Date: 07-20-2005

Case Style: City of Enid v. Public Employees Relations Board

Case Number: 2005 OK 55

Judge: Taylor

Court: Oklahoma Supreme Court on appeal from the District Court of Oklahoma County

Plaintiff's Attorney:

Tony G. Puckett, Ronald T. Shinn, Jr., McAfee & Taft, Oklahoma City, for appellee, City of Enid. W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Rinehart, Senior Assistant Attorney General, Oklahoma City, for co-appellant, Public Employees Relations Board.

Defendant's Attorney:

James R. Moore, Sue Wycoff, James R. Moore & Associates, Oklahoma City, for appellant, American Federation of State, County and Municipal Employees.

Description:

1 The dispositive question presented in this appeal is whether the Oklahoma Municipal Employee Collective Bargaining Act is a special law prohibited by the Okla. Const., art. 5, § 46. We answer the question in the affirmative. We find the Oklahoma Municipal Employee Collective Bargaining Act is unconstitutional.

I. Background

2 The Oklahoma Legislature passed the Oklahoma Municipal Employee Collective Bargaining Act (the Act)1 during its 2004 session. The Act grants qualifying municipal employees2 the right to organize and choose representation for the purpose of collective bargaining3 and requires municipal employers to recognize, negotiate and bargain with employee representatives.4 It defines municipal employers to be those municipalities5 with populations greater than 35,000.6 The Act provides that it shall be administered by the Public Employees Relations Board (PERB).7

3 Although an express purpose of the Act is "to promote orderly and constructive employment relations between municipal employers and their employees,"8 the parties agree that the Act presently applies to only eleven municipalities in Oklahoma. They are incorporated cities that have populations greater than 35,000: Broken Arrow, Edmond, Enid, Lawton, Midwest City, Moore, Muskogee, Norman, Oklahoma City, Stillwater, and Tulsa.9 The promotion of "orderly and constructive labor relations" promised by the Act is granted to only this small number of Oklahoma cities.

4 When the Act became effective on November 1, 2004, the American Federation of State, County, and Municipal Employees a/k/a AFSCME OK Organizing Committee (Union) requested certification from PERB to represent the City of Enid's qualifying employees. On November 4, 2004, PERB gave notice of Union's request to the City of Enid and directed the City to post the notice. Under PERB's emergency rules, PERB must certify Union as the Enid municipal employees' representative unless PERB receives a request from a rival union within fifteen days.

5 On November 19, 2004, the City of Enid filed an action against PERB and Union seeking a temporary restraining order, temporary and permanent injunctions, and declaratory judgment that the Act is special legislation contrary to the Oklahoma Constitution, art. 5, §§ 46 and 59 and art. 18, § 3(a). PERB and Union responded, urging that the district court not hastily decide the constitutional issues in a temporary injunction hearing. At the hearing on November 22, 2004, the district court granted a temporary restraining order and set a briefing schedule. Thereafter, the City of Enid filed its motion for summary judgment.

6 On summary judgment, the district court determined that the classification of municipalities with populations greater than 35,000 is arbitrary and discriminates against employees of municipalities with populations less than 35,000 and that the Act is a special law that cannot stand because it is not impossible to design a general law. The district court decided the Act is contrary to the Okla. Const., art. 5, §§ 46 and 59 and issued a permanent injunction against PERB. Union timely filed a petition in error and PERB filed a petition in error as co-appellant in Union's appeal. We retained the appeal. The parties presented oral arguments to the Court en banc on May 10, 2005.

II. Standard of Review

7 The issues presented for review are legal questions which we review de novo. Gladstone v. Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, 5, 66 P.3d 442, 445. Our de novo review is plenary, independent and non-deferential. Id.

III. Arguments of the Parties

8 The essence of the City of Enid's constitutional argument is that defining municipal employers to include only municipalities with populations greater than 35,000 creates a class of municipal employers and municipal employees that has no reasonable relation to the subject of the Act contrary to the Okla. Const., art. 5, § 59 and makes the Act a special law contrary to the Okla. Const., art. 5, § 46. The City also argues that the Act is unconstitutional under Okla. Const., art. 18, § 3(a) and the home-rule doctrine. The City urges that the Act in its entirety be declared unconstitutional and void and the permanent injunction be affirmed.

