial, Robart's position was that the governor's April letter was "specific written permission" to use the seal. As for his defense, Robart did not claim in his opening statement that he had written or unwritten permission to use the seal. Instead, he asserted that it had been a reasonable mistake of fact for him to rely on the pattern of non-response from the lieutenant governor, the letter from the governor, and the encouragement he received from other state agencies. In addition, Judge Lohff told Robart early in the trial that he could argue as part of his mistake of fact defense that he had reasonably considered that this letter constituted "written permission" to use the state seal. We conclude that Judge Lohff did not err when he corrected the erroneous preliminary instructions. Under the cireumstances of this case, Robart's defense was not prejudiced.

Robart's other requested instructions

Robart also claims that his theory of defense required the trial court to instruct the jury that the State could not claim that it was ignorant of the law and to apply the definition of "writing" that is included in the Uniform Commercial Code. Robart further claims that the jury should have been given an elaborate definition of what constitutes "acting unreasonably." He also claims that to ensure that the jury considered his defense, he was entitled to a special verdict form. Judge Lohff refused to give the first instruction, and modified the other two; he also rejected Robart's proposed special ver-diet form. ©

Although the trial judge must instruct the jury on the essential elements of an offense or a defense, the trial judge has broad discretion to decide what other instructions to give the jury. Here, we find no abuse of discretion.

Robart argues that the first of these instructions was important because he relied on the government to warn him that he did not have permission to use the seal. But even assuming that such an instruction would ever be warranted in a criminal case, Robart was warned by the lieutenant governor to stop using the state seal; Robart was charged for using the state seal only after he ignored that warning.

Robart next argues that his other two requested instructions were necessary to allow him to present his defense. But "[als long as the instructions actually given by the trial court adequately set forth the applicable law, a more elaborate explanation of the defendant's theory of the case" is not required unless it "would substantially aid the jury in arriving at a just verdict. The instructions as given by Judge Lohff adequately informed the jury as to what constitutes a "writing" under AS 44.09.015, and as to what "acting reasonably" means. Here, the jury was instructed that a writing "includes printing, typewriting or any other intentional reduction to tangible form." From this, Ro-bart was allowed to argue that the governor's congratulatory letter, despite its lack of relevant language, was a "writing." Meanwhile, the jury was instructed that "acting reasonably" meant that "[In deciding whether a party acted reasonably or unreasonably, you may consider what a reasonably prudent person would do under similar cireumstances" and that "[aleting reasonably may consist of doing something that a reasonably prudent person would do, or it may consist in not doing something that a reasonably prudent person would not do." Again, this was sufficient to allow Robart to argue that he had acted reasonably, and that the State had acted unreasonably.

Accordingly, we conclude that no error occurred by the rejection or modification of these three instructions.

Judge Lohff also rejected the special verdict form. Robart argues that the special verdict form was required to ensure that the jury properly considered the elements of his mistake of fact defense. He made a similar argument below, but Judge Lobff rejected this argument and found that the jury could follow the instructions setting out Robart's defense. We conclude that Judge Lohff did not abuse his discretion by using a general verdict form.

Conclusion

Robart's conviction is AFFIRMED.

      . AS 44.09.015(a) & (b).

      . State v. Robart, 988 P.2d 1114, 1114 (Alaska App.1999).

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 1115.

      . Id.

      . Under AS 44.09.015(b), "[vliolation of this section is a misdemeanor, and upon conviction is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both."

      . Section 102(a) provides that "[clopyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This section then provides a list of categories of works of authorship: '
      (1) literary works;
      (2) musical works, including any accompanying words;
      (3) dramatic works, including any accompanying music;
      (4) pantomimes and choreographic works;
      (5) pictorial, graphic, and sculptural works;
      (6) motion pictures and other audiovisual works;
      (7) sound recordings; and
      (8) architectural works.
      Section 102(b) provides that "liln no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
      Section 103 applies to compilations and derivative works of the items listed in § 102, and is not applicable in this case.

      . Section 106 provides that
      [Slubject to sections 107 through 121 [none of which apply in this case}, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
      (1) to reproduce the copyrighted work in copies or phonorecords;
      (2) to prepare derivative works based upon the copyrighted work;
      (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
      (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
      (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
      (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

      . The state seal is provided for in article XV, § 21, of the Alaska Constitution.

      . 189 Mass. 76, 75 N.E. 71, 72 (1905).

      . Id. at 71.

      . 1d.

      . Id. at 72.

      . Id.

      . Id.

      . 27 App. D.C. 173 (1906).

      . Id. at 178-79.

      . 32 Cal.App.3d 679, 108 Cal.Rptr. 424 (1973).

      . Id. at 428.

      . Id. at 425.

      . Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995) (citations omitted).

      . See R.I. Sherman Mfg. Co., 75 N.E. at 71; In re Cahn, Belt, & Co., 27 App. D.C. at 173.

      . See, eg., Bicentennial Comm'n. v. Olde Bradford Co., 26 Pa.Cmwlth. 636, 365 A.2d 172, 176 (1976) ("Although the laws governing copyrights and trademarks may overlap as applied to a single item, they are intended to grant quite different forms of protection to their holders.").

      . Id. (citation omitted).

      . Id.

      . Id.

      . See 17 U.S.C. § 105.

      . Alaska Const. art. III, § 7.

      . Id. art. III, § 16.

      . See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) ("[Thhe trial court is under a duty to instruct the jury on the essential elements of the offense.").

      . Stoneking v. State, 800 P.2d 949, 950 (Alaska App.1990).

      . Robart, 988 P.2d at 1114.

      . Lee v. State, 760 P.2d 1039, 1041 (Alaska App.1988).


source: Caselaw Access Project

author: BOUDREAU, Justice.

license: Public Domain

text:
    2003 OK 105
    In the Matter of the APPLICATION OF THE OKLAHOMA DEPARTMENT OF TRANSPORTATION for Approval of Not to Exceed $100 Million Oklahoma Department of Transportation Grant Anticipation Notes, Series 2003.
    No. 99,224.
    Supreme Court of Oklahoma.
    Dec. 9, 2003.

      Lynne C. Rogers, Assistant Attorney General, Norman N. Hill, General Counsel, Oklahoma Department of Transportation, Gary M. Bush, Oklahoma City, OK, and Thomas G. Hilborne, Jr., Tulsa, OK, for applicant.
    Protestant Jerry R. Fent, pro se, Oklahoma City, OK.
    Protestant Edwin Kessler, pro se, Norman, OK.
   BOUDREAU, Justice.

