ATTORNEY GENERAL LOVING HAS ASKED THAT WE RESPOND TO YOUR REQUEST FOR AN OPINION ADDRESSING WHETHER THE POPULATION CLASSIFICATIONS CONTAINED IN HOUSE BILL 2257 MAKE THAT ACT SPECIAL OR LOCAL LEGISLATION IN VIOLATION OF ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION. INITIALLY, WE NOTE THAT SEVERAL PRIOR OPINIONS OF THE ATTORNEY GENERAL HAVE ADDRESSED THE RELATIONSHIP BETWEEN POPULATION CLASSIFICATIONS AND THE CONSTITUTIONAL PROHIBITION AGAINST SPECIAL LEGISLATION. SEE, E.Q., A.G. OPIN. NOS. 76-146 AND 83-132. IN ADDITION, WE OBSERVE THAT THE RESPONSE TO YOUR INQUIRY WILL BE DEPENDENT ON FACTUAL DETERMINATIONS WHICH LIE OUTSIDE THE SCOPE OF A LEGAL OPINION. FOR THESE REASONS, IT WILL BE MORE APPROPRIATE TO ANSWER YOUR QUESTION, TO THE EXTENT THAT IT IS POSSIBLE TO ANSWER YOUR QUESTION IN A LEGAL OPINION, THROUGH THIS INFORMAL LETTER.
THE PROHIBITION AGAINST SPECIAL OR LOCAL LAWS IS SET FORTH IN ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION. SECTION 46 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"THE LEGISLATURE SHALL NOT, EXCEPT AS OTHERWISE PROVIDED IN THIS CONSTITUTION, PASS ANY LOCAL OR SPECIAL LAWS AUTHORIZING:
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REGULATING THE AFFAIRS OF COUNTIES, CITIES, TOWNS, WARDS, OR SCHOOL DISTRICT(.)"
YOU INQUIRE WHETHER THE POPULATION CLASSIFICATIONS IN SECTION 2 OF HOUSE BILL 2257, TO BE CODIFIED AT 19 O.S. 8.2 OF TITLE 19 OF THE OKLAHOMA STATUTES, VIOLATES THE FOREGOING CONSTITUTIONAL PROHIBITION. THE CLASSIFICATIONS SERVE TO MAKE THE PROVISIONS OF H.B. 2257 APPLICABLE TO ONLY CERTAIN COUNTIES OF THE STATE. THE TEXT OF SECTION 2 PROVIDES THAT:
"ANY COUNTY IN THIS STATE WITH A POPULATION OF LESS THAN 550,000, ACCORDING TO THE LATEST FEDERAL DECENNIAL CENSUS, WHICH CONTAINS A METROPOLITAN AREA WITH A POPULATION OF 250,000 OR MORE, ACCORDING TO THE LATEST FEDERAL DECENNIAL CENSUS, MAY ADOPT OR AMEND A COUNTY HOME-RULE CHARTER FOR COUNTY GOVERNMENT WHICH SPECIFIES THOSE POWERS APPROPRIATE FOR SAID GOVERNMENT AND WHICH ARE NOT INCONSISTENT WITH THE OKLAHOMA CONSTITUTION AND LAWS OF THIS STATE."
WE BEGIN OUR DISCUSSION BY RECOGNIZING THE GENERAL RULE THAT STATUTES ARE PRESUMED TO BE CONSTITUTIONAL UNLESS THERE IS A CLEAR SHOWING TO THE CONTRARY. SEE, E.A., ELIAS V. CITY OF TULSA, 408 P.2D 517 (OKLA. 1965). BUT BEYOND THIS THRESHOLD PRESUMPTION, WE POINT OUT THAT OKLAHOMA COURTS, IN EVALUATING WHETHER POPULATION CLASSIFICATIONS SUCH AS THE ONES EMBODIED IN SECTION 2 VIOLATE THE PROHIBITION AGAINST SPECIAL LEGISLATION, EMPLOY A TWO-TIER ANALYSIS.
FIRST, A COURT WILL EXAMINE A POPULATION CLASSIFICATION ON ITS FACE, AS A MATTER OF LAW. IF THE COURT FINDS THAT THE POPULATION CLASSIFICATION IS CLOSED AND IS NOT PROSPECTIVE IN ITS PROVISIONS, THE COURT WILL DECLARE THE ACT CONTAINING IT UNCONSTITUTIONAL AS SPECIAL LEGISLATION. IF, ON THE OTHER HAND, THE CLASSIFICATION IS OPEN-ENDED, A COURT WILL PRESUME THAT THE CLASSIFICATION IS FACIALLY CONSTITUTIONAL. SEE IN RE: BUCHER, 20 P.2D 150 (OKLA. 1933); A.G. OPIN. NO. 83-132.
APPLYING THIS FIRST TEST TO S 2 OF H.B. 2257, WE NOTE THAT THE PROVISION DEFINES THE POPULATION CLASSIFICATIONS IN TERMS OF THE "LATEST FEDERAL DECENNIAL CENSUS." THIS DEFINITION MAKES THE CLASS