9 PERB argues that the 35,000-population restriction creates a class of similarly-situated, larger municipalities across the state which bears a reasonable relationship to the subject of the Act and that the Act is general in nature because it applies statewide to all municipalities in the class consistent with the Okla. Const., art. 5, §§ 46 and 59. Union also argues the Act reasonably classifies larger cities across the state that share similar circumstances of complex, multi-tiered organizations and the classification is rationally related to the purpose of the Act to promote orderly relations between municipal employers and their employees who are further removed from city management in larger cities and thus have a greater need to speak collectively to city management about the workplace. They urge that in the event the 35,000-population restriction is declared unconstitutional, the void provision be severed and the remainder of the Act be upheld.

IV. Oklahoma Constitution, art. 5, § 46

10 Every statute is presumed to be constitutional, Reynolds v. Porter, 1988 OK 88, 15, 760 P.2d 816, 819, and we approach a constitutional attack on a statute with great caution and grave responsibility. Way v. Grand Lake Ass'n, Inc., 1981 OK 70, 39, 635 P.2d 1010, 1017. In considering the constitutional arguments presented, we are guided by the following general principles. The Legislature is sovereign and the legislative power has no limitations except by specific declarations in the state and federal constitutions. Id. Constitutional restrictions on the Legislature will be strictly construed. Id. The law presumes that the Legislature carefully observed the requirements of the constitutions in enacting the statutes. Id. A statute will be upheld against a constitutional attack unless it is clearly and overtly inconsistent with the constitutions. Id.

11 The Oklahoma Constitution, art. 5, § 46, provides in pertinent part:

The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

. . .

Regulating the affairs of counties, cities, towns, wards, or school districts; . . . .

(Bold added.)

12 This constitutional provision is designed to prevent legislators from interfering with local management by passing laws that single out some localities but leave others unaffected by the law. Bradford v. Cole, 1923 OK 571,12, 217 P. 470, 471-472. Section 46 specifically prohibits the Legislature from enacting special laws dealing with twenty-eight subject areas. Reynolds v. Porter, 1988 OK 88, 17, 760 P.2d 816, 822. One of those twenty-eight subject areas is "regulating the affairs . . . of cities" within which the Act squarely falls.

13 This Court has determined that the phrase "regulating the affairs" as used in art. 5, § 46 refers to any law that touches upon matters of the political subdivision and affect the people of the political subdivision. Bradford v. Cole, at5-6, 217 P. at 471. The Legislature has defined "city" to mean "a municipality which has incorporated as a city in accordance with the laws of this state".10 Under these definitions, a law that affects the people of a city by granting the privilege of collective bargaining to municipal employees and requiring the municipal employer to bargain with the employees' representative certainly touches upon city affairs. Clearly, the Act touches upon matters of a city that affect the people of the city. No other application can be had if we, as we must, apply the phrase "regulating the affairs of cities" to carry out the principle embodied in the constitutional provision. See Welch v. Holland, 1936 OK 598, 61 P.2d 559. No special state law may regulate the affairs of cities.

14 The Oklahoma Constitution, art. 5, § 46 prohibits the Legislature from enacting special laws that regulate the affairs of cities, although it may do so by general law. A general law is one that applies equally to all persons, things or entities embraced in a class founded on some natural, intrinsic or constitutional distinction, while a special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject of the law. Roberts v. Ledgerwood, 1928 OK 723,0, 272 P. 448, Syllabus by the Court; Oklahoma City v. Griffin, 1965 OK 76, 8, 403 P.2d 463, 465. It is argued that the Act is a general law because larger cities are on a different footing than smaller cities for purposes of collective bargaining. This argument, however, fails to recognize that art. 5, § 46 specifies "cities" as a distinct class of entities.

15 The Oklahoma Constitution, art. 5, § 46, requires any statute "regulating the affairs of cities" to be general in nature - to apply equally to "cities". So as not to be a special law proscribed by art. 5, § 46, a statute regulating the affairs of cities, must embrace all cities in the state rather than embracing only a subclass of larger cities. This is the only meaningful application of art. 5, § 46. Any other application would allow the Legislature to regulate the affairs of some cities but not all cities, rendering the provision meaningless.

16 Although there are more than 150 cities in Oklahoma according to recent U.S. Census information in the appellate record,11 the Oklahoma Municipal Employee Collective Bargaining Act confers the right of collective bargaining on municipal employees of a distinct subclass of eleven cities.12 By creating an artificial class of municipalities that have populations greater than 35,000, the Act carves a niche of municipal employees and grants them the right to bargain collectively with their respective municipal employers. The employees of this small class of eleven cities are employed in substantially the same or similar positions as many municipal employees of other mid-size and small cities all over the state working in sanitation, utilities, parks, and other public and private municipal endeavors. To avoid the special treatment of a special law, the privilege of collective bargaining must be extended to employees of all the cities throughout the state if it is extended to any.13 This Court said much the same in Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, 13, 714 P.2d 198, 204, when we concluded that "[d]iscrimination between teachers employed by school districts based solely on population offends art. 5 § 46." (Bold added.)