1 1 In 2000, the Legislature authorized the Oklahoma Department of Transportation (ODOT) to issue grant anticipation notes for projects of economic significance. It did so by adding two sentences to 69 0.8.8upp.1997, § 2001(E)(2), which read as follows, "The Department of Transportation may issue Grant Anticipation Notes for projects of economic significance. Such bond issue or issues shall be subject to the unanimous approval of the Contingency Review Board."

12 In 2002, ODOT proposed to issue a series of grant anticipation notes not to exceed $100 million and sought this Court's approval of the notes. In that original proceeding, we struck down the sentence requiring Contingency Review Board approval in § 2001(E)(2) as contrary to the constitutional separation of powers provision, severed that sentence from the statute and refused to approve issuance of the notes. Application of the Oklahoma Department of Transportation, 2002 OK 74, 64 P.3d 546.

13 In 2008, ODOT again applied to this Court for approval of proposed grant anticipation notes in an amount not to exceed $100 million. In support of its application, ODOT asserted that 1) 69 0.98.2001, § 2001(E)@) authorizes the issuance of the proposed grant anticipation notes; 2) grant anticipation notes are a financing device to fund a federal highway project before the federal highway aid for the project becomes available for expenditure; 3) the principal, interest and costs of the proposed notes will be retired with future receipts of federal highway aid funds; 4) the proposed notes are self-liquidating in that they will be paid from the Note Payment Fund that will be established for the deposit of Federal Transportation Funds; and, 5) the proposed notes will not be backed by the full faith and eredit of the State of Oklahoma nor will they constitute a debt of the state.

14 Two protestants challenged ODOT's application for approval of the proposed notes. Ed Kessler, Common Cause of Oklahoma, and Jerry Fent, an Oklahoma citizen, argued that the proposed notes should not be issued without an antecedent approval by a vote of the people in compliance with Okla. Const., art. 10, §§ 28 and 25. Fent also argued that 1) legislative appointment of two of the members of the Council of Bond Oversight violates the constitutional separation of powers provision and renders the statutory note-approval process invalid; and 2) ODOT plans to secure the notes with financial guaranty insurance which will obligate the state to reimburse the insurer if it is required to pay

T5 The parties' contentions present two decisive constitutional issues. The first issue is whether the statutorily-preseribed method of appointment of members to the Council of Bond Oversight contravenes the separation of powers provision in the Okla. Const., art. 4, § 1. The second issue is whether the proposed notes will create a state debt subject to antecedent voter approval pursuant to the Okla. Const., art. 10, §§ 28 and 25

Y6 This proceeding invokes our original jurisdiction In original proceedings we examine the record before us to ascertain whether all the critical facts are established. Our exercise of original jurisdiction over issues of fact and law is plenary and

I. Background

T7 On October 7, 2002, the Oklahoma Transportation Commission authorized ODOT to issue grant anticipation notes in an amount not to exeeed $100 million The Commission resolved that the proposed obligations would be paid with anticipated future federal highway aid funds. On October 9, 2002, the Council on Bond Oversight approved ODOT's proposal to issue the grant anticipation notes. On September 25, 2003, the Council on Bond Oversight again approved issuance of the notes. Neither protestant challenged the legality of the procedures of the meetings of the Transportation Commission and the Council on Bond Oversight wherein the issuance of the proposed notes was authorized and approved.

II. Council of Bond Oversight

18 Pursuant to 62 0.8.2001, § 695.9 of the Oklahoma Bond Oversight and Reform Act, 62 0.8.2001, §§ 695.1, et seq., any obligation proposed to be issued by a state governmental entity must be approved by the Executive Bond Oversight Commission and the Legislative Bond Oversight Commission. However, in Application of the Oklahoma Department of Transportation, 2002 OK 74, 64 P.3d 546, we considered whether legislator/membership of the Legislative Bond Oversight Commission is repugnant to the state constitution. We determined that the legislator/membership of the Legislative Bond Oversight Commission contravened the separation of powers provision in the Okla. Const., art. 4, § 1.

1 9 In light of this ruling in Application of the Oklahoma Department of Transportation, supra., the Council of Bond Oversight was established and the power and duties of the Executive and Legislative Bond Oversight Commissions devolved upon the Council pursuant to 62 O0.8.2001, § 695.114. The duties of the Council of Bond Oversight include reviewing obligations proposed to be issued by state entities for compliance with applicable laws and determining whether the purposes of the obligations are for the furtherance and accomplishment of authorized and proper public functions. 62 0.S$.2001, § 695.8. The Council of Bond Oversight consists of five nonlegislative members. 62 ©.8.2001, § 695.114. The Director of State Finance is a member. Of the other four members, one is appointed by the President Pro Tempore of the Oklahoma Senate; one is appointed by the Speaker of the Oklahoma House of Representatives; and two are appointed by the Governor with the advice and consent of the Oklahoma Senate.

110 Protestant Jerry Fent challenges the authority of the President Pro Tempore of the Senate and the Speaker of the House of Representatives to make appointments to the Council of Bond Oversight. Fent argues that the Council fulfills an executive function and appointment of its members, even non-legislative persons, by legislators encroaches upon the executive department of government. Fent's challenge is directed to the appointment authority and not the qualifica-

tions of the sitting members of the Council of Bond Oversight.

III. 62 0.8.2001, § 695.114, on its face, does not violate the separation of powers provision in Okla. Const., art. 4, § 1, by authorizing the President Pro Tempore of the Oklahoma Senate and the Speaker of the Oklahoma House of Representatives to make appoint- ~ ments of nonlegislative persons to the Council of Bond Oversight.

{11 Although the statute authorizing ODOT to issue grant anticipation notes, 69 § 2001(E)(2), does not mention the Council of Bond Oversight, the Council's approval of the proposed notes is required by the Oklahoma Bond Oversight and Reform Act, supra. Consequently, we must consider Fent's constitutional challenge to the appointment authority prescribed in 62 O.S. 2001, § 695.114.

T12 Fent's primary argument is that legislative appointments to the Council of Bond Oversight are contrary to the express provisions in our state constitution that the three departments of government shall be separate and distinct and neither shall exercise the power belonging to the other. In determining whether legislative appointments violate our state constitutional separation of powers provision we look to see if the executive department is being subjected, directly or indirectly, to the coercive influence of the legislative department and if there is a significant interference by the legislative department with the executive department. Application of the Oklahoma Department of Transportation, supra. The analysis involves four questions, only three of which are applicable in this matter.

