Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, 66522

• Decision Date: 20 September 1988
• Docket Number: No. 66522,66522
• Citation: 769 P.2d 1302,1988 OK 99
• Parties: William M. ALLEN, for himself and all other persons of the class who are similarly situated, Plaintiffs-Appellees, v. STATE of Oklahoma ex rel. BOARD OF TRUSTEES OF the OKLAHOMA UNIFORM RETIREMENT SYSTEM FOR JUSTICES AND JUDGES; Richard A. Ward, J.I.M. Caldwell, Gerald Grimes, J.L. Merrill, Hamp Baker, Leo Winters, and Robert Fulton, as Members of the Board of Trustees of the Oklahoma Uniform Retirement System for Justices and Judges, Defendants-Appellants.
• Court: Oklahoma Supreme Court

Page 1302

769 P.2d 1302

1988 OK 99

William M. ALLEN, for himself and all other persons of the class who are similarly situated, Plaintiffs-Appellees, v. STATE of Oklahoma ex rel. BOARD OF TRUSTEES OF the OKLAHOMA UNIFORM RETIREMENT SYSTEM FOR JUSTICES AND JUDGES; Richard A. Ward, J.I.M. Caldwell, Gerald Grimes, J.L. Merrill, Hamp Baker, Leo Winters, and Robert Fulton, as Members of the Board of Trustees of the Oklahoma Uniform Retirement System for Justices and Judges, Defendants-Appellants.

No. 66522.

Supreme Court of Oklahoma.

Sept. 20, 1988.

On Appeal from the District Court, Oklahoma County; Raymond Naifeh, judge.

In an action to review a decision by the Board of Trustees [Board] of the Oklahoma Public Employees Retirement System (the board that administers the Uniform Retirement System for Justices and Judges) which denied the claimant's request for military service credit toward his judicial retirement benefits and concluded that 72 O.S. 1981 § 67.13a is unconstitutional, the trial court certified as a class all affected judges and their survivors, denied certification for the other state retirement systems, gave summary judgment to the claimant but declined to assess counsel fees against the Board; instead, it ordered that counsel fee and costs be paid out of the pension funds the class members recovered in the judgment.

Michael C. Turpen, Atty. Gen., Ned Bastow, Asst. Atty. Gen. Oklahoma City, for defendants-appellants.

Tom R. Cornish, and Thomas P. Goresen, Messrs. Edwards, Roberts & Propester, Oklahoma City, for plaintiffs-appellees.

OPALA, Justice.

The issues presented for decision are: Do the terms of 72 O.S. 1981 § 67.13a, ¹ which allowed members of the Oklahoma Uniform Retirement System for Justices and Judges [URSJJ] credit for military service, violate Art. 5, § 57, Okl.Const., ² because the title of the act is defective? Did the trial court err in requiring that the retirement benefits of the class members who failed to apply for military service credit be recalculated from the date of each member's retirement? and Is an appeal-related attorney's fee recoverable against the State? We answer all three questions in the negative.

The Legislature amended 72 O.S. 1971 § 67.13a (as last amended by Okl.Sess.L.1978 Ch. 1), effective June 29, 1981, ³ to allow military service credit for war veterans or disabled military retirees who are members of any state retirement system (including URSJJ). ⁴ The 1981 act was carried into the official 1981 decennial edition of the Oklahoma statutes [known as "Oklahoma Statutes 1981"] by the recompilation's adoption on June 2, 1982. ⁵ The Attorney General on November 16, 1981 opined that because the provisions added to § 67.13a were not clearly encompassed within the title of the 1981 act, ⁶ § 67.13 violated Art. 5, § 57 of the Oklahoma Constitution. ⁷

Judge William M. Allen [claimant] requested on August 10, 1984 that he be given credit for active military service as provided by 72 O.S. 1981 § 67.13a. Relying on the November 16, 1981 Attorney General's opinion, the executive director of the Oklahoma Public Employees Retirement System [OPERS] denied the request. In an administrative hearing held later, the OPERS Board of Trustees [Board] ⁸ decided that 72 O.S. 1981 § 67.13a violated Art. 5, § 57, Okl. Const. The claimant's application for military service credit was hence denied.

The claimant appealed from the Board's decision to the district court. He sought (a) reversal of the Board's decision, (b) a writ compelling the Board to allow credit for military service, (c) a declaration that § 67.13a is free from constitutional infirmity and (d) certification of his suit as a class action. The trial court certified as a class all the adversely affected judges and their survivors ⁹ but specifically excluded members of other state retirement systems; it gave summary judgment to the claimant, finding that 72 O.S. 1981 § 67.13a was a "valid and Constitutional expression of the Legislature's intent to award military service credit to those war veterans who are members of the Plaintiff class." The court rejected as meritless the Board's constitutional challenge that the statute was tainted by a defective title. The district court directed the Board to give military service credit to class members who retired on or after June 29, 1981--the operative date of the act in contest. The class was given a six-month period beginning with the date of judgment to apply for military service credit. The court declined to assess counsel fees against the Board; instead, it ordered that a counsel fee of $50,000, as well as costs, be paid from the pension funds the class members recovered in the judgment. ¹⁰

The Board brings this appeal, asserting that (1) 72 O.S. 1981 § 67.13a is constitutionally infirm because the Act's title is defective, and (2) if § 67.13a is constitutional, those who retired before September 20, 1984, the date the Board denied the claimant's application, should not be permitted to claim added benefits for military service credit for the period between their retirement and the date the claimant's application was denied. We affirm the trial court's judgment.