17 We are cognizant of the breadth of the Legislature's sovereign power. However, the prohibition unambiguously proclaimed in the Okla. Const., art. 5, § 46 operates to limit the sovereign Legislature. The Oklahoma Constitution, art. 5, § 46 is an absolute and unequivocal prohibition against special legislation in the listed subject areas, Reynolds at 21, 760 P.2d at 824, such as the Oklahoma Municipal Employee Collective Bargaining Act, regulating the affairs of some but not all cities. Under the strictest application of art. 5, § 46, the Act clearly and overtly violates that constitutional provision. We hold the language "with a population greater than thirty-five thousand (35,000) persons" in the definition of "municipal employer" in 11 O.S.Supp.2004, § 51-202(12) offends the Okla. Const., art. 5, § 46. This is the dispositive issue. The Act, limiting its application to cities over 35,000 in population, is unconstitutional.

V. Oklahoma Constitution, art. 5, § 59

18 The parties presented substantial arguments under the Okla. Const., art. 5, § 59. Although we have ruled on the dispositive issue and hold the Act invalid under art. 5, § 46, we briefly address the requirements of Okla. Const., art. 5, § 59, which states:

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.

19 This constitutional provision permits the Legislature to pass special laws only when the subject and purpose of the legislation cannot be dealt with by general law. Reynolds v. Porter, 1988 OK 88, 16, 760 P.2d 816, 822, recognized that the bench and bar have confused the requirements of art. 5, §§ 46 and 59 when a statute is attacked under both sections. Reynolds involved a statute of limitations, one of the subject areas listed in art. 5., § 46, that applied only to medical malpractice actions. As in this case, the statute was challenged under art. 5, §§ 46 and 59. Reynolds concluded the statute of limitation was a special law contrary to art. 5, § 46 because it applied only in medical malpractice actions and did not apply in all common-law tort actions.

20 Reynolds enunciated a three-prong inquiry to determine if a special law is valid under art. 5, § 59. Id., at13, 760 P.2d at 822. The inquiry starts by identifying the class affected by the statute. If the class includes all persons, things or entities naturally related, it is a general law, Jack v. State, 1937 OK 394, 7, 82 P.2d 1033, 1035; but if not, it is a special law and the inquiry continues to the second prong to determine if the statute can be made applicable to the whole class; and if not, the inquiry continues to the third prong to determine whether the subclass is rationally related to the subject of the statute.

21 Reynolds said that if the statute relates to one of the twenty-eight subject areas listed in art. 5, § 46, our inquiry stops with the first prong of the art. 5, § 59 analysis. The first prong determines if the law is general or special. If it is a general law, then it is valid under art. 5, § 46. If it is a special law, as in Reynolds and in this case, it is prohibited because the constitutional framers predetermined that legislation on the twenty-eight subject areas listed in § 46 must always be by general law. Id. at 17, 760 P.2d at 822-823.

22 We recognize that under art. 5, § 59, a classification is reasonable if the distinction of the persons, entities or things has a sound and rational relation to the subject of the legislation. Sheldon v. Grand River Dam Authority, 1938 OK 76, 15, 76 P.2d 355, 360. See also Hudgins v. Foster, 1928 OK 243, 30, 267 P. 645, 649 (striking down a statute abolishing township offices in forty-nine counties but not the remaining twenty-eight counties for lack of good reason under art. 5, § 59); Elias v. City of Tulsa, 1965 OK 164, 9-10 and 20, 408 P.2d 517, 519-520 (striking down a statute providing for city-county cooperative planning commission with population limits to fit Tulsa only as arbitrary and a subterfuge under art. 5, § 59).

23 In its written and oral arguments, Union contends that the Act in this case is a general law because the 35,000-population restriction creates a reasonable class of cities that is rationally related to the objectives of the Act. Union urges that we follow the analysis in Hamilton v. Oklahoma City, 1974 OK 109, 527 P.2d 14.