{13 The first question considers whether the power vested in the Council on Bond Oversight is executive or legislative or a blend of the two. This question requires us to evaluate the duties of the Council with respect to obligations of a state entity. Title 62 0.8.2001, §§ 695.8 and 695.9 impose upon the Council the duty to approve proposed obligations after 1) reviewing the obligations for compliance with applicable laws, and 2) determining whether the purpose of the obligations is a proper public function or purpose. In approving proposed obligations, the Council undoubtedly exercises enforcement power, the dominant aspect of which is executive or administrative. However, in its oversight of state indebtedness, the Council exercises a power that has a clear legislative aspect. The Council's exercise of power over state obligations may properly be viewed as a blend of executive and legislative power.

{14 The second question requires us to evaluate the degree of control the Legislature is attempting to exercise by authorizing two legislative appointments to the Council of Bond Oversight. We note that the statute does not permit sitting legislators to be appointed to serve on the Council as was the case in the earlier Application of the Oklahoma Department of Transportation, supra. Accordingly, there is an absence of direct legislative control of the Council. Of course, it may be argued that the President Pro Tempore of the Senate and the Speaker of the House can exert control over the nonleg-islative persons they appoint as members of the Council and thus indirectly over the Council itself. However, a majority of the members of the Council, sufficient to control the note-approval process (three of the five), are gubernatorial appointments. The power of approval remains in the executive department. We can discern no legislative intent to control the Council of Bond Oversight by vesting appointment authority in the President Pro Tempore of the Senate and the Speaker of the House.

15 The third question-whether the Legislature is attempting to encroach upon or interfere with the executive department-again requires us to consider legislative intent or motives. In fulfilling its oversight responsibilities respecting obligations of state entities, the Council of Bond Oversight is charged with the duty to hire a bond advisor who must be knowledgeable of national and international standards for the issuance of obligations by governmental entities. The State Bond Advisor assists the Council in overseeing the issuance of public indebtedness. The Council is the governmental entity to which the Legislature and the Governor would turn to stay abreast of the debt levels and to assure. responsible public indebtedness. We ean discern no legislative motive to encroach upon or interfere with the -executive department through the Council of Bond Oversight. Rather, we view the Council as an attempt to cooperate with the executive department to assure that both the executive and legislative departments have a reliable source of information concerning public indebtedness.

116 In summary, we conclude that the appointments to the Council of Bond Oversight by the President Pro Tempore of the Oklahoma Senate and the Speaker of the Oklahoma House of Representatives do not subject the executive department, directly nor indirectly, to the coercive influence of the legislative department. Accordingly, 62 0.8. 2001, § 695.11A, on its face, does not violate the separation of powers provision in the Okla. Const., art. 4, § 1.

IV. Grant Anticipation Notes

17 Finding no constitutional infirmity in the statutory note-approval process under the facts and cireumstances presented in this matter, we now turn to the second issue. Do the proposed grant anticipation notes create a debt subject to the provisions of the Okla. Const., art. 10, §§ 283 and 257

1 18 The Supreme Court of Colorado summarized the federal highway aid statutes that gave rise to grant anticipation debt financing of highway projects by the states in Submission of Interrogatories on House Bill 99-1325, 979 P.2d 549, 552 (Colo.1999). The federal government has guaranteed that 90.5 percent of payments made into the Federal Highway Trust Fund attributable to highway users in each state for the years 1998 through 2008 will be allocated to the respective state as available federal highway aid. 283 U.S.C. § 105(Ff). As a condition to receiving federal highway aid to reimburse the cost of a project, each state must pay its share of ten to twenty percent of the project cost. 28 U.S.C. § 120(a). Federal highway aid is reimbursed on a pay-as-you-go system. Historically, federal highway aid reimbursements could be used to pay the principal of a state debt but not interest or issuance costs. To avoid the delays in the pay-as-you-go-system, the National Highway System Designation Act of 1995 authorized the use of federal highway aid to pay interest, insurance and costs of issuance as well as the principal portion of debt issued to finance federal-aid highway projects. 23 U.S.C. § 122(b).

[ 19 Since the 1995 statutory changes, several states have structured or are structuring debt financing to be retired, at least in part, with future federal highway aid reimbursements. These financing mechanisms are referred to as grant anticipation revenue vehicles or GARVEEs, although grant anticipation notes are also referred to as GANs.

V. The facts regarding the proposed grant anticipation notes

120 ODOT's application and briefs in support set forth the following basic facts regarding the proposed GARVEE notes. The principal amount of the GARVEE notes may not exceed $100 million. The term of the GARVEE notes may not exceed twenty years. The average interest rate to be paid on the GARVEE notes may not exceed seven percent and the underwriting discount may not exceed three percent. ODOT has not yet identified any particular project for which the proceeds of the proposed GARVEE notes will be expended.

{21 The face of the GARVEE notes will include an express provision that they are not backed by the full faith and credit of the State of Oklahoma nor are they an obligation of the state. ODOT's promise of payment on the GARVEE notes is conditioned on receipt of federal highway aid funds allocated by Congress but ODOT does not promise that any future Congress will allocate any funds or that it will, in the future, receive any federal highway aid funds. Further, the GARVEE notes will not constitute a commitment, guarantee, or obligation on the part of the United States as provided in 28 U.S.C. § 122.

[22 No future state appropriation will be required to retire the GARVEE notes. They

are to be retired solely with future federal highway aid distributed to and held in trust by or on behalf of ODOT in the Note Payment Fund. As the federal highway aid funds are received by or on behalf of ODOT, they will be placed in the Note Payment Fund. In the event of default by ODOT, the rights of the holders of the GARVEE notes are limited to the funds held in the Note Payment Fund.

VI. The proposed grant anticipation notes will not constitute a state debt and are not subject to the Okla. Const., art. 10, §§ 23 and 25.

[8] 123 In the division of governmental power, the state fiscal policy is constitutionally vested in the Legislature. However, other constitutional provisions, such as art. 10, §§ 23 and 25, impose limitations on the Legislature's control of state fiscal affairs.

124 Commonly referred to as the balanced-budget amendment, art. 10, § 28, prohibits a state ageney operating on state revenue from incurring "obligations in excess of the unencumbered balance of cash on hand. The obvious intent of this prohibition is to place all state agencies on a pay-as-you-go cash basis and prevent the pledging of state revenue that will be collected in future years or the creating of obligations for state revenues that would otherwise be available for general purposes of future years. Article 10, § 25 requires that a legislative enactment creating or authorizing the cere-ation of a state debt, other than necessary to repel invasion as provided in art. 10, $ 24, must be approved by a vote of the people before taking effect. Whether the GARVEE notes, if issued, would constitute a state debt under the Okla. Const., art. 10, § 28 is a judicial question.