The claimant seeks to incorporate into the appellate record material not presented to the trial court. ¹¹ After summary judgment a party cannot enlarge the appellate record by adding new facts or evidentiary material. ¹² Because the material sought to be included was not presented to the trial court, it cannot now be incorporated for this court's consideration on appeal.

I

SECTION 67.13a

IS FREE OF CONSTITUTIONAL INFIRMITY

The Board argues that 72 O.S. 1981 § 67.13a violates Art. 5, § 57, Okl. Const., ¹³ because the act's title did not embrace the subject of the amendment--the allowance of credit for prior military service in state retirement systems. ¹⁴

Under the constitutional mandate of Art. 5, § 43, Okl. Const., ¹⁵ the Legislature must revise Oklahoma laws every ten years. If the substance of the revision is not otherwise prohibited by the Constitution the revision will stand as authorized. ¹⁶ A statute's incorporation in a decennial compilation purges or cures any defect present in that enactment's title. ¹⁷ By relation back the incorporation gives the statute validity from the date of the original enactment in a flawed form. ¹⁸

Section 67.13a's 1981 amendment in contest here became operative June 29, 1981. It was later incorporated into Oklahoma Statutes 1981 when that decennial recompilation was adopted by the Legislature on June 2, 1982. ¹⁹ The section's inclusion in the 1981 recompilation cured any defects in the title and operated as a continuation of the 1981 enactment rather than as a new enactment of 1982. In short, the 1982 inclusion of the 1981 act in the 1981 decennial recompilation purged it of the infirmity and the cure operated by relation back from the date of the original enactment. ²⁰

The Board alludes to legislative history of § 67.13a's passage and urges that it mandates the section's invalidation. Our attention is directed to various bills introduced over a six-year period--from 1979 to 1985--whose titles reveal that military service credit was to be added to URSJJ benefits. These bills, which were never enacted, are: (1) 1979--HB 1181 (to amend 20 O.S. 1971 § 1102A, a URSJJ statute, by allowing credit for service as a war veteran); (2) 1981--S.B. 121 (which would add "armed forces service to retirement credit" for workers' compensation judges); (3) 1982--HB 1572 (to amend 74 O.S. 1981 § 902 to provide credit for certain military service in retirement systems of the state, including the URSJJ); (4) 1983--SB 75 (relating to the URSJJ and providing credit for certain military service) and (5) 1985--SB 4 (providing retirement credit for certain military service, by enacting 20 O.S. Supp.1985 § 1102C). ²¹

Bills that fall short of passage, much like the testimony of individual lawmakers, are never probative of legislative intent. A legislature's failure to express its will through enacted law constitutes its official silence. No intent may be divined from a lawmaking body's silence. ²² Equally unavailing here is the attempt to sap efficacy from § 67.13a by pointing to post-1978 efforts to pass identical legislation. Enacted law is neither repealed nor diminished in its force by the passage or rejection of an act that would be duplicative of a statute already "on the books". ²³

II THE PROPER DATE FOR THE CALCULATION OF BENEFITS

The Board argues that if § 67.13a be constitutional, the class members who retired before the Board's September 20, 1984 denial of the claimant's application but did not apply for military service credit should not be permitted to claim the added benefits for the period between their retirement and the date of the application's denial. The Board asserts that credit for prior service is only available after a written application is filed with the Board as required by 74 O.S. Supp.1986 § 913(1)(a). ²⁴ If these statutory procedures are not enforced, the Board urges, the principle that administrative remedies must be exhausted before court jurisdiction over a claim may be invoked would be offended. We are not persuaded by the Board's argument.

As a general rule, exhaustion of administrative remedies is a prerequisite for resort to the courts, but remedies that are ineffective or unavailable need not be exhausted. ²⁵ Once benefits to the claimant were denied, based on the Attorney General's November 16, 1981 opinion, there was no longer an effective or available administrative remedy for eligible URSJJ members to pursue to secure the inclusion of military service credit in their retirement pay. The claimant and the affected class then sought a declaration of § 67.13a's validity in the district court. The Administrative Procedures Act specifically authorizes a district court declaratory judgment suit ²⁶ to test the validity of an agency rule. ²⁷

In...