24 In Hamilton, Oklahoma City argued that the governmental tort liability act was contrary to the Okla. Const., art. 5, § 46 because it applied to only Oklahoma City and Tulsa. Hamilton did not determine whether the waiver of sovereign immunity falls within one of the twenty-eight subject areas in art. 5, § 46. Rather, Hamilton considered whether cities with populations over 200,00 is a sufficiently distinctive classification for purposes of governmental tort liability. Hamilton engaged in an analysis that is appropriate under art. 5, § 59. Hamilton relied upon case law that turned on art.5, § 59 analysis.14 Those cases did not analyze the requirements of art. 5, § 46. Concluding that the "classification is not unreasonable and does not contravene the Constitution of Oklahoma", Hamilton did not recognize any distinction between art. 5, § 46 and art. 5, § 59. Id. at 18, 527 P.2d at 17.

25 Hamilton is one of those cases which has contributed to the confusion of the requirements of these two constitutional sections as recognized in Reynolds. Reynolds examined the differences between the requirements of art. 5, § 46 and art. 5, § 59. We find Reynolds, rather than Hamilton, to be instructive on the requirements of these two different constitutional provisions.

26 Reynolds provides a clear and decisive analysis of art. 5, § 46. Reynolds explained that art. 5, § 46 is an absolute prohibition against creating subclasses in the subject areas listed in that section and that the rational-relation test required under art. 5, § 59 is not applicable in art. 5, § 46 analysis. Id. at 17and 21, 760 P.2d at 822, 823. Under Reynolds, a law regulating the affairs of some but not all cities in this state is contrary to art. 5, § 46 even if the subclass may be permissible under art. 5, § 59 analysis .

27 Even before Reynolds, this Court recognized that the Legislature is prohibited from creating subclasses for the subject areas listed in art. 5, § 46. Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, 13, 714 P.2d 198, 204 said:

Discrimination between teachers employed by school districts based solely on population offends art. 5 § 46. It is a well-accepted rule of statutory construction that a presumption of constitutionality must be applied. If a statute is susceptible of two constructions, one which will uphold the Act and its constitutionality, while the other will strike it down, it is our duty to apply the former course. Therefore, to give effect to the intent of the legislature we must use the procedures outlined for the school districts of 35,000 or more, and apply it to the school districts with less than that number.

(Bold added and footnotes omitted).

28 After Reynolds, we again recognized that the Legislature is prohibited from creating subclasses for the subject areas listed in art. 5, § 46. Grimes v. Oklahoma City, 2002 OK 47, 10, 49 P.3d 719, 724, found that the challenged statute did not violate art. 5, § 46 because it did not separate municipalities for different treatment and thus it was a general law. Citing Reynolds, Grimes found it unnecessary to analyze the statute under art. 5, § 59.

29 We have already determined that the Act in this case is a special law attempting to regulate the affairs of some cities but not all cities contrary to art. 5, § 46. Analysis under art. 5, § 59 is unnecessary and any such analysis would only contribute to the existing confusion of the separate requirements of each of these two constitutional provisions.

30 We note that Union surveyed numerous statutes containing population-based classifications and warned that this case may affect all those statutes. This warning is unfounded because each statutory classification challenged under either art. 5, § 46 or art. 5, § 59 must be considered in light of the subject of the particular statute.

VI. The Home-rule Doctrine

31 The City of Enid challenged the Act as contrary to the Okla. Const., art. 18, § 3(a) and the home-rule doctrine. Although the district court did not rule on this constitutional issue, the parties presented argument on the home-rule doctrine in their briefs filed in this Court.15 Without addressing a constitutional issue not ruled on below, we note that more than a quarter of a century ago, this Court put to rest a similar challenge to the firefighters and police officers arbitration statutes. Midwest City v. Cravens, 1975 OK 22, 35, 532 P.2d 829, 834, concluded that "the privilege of communicating with their respective employers with a collective voice involves a matter of state-wide concern and the Act authorizing them [firefighters and police officers] to speak through a collective voice supersedes any charter provisions to the contrary." City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, 845 P.2d 872; City of Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604. If the Act had been couched as a statewide concern applying to every city, the home-rule doctrine would not have prevented it. But the Act applies to only a very few cities, and therefore it is unconstitutional. The home-rule doctrine is not a dispositive issue.

VII. Severability

32 PERB and Union request that we save the Act by severing the 35,000-population restriction in the definition of "municipal employer" if we decide it causes a constitutional infirmity. The City of Enid suggests that the 35,000-population restriction was the compromise that garnered the votes to pass the legislation. It opposes severability.