T25 The proposed GARVEE notes when issued by the Oklahoma Department of Transportation will constitute an obligation payable solely from future receipts of federal highway aid dedicated to the retirement of the notes. The principal, interest, or costs of the GARVEE notes will not be paid with future revenues raised by the taxing power of this State, nor will they be paid from future funds that would otherwise be available for general governmental purposes. In the event of default, note holders will be paid only from the Note Payment Fund and any receipts of federal highway aid dedicated to the retirement of the notes. Under these circumstances, the proposed GARVEE notes will not constitute a debt of the State of Oklahoma under the Okla. Const., art. 10, § 28. Accordingly, antecedent voter approval pursuant to the Okla. Const., art. 10, § 25 is not required for issuance of the proposed GARVEE notes.

PROPOSED OKLAHOMA DEPARTMENT OF TRANSPORTATION GRANT ANTICIPATION NOTES, SERIES 2003, NOT TO EXCEED $100 MILLION APPROVED.

WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, KAUGER, SUMMERS, and BOUDREAU, JJ., concur.

HARGRAVE, J., concurs in result.

WINCHESTER, J., disqualified.

      . 2000 Okla. Sess. Laws, ch. 401, § 1, now codified at 69 0.$.2001, § 2001.

      . ODOT asserts that this proceeding is authorized in 20 0.$.2001, § 14.2. It is not. Section 14.2 was enacted in 2001 Okla. Sess. Laws, ch. 401, § 1, and it was repealed in 2002 Okla. Sess Laws, ch. 481, § 4. This proceeding is authorized in 20 0.$.2001, § 14.1. Section 14.1 provides that any state agency "authorized to issue bonds, notes, or other evidences of indebtedness may ... file an application with the Supreme Court of Oklahoma for approval of the obligations" and that notice shall be given to "inform all persons interested that they may file protests against the issuance of the obligations and be present at the hearing and contest its legality."

      . At oral argument, Fent urged that ODOT should be required to make a full disclosure of the terms and conditions of the insurance before this Court renders a decision in this matter. ODOT represented to the Court that the notes will not be secured by any insurance.

      . ODOT also took the position that Fent has no standing as a citizen, taxpayer or voter to challenge the proposed notes. Fent responded that he is an interested person under 20 0.$.2001, § 14.1 and entitled to be heard in this proceeding. ODOT did not present any persuasive authority that would support excluding Fent as an interested person under the terms of 20 O.S. 2001, § 14.1. Higganbotham v. State of Oklahoma ex rel. Oklahoma Transportation Commission, 328 F.3d 638 (10th Cir.2003), is inapposite. The Higganbotham case determined that the plaintiff did not have standing, either as taxpayer, citizen or voter, to bring suit against the United States over whether the spending clause of the United States Constitution was violated by the {federal statute authorizing the federal government to reimburse states for costs associated with the issuance of bonds for state transportation projects. It also determined that the Eleventh Amendment precluded the federal court from hearing plaintiff's claim that his rights under the Oklahoma Constitution to vote on the state's issuance of debt were violated by an Oklahoma statute authorizing the state to issue bonds for certain highway projects. In this proceeding, Fent makes no claim against the federal government concerning a violation of the spending clause of the U.S. Constitution nor does he seek to sue the state in federal court. ODOT's challenge to Fent's standing in this proceeding has no merit.

      . In addition to the appellate jurisdiction and the original jurisdiction of this Court, the Okla. Const., art. 7, § 4, provides that we may exercise such other and further jurisdiction as may be conferred by statute. 20 0.$.2001, § 14.1 confers discretionary jurisdiction upon this Court to consider this matter. Section 14.1 provides in part that "Exclusive original jurisdiction shall be conferred upon the Supreme Court to hear and determine each such application ... [and the] Court may ... pass upon the applications and any protests...."

      . State ex rel. Oklahoma Bar Association v. Arthur, 1999 OK 97, ¶ 4, 991 P.2d 1026, 1027; State ex rel. Oklahoma Bar Association v. Stutsman, 1999 OK 62, ¶ 4, 990 P.2d 854, 856.

      . The Oklahoma Transportation Commission is the policy making and governing body for ODOT. 69 0.$.2001, § 4006.

      . ODOT's appendix filed in this proceeding includes the Commission's 1) Amended and Restated Resolution Authorizing Issuance of Grant Anticipation Notes, Series 2003, in the Amount of Not to Exceed $100 Million, 2) Form of Grant Anticipation Note, Series 2003, 3) Form of Master Trust Indenture between Oklahoma Department of Transportation and a national banking association, and 4) Series 2003 Supplemental Trust Indenture.

      . ODOT's appendix includes a letter from the State Bond Advisor, advising that the Council on Bond Oversight approved ODOT's request to issue up to $100,000,000 Tax-Exempt Grant Anticipation Notes. That approval expired April 7, 2003. ODOT's appendix also contains a second letter from the State Bond Advisor extending the Council's approval until October 4, 2003, pursuant to 62 0.$.2001, § 695.9(B)(4).

      . Pursuant to the Oklahoma Bond Oversight and Reform Act, 62 0.$.2001, §§ 695.1 et seq. and our opinion in Application of the Oklahoma Department of Transportation, supra., the proposed grant anticipation notes must be approved by the Council on Bond Oversight. The State Bond Advisor may extend the Council's approval of the proposed obligation for a single period of 180 days. 62 0.S.2001, § 695.9(B)(4). Before the State Bond Advisor's extension expired October 4, 2003, the Council re-approved the proposed grant anticipation notes on September 25, 2003.

      . The Director of State Finance is appointed by the Governor with advice and consent of the Senate. 62 0.$.2001, § 41.2.

      . Okla. Const., art. 4, § 1, states:
      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.

      . Application of the Oklahoma Department of Transportation, 2002 OK 74, at ¶ 13, 64 P.3d at 550-51, considered four questions in deciding whether legislators sitting as the Legislative Bond Oversight Commission violate the separation of powers: 1) Is the Commission's power exclusively executive or legislative or a blend of the two? 2) What degree of control is the Legislature attempting to exert through the legislative membership of the Commission? 3) Is the Legislature attempting to cooperate with the executive by furnishing some expertise or is it attempting to exert its superiority over the executive department? And, 4) What is the practical result of the blending of powers as shown by actual experience over a period of time, if evidence is available? Because the record before us presents no evidence regarding the practical result of the blending of powers to oversee the issuance of obligations proposed by state governmental entities, we do not consider the fourth question.

      . 62 0.9.2001, § 695.7, as amended by 2003 Okla. Sess. Laws, ch. 215, § 1, effective May 14, 2003, provides that the Council of Bond Oversight shall appoint the State Bond Advisor with the advice and consent of the Senate. Originally, the Oklahoma State Bond Advisor was a full-time-employment position in the Department of Central Services. 62 O.S.2001, § 695.7(B). As of July 1, 2003, the Office of the Oklahoma State Bond Advisor is a separate and distinct agency of the state. Id. and 2003 Okla. Sess. Laws, ch. 215, § 2, 62 O.S.Supp.2003, § 695.7a(A).

      . The State Bond Advisor must be knowledgeable in the current standards for the issuance of obligations by governmental entities and experienced in the negotiations of matters essential to providing the best price and terms of obligations for the benefit of Oklahoma firms, farms, individuals and local communities 62 0.S$.2001, § 695.7(A). The duties of the State Bond Advisor are 1) to provide assistance and advice to state governmental entities with respect to issuance of obligations, 2) to review, negotiate and approve or disapprove fees and expenses for goods and services requisite to issuance of obligations, 3) to represent the interests of the state before rating agencies and credit enhancement providers, and 4) to serve as an advisor to the Governor and Legislature with respect to issuance of indebtedness reviewed by the Council 62 0.$.2001, § 695.7.

      . In 62 0.$.2001, § 695.2, the Legislature declared its intent to establish procedures for significant systematic oversight of the issuance of bonds and other obligations by state governmen-ial entities to preserve the economic well-being of the state and to protect the public welfare of the state.

      . Fent also contends that the legislative appointments to the Council on Bond Oversight - impermissibly invades the executive department because executive power extends not only to enforce the laws but also to appoint the officers, employees and agents charged with the duty to enforce the laws. Springer v. Government of the Philippine Islands, 277 U.S. 189, 201-202, 48 S.Ct. 480, 482, 72 L.Ed.2d 845, 849. Although this is a recognized principle inherent in the American constitutional system of government, we have long recognized that the Governor's constitutional appointment power is limited in Oklahoma. Riley v. State ex rel. McDaniel, 1914 OK 251, 43 Okla. 65, 141 P. 264. Riley teaches that our state constitution does not vest the appointment power as an exclusive function of either the executive, legislative or judicial departments; and that the language in Okla. Const., art. 6; § 13, authorizing the Governor to commission all officers not otherwise commissioned by law, does not vest the appointment of executive officers exclusively in the Governor. Riley considered whether the statute which named the Secretary of the State Senate to serve as the Secretary of the State Election Board intervened with the Governor's appointment authority provided in Okla. Const., art. 6, § 13. Rejecting the argument that a legislature may not create an office and then fill the office, Riley observed that it is the people who decide which department of government may exercise the power of appointment and that the governor does not possess any inherent power of appointment by virtue of his or her office. Keating v. Edmondson, 2001 OK 110, ¶ 16, 37 P.3d 882, 889-90, reaffirmed the teachings of Riley.

      . The federal Highway Trust Fund is created in 26 U.S.C. § 9503. Funds in the Highway Trust Fund may be expended only for the planning, research, development and construction of Federal-aid highways. 23 U.S.C. § 101.

      . Memorandum to Division Administrators from Michael J. Vecchietti, Director of Administration, Federal Highway Administration, United States Department of Transportation, dated August 18, 2000, regarding GARVEE Bond Guidelines. The guidelines of the Federal Highway Administration (FHWA) set out the requirements that must be satisfied in financing federal highway aid projects through state debt, GARVEE bonds or notes, to be retired with federal highway aid funds. These requirements include the following steps: 1) The state (ODOT) identifies the project and designates the project for advance construction. 2) FHWA reviews the request to assure the project is eligible for federal highway aid under one or more categories listed in 23 U.S.C. § 115. 3) FHWA approves the advance construction designation and executes a project agreement with the ODOT. 4) ODOT constructs the project with GARVEE debt financing. 5) ODOT requests the project agreement be modified to convert the project to a federal highway aid project. 6) ODOT includes the project in its State Transportation Improvement Plan, a short-term plan covering at least three years which includes a priority listing of projects to be carried out in the three-year period and which conforms with the long-term transportation plan. 7) The project agreement is modified whereupon, the federal highway aid for the project is obligated. 8) ODOT requests reimbursement for project costs incurred. And, 9) FHWA reimburses the federal highway aid share of the project costs to ODOT.

      . In approving issuance of the GARVEE notes, the Oklahoma Transportation Commission gave ODOT discretion to fix the principal amount to be borrowed, the number of years before maturity and the interest that will accrue on the principal.

      . The authorizing statute, 69 0.$.2001, § 2001(E)(2) does not designate the highway projects "of economic significance" for which the proceeds of the GARVEE notes may be expended. The list of possibilities is provided in the Amended and Restated Resolution of the Oklahoma Transportation Commission, exhibit A, which reads as follows:
      Projects of economic significance, some or all of which may be funded, in whole or in part, with the proceeds of Grant Anticipation Notes are:
      1. I-44 beginning at the Arkansas River Bridge, extending eastward to Yale Avenue, Tulsa
      2. US 77 (Broadway Extension) bridges and roadway, with interchange at 1-44, from 1/4 mile north of Northeast 63rd Street south to Northeast 36th Street, Oklahoma City
      3. US 70 beginning at Interstate 35 and ending at Durant
      4. US 70 beginning at Idabel and ending at Hugo
      5. SH 99 beginning at I-40 south to Ada
      6. US 59 beginning at U.S. 271 and ending at Interstate 40
      7. US 183 beginning at U.S. 70 and ending at Interstate 40
      8. SH 3 beginning at SH 34 and ending at SH 33
      9. SH 88 beginning at U.S. 412 and ending at Interstate 44
      10. SH 20/88 beginning at Claremore and ending at South Bypass
      11. US 169 beginning at Interstate 244 and ending at 21st Street, Tulsa
      12. US 77 beginning at Interstate 44 and ending at Memorial Road, Oklahoma City.
      From the FHWA's perspective (see, footnote 19), identification of the federal highway aid project is the first step in constructing a highway project through GARVEE debt financing. However, from ODOT's perspective, approval of the
      proposed GARVEE notes must be the first step and identification and approval of FHWA of specific federal-aid highway projects to be financed through GARVEE notes would be the second and third steps. It would simply be inefficient for ODOT to seek FHWA's approval to finance a federal aid highway project with GARVEE notes before the issuance of the notes had been' approved. To avoid such inefficiency, the FHWA generally requires that ODOT have final decision-making authority. 23 CFR. § 1.3 (ch. 1, 4-1-03 Edition), provides that the laws of a state must authorize the state highway department "to make final decisions for the State in all matters relating to ... all contracts and agreements for projects and take such other actions on behalf of the State as may be necessary to comply with the Federal laws and the regulations in this part."
      The protestants in this proceeding do not challenge ODOT's application as premature because the projects have not been identified and approved by FHWA as projects to be constructed with GARVEE note proceeds. Here, notice of this proceeding was given and protests were filed. The protests present an actual controversy worthy of this Court's exercise of its jurisdiction.
      Even if the application is premature and this Court's opinion is advisory in nature, we have jurisdiction to issue such an opinion in the exercise of our original jurisdiction to review a proposed indebtedness. See, Application of Fun Country Development Authority, 1977 OK 138, 13, 566 P.2d 1167, wherein this Court, refusing to render an advisory opinion on a proposed indebtedness in the absence of an actual controversy, said: "Today we decline to follow these precedents on the grounds that we will issue no further advisory opinions. This is not to say, however, that this court lacks such jurisdiction."