33 A strong preference for severability is entrenched in our law. There is a statutory presumption that the provisions of an act are severable. 75 O.S.2001, § 11a. A principle goal of judicial rules of statutory construction is to save and to not destroy, and severability allows the non-offending language of an act to be saved. See Ethics Commission of State of Oklahoma v. Cullison, 1993 OK 37, 850 P.2d 1069. The offending language will be severed if it is apparent that the Legislature would have enacted the law without it and the non-offending language is capable of standing alone. In re Application of the Oklahoma Dep. of Trans., 2002 OK 74, 27, 64 P.3d 546, 553.

34 In Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, 714 P.2d 198, this Court severed a 35,000-population restriction that offended art. 5, § 46. In Maule, the school district collective bargaining statutes provided a means for determining labor unions' competing claims of representation in school districts with 35,000 or more average daily attendance (ADA). The defendant school district had less than 35,000 ADA but was faced with competing union claims of representation. Maule determined that the 35,000-ADA restriction was "an entirely arbitrary norm" and "would result in an unreasonable application of a special law" in violation of the Okla. Const., art 5, § 46. Id. at 12, 714 P.2d at 203-204. Concluding that the Legislature may not deal with any phase of public school administration except by a statute which has general statewide application, Maule implicitly severed the 35,000 ADA provision.

35 The collective bargaining act in Maule applied to all school districts. This Court severed the offending language to preserve the legislative intent to allow collective bargaining in every school district in the state. The 35,000-ADA restriction in Maule was a part of a provision for a narrow and incidental procedure that could be extended to all school districts in order to preserve legislative intent.

36 In this case, unlike in Maule, the 35,000-population restriction triggers application of the Act to a municipality. The only legislative intent to be gleaned from the Act in this case is that the Legislature intended to authorize collective bargaining only in municipalities with 35,000 or more inhabitants. The whole Act hinges on the constitutionally-offensive 35,000-population restriction. We absolutely cannot find it is apparent that the Legislature would have passed the Act without the 35,000-population restriction.

37 We have refused to sever constitutionally-offensive language when it is apparent that the Legislature would not have enacted the statute without the invalid parts, Englebrecht v. Day, 1949 OK 154, 208 P.2d 538, or the offending language is an integral and significant portion of the whole, Tulsa Expo. & Fair v. Bd. of County Commissioners, 1970 OK 67, 13, 468 P.2d 501, 507. In this case, the offensive language is a significant and integral part of the Act.

38 We cannot sever the constitutionally-offensive phrase "with a population greater than thirty-five thousand (35,000) persons" from the definition of municipal employer. To do so would extend the right of collective bargaining to the employees of every city and town in Oklahoma when the Legislature clearly did not intend that result. To do so would rewrite the Act. We do not sit as a super legislature. See City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, 23, 886 P.2d 485, 495. We will not rewrite this Act, especially to a result not intended by the Legislature. We hold the Oklahoma Municipal Employee Collective Bargaining Act, 11 O.S.Supp.2004, §§ 51-200 - 51-220, to be unconstitutional in its entirety.

VIII. Conclusion

39 The Oklahoma Municipal Employee Collective Bargaining Act grants the privilege of collective bargaining to eligible employees of municipalities with populations greater than 35,000. The Act does not apply to all cities in the state and therefore it is a special law. The Act is subject to the provisions of the Okla. Const., art. 5, § 46 prohibiting special laws regulating affairs of cities. The language "with a population greater than thirty-five thousand (35,000) persons in the definition of "municipal employer" in 11 O.S.Supp.2004, § 51-202(12) offends the Okla. Const., art. 5, § 46. The constitutionally-offensive language is an integral part of the Act and cannot be severed. The Oklahoma Municipal Employee Collective Bargaining Act is a special law prohibited by the Okla. Const., art. 5, § 46 and unconstitutional unless the Legislature removes the constitutionally-offensive language.

* * *

Outcome: ¶39 The Oklahoma Municipal Employee Collective Bargaining Act grants the privilege of collective bargaining to eligible employees of municipalities with populations greater than 35,000. The Act does not apply to all cities in the state and therefore it is a special law. The Act is subject to the provisions of the Okla. Const., art. 5, § 46 prohibiting special laws regulating affairs of cities. The language "with a population greater than thirty-five thousand (35,000) persons in the definition of "municipal employer" in 11 O.S.Supp.2004, § 51-202(12) offends the Okla. Const., art. 5, § 46. The constitutionally-offensive language is an integral part of the Act and cannot be severed. The Oklahoma Municipal Employee Collective Bargaining Act is a special law prohibited by the Okla. Const., art. 5, § 46 and unconstitutional unless the Legislature removes the constitutionally-offensive language.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: Editor's Note: This decision was dated July 5, 2005.