      . Okla. Const., art. 4, § 1 (separation of powers); art. 5, § 1 (legislative authority); and art. 10 (revenue and taxation).

      . Okla. Const., art. 10, § 23, reads in pertinent part:
      The state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma.
      5.... Any department, institution or agency of the state operating on revenues derived from any law or laws which allocate the revenues thereof to such department, institution or agency shall not incur obligations in excess of the unencumbered balance of cash on hand....

      . State ex rel. Kerr v. Grand River Dam Authority, 1945 OK 9, ¶ 23, 195 Okla. 8, 154 P.2d 946, 951.

      . Boswell v. State, 1937 OK 727, 181 Okla. 435, 74 P.2d 940, 945.

      . Id. at 943.

      . We note that the paperwork in this original proceeding does not inform this Court of the projects now in progress or those that will be included in this GARVEE note issue. The Court is confident that before the proposed GARVEE notes are issued, ODOT will have rules promulgated addressing the projects in progress whose amounts will stand included in the issue.


author: WATT, C.J.

text:
    2003 OK 113
    EASTERN OKLAHOMA BUILDING & CONSTRUCTION TRADES COUNCIL, Plaintiff-Appellant, v. Ralph W. PITTS, Defendant-Appellee, Stephen L. Weese and the State of Oklahoma, Intervenors-Appellees.
    No. 99,792.
    Supreme Court of Oklahoma.
    Dec. 16, 2003.

      James Clarence Thomas, James E. Frasier and Steven R. Hickman, Frasier, Frasier & Hickman, and Gerald B. Ellis, Tulsa, OK, for Plaintiff-Appellant.
    John R. Martin, Springfield, Virginia, Karen Marie Gundy, John Edward Harper, and Frank B. Wolfe, Tulsa, OK, for Intervenor-Appellee, Stephen L. Weese.
    Stefan Kent Doughty, Assistant Attorney General, Oklahoma City, for Intervenor-Ap-pellee, State of Oklahoma.
   FACTS AND PROCEDURAL BACKGROUND

WATT, C.J.

1 1 In September 2001 the people of Oklahoma approved at a special election State Question 695, a referendum submitted to them by a Joint Resolution of the Oklahoma Legislature. Upon its approval by the people, SQ 695 immediately amended the Oklahoma Constitution by adding Art. 23, § 1A. This new provision is usually either called the "right to work law" or the "right to work amendment."

T2 In November 2001, several labor organizations and a pipeline company sued then Oklahoma Governor Frank Keating in the United States District Court for the Eastern District of Oklahoma seeking a declaration that the right to work law was unconstitutional. Later, Oklahomans for Jobs and Justice, a supporter of right to work, and three individual Oklahoma citizens, who were represented by the National Right to Work Legal Defense and Education Foundation, intervened as defendants. One of the inter-venors in the federal court action is the intervenor here, Stephen L. Weese.

3 The federal district court rejected most of the unions' claims but held that two subsections of the right to work amendment, § 1A(B)(5) and (C), were preempted as to workers covered by the National Labor Relations Act. The federal district court entered an order and final judgment on June 5, 2002, Local 514, Transport Workers of America, et al. v. Keating, et al., 212 F.Supp.2d 1319 (E.D.Okla.2002). The unions appealed to the United States Court of Appeals for the 10th Circuit, which held that in addition to the sections of the right to work amendment the federal district court had held to be preempted by federal law, § 1A(B)(1) was also preempted. The 10th Cireuit then certified questions of state law to this court, which we answered in Local 514, Transport Workers of America v. Keating, 2008 OK 110, 83 P.3d 835. Appellant here, Eastern Oklahoma Building & Construction Trades Council, filed an amicus curiae brief in this Court in which it made essentially the same arguments it presents here.

1 4 On May 13, 2003, the Council filed suit in the District Court of Tulsa County from which this appeal emanates. The Council claims that the right to work amendment is itself unconstitutional because it violates several other provisions of the Oklahoma Constitution. Both the Council and Weese filed motions for summary judgment. The parties agree that there are no disputed issues of material fact involved in this litigation and that disposition of this matter at the summary judgment stage was appropriate. As noted earlier, the trial court denied the Council's motion for summary judgment and granted Weese's motion for summary judgment.

HISTORICAL BACKGROUND

115 In 1947 congress passed § 14(b) of the Labor Management Relations Act, 29 U.S.C. § 164(b), which specifically authorized states to prohibit agreements between unions and employers requiring membership in a union as a condition of employment. Similarly, § 8 of the same Act, 29 U.S.C. § 158, provided, in effect, that a worker can't be fired for nonmembership in a union if the worker's nonmembership results from the worker's refusal to pay union dues. Later the United States Supreme Court declared that § 14(b) was constitutional in the companion cases of Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212 (1949) and A.F. of L. v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222 (1949). The court held that the Arizona, Nebraska, and North Carolina right to work laws violated neither the due process clause nor the equal protection clause of the 14th Amendment to the United States Constitution.

T6 As we noted in Local 514, 2008 OK -- ¶¶ 9-11, the various forms of collective bargaining agreements between unions and employers that require employees to pay union dues in one form or another are generally characterized as "security agreements." Lincoln Federal, 335 U.S. at 528, 69 S.Ct. at 258. The conflict over right to work laws has arisen because of the opposing attitudes toward security agreements. Right to work advocates believe that every worker should have the right to decline to pay dues to an organization whose views the worker may oppose, but unions believe that no worker should be entitled to benefit from the advantages secured by unions without having contributed to the unions' support. The cases dealing with this issue are collected and discussed in a recent A.L.R. annotation, Validity, Construction, and Application of State Right-to-Work Provisions, 105 A.L.R.5th 243, 2003 WL 132434 (2003).

DISCUSSION

T7 The Council claims that the right to work law "is unconstitutional on its face" and violates the Oklahoma Bill of Rights, Okla. Const. Art. 2, § 2 (right to life, liberty and the pursuit of happiness) and § 7 (right to due process of law). The Council also claims that the right to work law violates Okla. Const. Art. 24, § 1 (no proposed constitutional amendment submitted to the voters shall embrace more than one subject) and Okla. Const. Art. 5, § 59 (laws must have a uniform operation and "no special law shall be enacted.") We reject the Council's argument for a number of reasons.

FA

The due process and equal protection clauses of the Bill of Rights of the Oklahoma Constitution provide the same protections as those guaranteed by the 1kth Amendment to the United States Constitution.

T8 In Oklahoma Association for Eq-witable Taxation v. Oklahoma City, 1995 OK 62, 112, 901 P.2d 800, 805, we held, "The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7." We hold that the same analysis applies to the due process protections generally. Thus, the same due process protections guaranteed by the 14th amendment are also guaranteed by Art. 2, § 2

T9 As noted earlier, the U.S. Supreme Court held more than fifty years ago that right to work laws do not violate either the due process clause or the equal protection clause of the 14th Amendment. Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212 (1949) and A.F. of L. v. American Sash & Door Co., 385 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222 (1949). Here, the Council reprises arguments that have been rejected by the federal courts for many years and, indeed, were rejected by the trial court here. As the due process and equal protection provisions of the Oklahoma Constitution and the 14th Amendment guarantee the same rights, the Council has no right to relief under the Oklahoma Constitution just as other unions making similar arguments were held by the U.S. Supreme Court to have no right to relief under the federal constitution.

IL.

A constitutional amendment will prevail over provisions of the original instrument that are inconsistent with the amendment but if it appears that it was not the intent to alter or repeal a provision of the original Constitution, such provision remains in full force unaffected by the amendment.

Y10 The Council's claim "that the right to work law is unconstitutional on its face under Oklahoma's constitution" is a non sequitur under Oklahoma law. We fail to understand how an amendment to the Oklahoma Constitution could be found to violate that constitution. In Adams v. City of Hobart, 1983 OK 646 ¶ 0, 27 P.2d 595 at 595, Syllabus by the Court No. 2, we said, "The general rule is that a clause in a constitutional amendment will prevail over the provisions of the original instrument inconsistent with the amendment." Thus, how it could be said that the later passed right to work amendment is ineffective because it is inconsistent with the equal protection and due process provisions of the Constitution escapes us. But in Adams, this Court refused to hold that the people intended for the later passed amendment to repeal an earlier passed constitutional provision because,

. if on consideration of the language of the amendment, and the history and purpose of its adoption, it appears that it was not the intent to alter or repeal a provision of the original Constitution, such provision remains in full force unaffected by the amendment.

Adams, 1933 OK 646 at ¶ 24, 27 P.2d at 598. Similarly, in Initiative Petition No. 259, 1957 OK 167 ¶ 23, 316 P.2d 139 at 144, this Court held, "If the proposed amendment is amen-datory of any section of the Constitution it would, if adopted, amend any section of the Constitution in conflict therewith whether mentioned or not."

1 11 The teaching of Adams and Initiative Petition No. 259 is that if there were a conflict between the right to work amendment and other, earlier passed, provisions of the Oklahoma Constitution the more recently adopted right to work amendment would prevail. We hold, however, that there is no conflict between the right to work amendment and either Art. 2, § 2 or Art. 2, § 7 of the Bill of Rights of the Oklahoma Constitution. The Council has presented nothing to convince us other than that "it was not the intent [of the people] to alter or repeal a provision of the original Constitution." Adams, 1933 OK 646 ¶ 24, 27 P.2d at 599.

"12 The Council claims that the right to work amendment is unconstitutional as to it because this Court, and others, have held that it is unconstitutional to require lawyers to represent indigents who are accused of crimes without adequate compensation. See State v. Lynch, 1990 OK 82, 796 P.2d 1150. The Council seeks to equate its obligation to represent employees who decline to pay union dues with making a lawyer represent an indigent for less than adequate compensation. We reject the Council's argument on this score for two reasons: First, the people of the state of Oklahoma have declared through their vote to amend the Oklahoma Constitution to impose this obligation on unions. Second, as discussed above, both the United States Supreme Court and this Court have concluded that right to work laws do not deprive unions of either their rights to due process or to equal protection of the law. Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212 (1949) and A.F. of L. v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222 (1949).

IIL

The right to work amendment is not a special law prohibited by Okla. Const., Art. 5, § 59

113 Because we hold that any conflict between the right to work amendment and a provision in the original constitution would have to be resolved in favor of the more recent amendment, we could not reasonably hold that Okla. Const., Art. 5, § 59 somehow trumps the more recently passed right to work amendment. The Council contends that Art. 5, § 59 should be held to apply to constitutional provisions as well as to statutes. We disagree. Art. 5, § 59 provides:

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

Article 5 of the Constitution applies to the "Legislative Department" and the sections under this head deal with legislation. We hold, therefore, that this provision does not apply to the right to work amendment, which was a constitutional amendment proposed by the legislature and approved by the people under Okla. Const. Art. 24, § 1

114 We note that the cases cited by the Council in support of its proposition that the right to work amendment was unconstitutional because it violated Art. 5, § 59 examined the constitutionality of statutes. No case cited by the Council dealt with the issue of whether a constitutional amendment would be declared unconstitutional because it was, somehow, a special law. See, for example, Reynolds v. Porter, 1988 OK 88, 760 P.2d 816. Although the Council relies heavily on Reynolds, it is inapposite. There we held that a statute, which created a statute of limitations for medical malpractice actions shorter than the limitation period for other torts, was a special law and unconstitutional because it only applied to actions against medical professionals, not to other tortfea-sors. Here, though, the Council is attacking a provision of the Oklahoma Constitution, although the provision has been approved by the people, is already a part of the constitution, and is entitled to a presumption of validity. We are obliged to preserve the constitutionality of enactments where possible, not overturn them. Local 514, Transport Workers of America v. Keating, 2003 OK 110, at ¶¶ 15-18, 83 P.3d at 839-840. The Council has made no showing that would overcome that presumption.

IV.

The right to work amendment does not violate Okla. Const. Art. 24, § 1

115 Okla. Const. Art. 24, § 1, note 2, provides that "No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject. ..." [Emphasis added.] The Council is not attacking a proposal; instead, it is attacking a provision of the Constitution, which is entitled to the presumption of validity and which we have an obligation to uphold if we can reasonably do so. Local 514, Transport Workers of America v. Keating, 2003 OK 110, at ¶¶ 15-18, 83 P.3d at 839-840; Adams, 1933 OK 646 at ¶ 24, 27 P.2d at 598.

116 The requirement that a proposal to amend the Constitution embrace only one subject is to prevent "log rolling," that is "the combining of unrelated proposals." In re Initiative Pet. No. 363, 1996 OK 122 ¶ 15, 927 P.2d 558, 556. Here, the right to work amendment's provisions all relate to the regulation of union activity vis a vis workers employed or seeking employment in unionized workplaces. We therefore reject the Council's contention that the "one general subject" rule was violated in any event.

117 The Council makes a similar argument with respect to the ballot title, which must be rejected for the same reason. The Council's contention that the ballot title was so vague and confusing that the right to work amendment must be declared unconstitutional is inconsistent with this Courts jurisprudence. We are not assessing the clarity of a ballot title in this appeal. Instead we are determining whether an existing provision in the Oklahoma Constitution will be declared unconstitutional.

18 The Council cites In re Initiative Pet. No. 344, 1990 OK 75, 797 P.2d 326. But In re Initiative Pet. No. 244 is inapposite as it dealt with an imitiative petition, not a referendum submitted to the people by the legislature. The Council has cited no case, and we know of none, that would support a holding, after the referendum had been approved by the people, that the referendum was unconstitutional because of claimed deficiencies in the ballot title. Further, our review of the ballot title reveals nothing about it that is either confusing or misleading. Indeed, the Council's argument that the ballot title was misleading seems to stem solely from its argument that the one subject rule was violated, an argument that we have rejected.

CONCLUSION

[19 The due process and equal protection clauses of the Bill of Rights of the Oklahoma Constitution provide the same protections as those guaranteed by the 14th Amendment to the United States Constitution. Oklahoma Association for Equitable Taxation v. Oklahoma City, 1995 OK 62 ¶ 12, 901 P.2d 800. Thus, the Council has no right to relief under the Oklahoma Constitution just as other unions making similar arguments were held by the U.S. Supreme Court to have no right to relief under the federal constitution. Lincoln Federal, 335 U.S. 525, 69 S.Ct. 251, 98 L.Ed. 212 (1949) and A.F. of L. v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222 (1949).

120 A constitutional amendment will prevail over provisions of the original instrument that are inconsistent with the amendment but if it appears that it was not the intent to alter or repeal a provision of the original Constitution, such provision remains in full force unaffected by the amendment. Adams, 1988 OK 646 at ¶ 24, 27 P.2d at 598; Initiative Petition No. 259, 1957 OK 167 ¶ 23, 316 P.2d 139 at 144. The Council has presented nothing to convince us other than that "it was not the intent [of the people] to alter or repeal a provision of the original Constitution." Adams, 1983 OK 646 ¶ 24, 27 P.2d at 599.

21 The right to work amendment is not a special law prohibited by Okla. Const., Art. 5, § 59. Article 5 applies to the "Legislative Department" and the sections under this head deal with legislation. We hold, therefore, that this provision does not apply to the right to work amendment, which was a constitutional amendment proposed by the legislature and approved by the people under Okla. Const. Art. 24, § 1.

122 The right to work amendment does not violate Okla. Const. Art. 24, § 1 because that section deals with proposed amendments to the Constitution. Here, the Council is attacking a provision of the Constitution, which is entitled to the presumption of validity and which we have an obligation to uphold if we can reasonably do so. Local 514, Transport Workers of America v. Keating, 2003 OK 110, at ¶¶ 15-18, 83 P.3d at 839-840; Adams, 1933 OK 646 at 124, 27 P.2d at 598. Similarly, a referendum approved by the people under the terms of Art. 24, § 1 will not be declared unconstitutional after the fact because of claimed deficiencies in the ballot title. Further, our review of the ballot title reveals nothing about it that is either confusing or misleading.

JUDGMENT OF THE TRIAL COURT AFFIRMED.

OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, SUMMERS, WINCHESTER, JJ., concur.

BOUDREAU, J., concurs in result.

      . That amendment, Okla. Const., Art. 23, § 1A provides:
      § 1A. Participation in labor organization as condition of employment prohibited
      A. As used in this section, "labor organization" means any organization of any kind, or agency or employee representation committee or union, that exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of work, other conditions of employment, or other forms of compensation.
      B. No person shall be required, as a condition of employment or continuation of employment, to:
      1. Resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization;
      2. Become or remain a member of a labor organization;
      3. Pay any dues, fees, assessments, or other charges of any kind or amount to a labor organization;
      4. Pay to any charity or other third party, in lieu of such payments, any amount equivalent to or pro rata portion of dues, fees, assessments, or other charges regularly required of members of a labor organization; or
      5. Be recommended, approved, referred, or cleared by or through a labor organization.
      C. It shall be unlawful to deduct from the wages, earnings, or compensation of an employee any union dues, fees, assessments, or other charges to be held for, transferred to, or paid over to a labor organization unless the employee has first authorized such deduction.
      D. The provisions of this section shall apply to all employment contracts entered into after the effective date of this section and shall apply to any renewal or extension of any existing contract.
      E. Any person who directly or indirectly violates any provision of this section shall be guilty of a misdemeanor.

      . While the Oklahoma Constitution can afford rights greater than those granted by the United States Constitution; Turner v. City of Lawton, 1986 OK 51, 110, 733 P.2d 375, 378; we see nothing in the right to work amendment that deprives the Council of any right guaranteed by either Art. 2 § 2 or Art. 2 § 7 of the Oklahoma Constitution.

      . Art. 24, § 1 provides:
      Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two (2) houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds (2/3) vote of each house, shall order a special election for that purpose. If a majority of all the electors voting on any proposed amendment at such election shall vote in favor thereof, it shall thereby become a part of this Constitution.
      No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitied; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.