Bailey v. State ex rel. Bd. of Tests for Alcohol & Drug Influence
| Decision Date | 24 May 2022 |
| Docket Number | 118,532 |
| Parties | Courtney BAILEY, Kenneth Baxter, Oscar Bernal, Kevin Buckmaster, Ezequiel Cardenas-Mekia, Benjamin Clements, Chance Gimlin, Alex Hill, Melanie Hunter, Lannette Jorday, Corbin Lacey, Colton Lientz, Trevor McFarland, Johnny Needham, Amber Osei, Regin Prem-Amand, Donald Riley, Darin Seebeck, Kala van Kirk, and Austin Vasicek, Plaintiffs/Appellees, v. STATE of Oklahoma, EX REL., BOARD OF TESTS FOR ALCOHOL AND DRUG INFLUENCE, and Kevin Behrens, and State of Oklahoma, ex rel. Department of Public Safety, Rusty Rhoades, Commissioner, Defendants/Appellants. |
| Court | Oklahoma Supreme Court |
Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendants/Appellants.
Brian K. Morton, Oklahoma City, Oklahoma, for Plaintiffs/Appellees.
¶1 The issue before us is whether the evidence was sufficient to show a prima facie case that an official committed a willful violation of the Open Meeting Act when he did not send a notice of a special meeting to the Secretary of State. We hold the evidence was insufficient to show a prima facie willful violation of a statute.1 The evidence showed a single event of an official's forgetfulness and omission when he sent an email notice to many individuals and failed to include the Secretary of State's address on the email, and additional evidence showed this omission was not a willful violation of the Act. We reverse the judgment of the District Court which found a violation of the Open Meeting Act by Oklahoma Board of Tests for Alcohol and Drug Influence. The District Court concluded this Board's emergency rules were invalid based upon the District Court's finding a violation of the Open Meeting Act, and that conclusion is also reversed.
¶2 Plaintiffs' petition in the District Court invoked a statute authorizing a declaratory judgment ( 12 O.S. § 1651 ), and two statutes in the Oklahoma Administrative Procedures Act ( 75 O.S. §§ 253, 306 ). The petition alleged the Oklahoma Department of Public Safety "would seek to admit the breath test results against Plaintiffs in implied consent driver's license revocations actions, based upon emergency rules promulgated by the BOT [Oklahoma Board of Tests for Alcohol and Drug Influence] ... [and] application of these emergency rules threatens to impair Plaintiffs' driving privileges." Plaintiffs alleged they "have timely filed appeals of these revocations in District Courts throughout the state." Plaintiffs challenged rules governing alcohol testing equipment and procedure that were previously adopted by the Oklahoma Board of Tests for Alcohol and Drug Influence (the Board).
¶3 The challenged rules were adopted in response to a decision by the Court of Civil Appeals. In Sample v. State ex rel. Department of Public Safety , 2016 OK CIV APP 62, 382 P.3d 505, the Court of Civil Appeals affirmed a trial court's judgment which determined the Department of Public Safety (DPS) improperly revoked a driver's license. The DPS revocation was based upon alcohol breath test procedure and equipment which was approved by the Board, but the form of the Board's approval was not by promulgated administrative rules. Sample relied upon the then current version of 47 O.S. § 759(C) which authorized the Board to adopt, amend and repeal administrative rules for enforcing Oklahoma implied consent laws. The Board held a Special Meeting on October 7, 2016, to promulgate Emergency Rules in response to the court's opinion in Sample , and these are the rules challenged by plaintiffs.
¶4 Plaintiffs argued the Board violated provisions in Oklahoma's Open Meeting Act (OMA),2 Oklahoma Administrative Procedures Act (OAPA),3 and the Oklahoma Administrative Code (OAC). They alleged: (1) Notice of a meeting held by the Board on October 7, 2016, was not provided as required by 25 O.S.2011 § 311 of the OMA; (2) The meeting did not satisfy the requirements of OAC 40:1-1-3 because the meeting was called by the Director of the Board without proper public notice; and (3) The emergency rules adopted by the Board for the purpose of amending then existent permanent rules were not properly promulgated pursuant to 75 O.S.Supp.2013 § 253 of the OAPA.
¶5 The defendants answered and asserted plaintiffs "have an exclusive remedy to raise the issues they have raised in this case in the county where their implied consent case has been filed." Defendants admitted certain rules were promulgated and denied such rules invalidated plaintiffs' arrests or the accuracy of plaintiffs' breath tests. Defendants denied the alleged violations of the OMA, OAPA, and the rules of the Board.
¶6 Plaintiffs filed a motion to enter the cause on a non-jury docket for trial. No pretrial conference was held and no Rule 5 pretrial order was filed.4 Defendants filed a motion for summary judgment which included both OMA issues as well as affirmative defenses based upon other litigation involving plaintiffs. Plaintiffs' response did not request summary judgment, and argued "there is a material fact in dispute." On August 8, 2019, the trial court filed a Court Minute stating defendants' motion for summary judgment was denied, and the minute set an "evidentiary hearing" for October 13, 2019. On the day of the hearing, defendants filed an "Evidentiary Hearing Trial Brief and Motion for Judgment as a Matter of Law." Plaintiffs filed a trial brief after the hearing. The trial court and the parties appear to have treated this evidentiary hearing as a trial on the merits because the journal entry of judgment after the hearing disposed of the claims "at issue," including the various affirmative defenses pled by Defendants' Answer but not raised in their motion for summary judgment or at the hearing, except for two defenses related to res judicata and estoppel.
¶7 Defendants' combined motion and brief contains several references to "undisputed evidence." No issue is identified as a specific issue of fact for trial court review, and the identified issues are explained with references to one or more legal principles needing an adjudication. Defendants argued "it is undisputed that the Board did give actual notice of the Special Meeting to the public and to Plaintiffs' own attorney." The conclusion of the motion states undisputed evidence shows no violation of the Administrative Code or the Open Meeting Act, and by plaintiffs' guilty pleas in previous criminal cases "they come into this court with unclean hands and are precluded from challenging the Emergency [administrative] Rules."
¶8 On October 31, 2019, the parties appeared for the evidentiary hearing. The trial judge asked for opening statements and plaintiffs' counsel stated defendants "carry the burden" and could speak first. The trial judge characterized defendants' speaking first as "the burden of presentation, [and] order of proof." Defendants argued three issues were before the trial court: (1) Whether the Board violated the OAPA and 40:1-1-3 of the Administrative Code, and that defendants had the burden of proof; (2) Whether the Board's Special Meeting on October 7, 2016 violated the OMA due to improper and willful conduct of an official, and plaintiffs had this burden of proof; and (3) Whether the Board properly promulgated emergency rules, and defendants had this burden. Two witnesses testified at the hearing, a former Director for the Board and a former member of the Board. The trial court filed the journal entry of judgment a few weeks after the hearing.
¶9 The judgment states that on October 5, 2016, the Director of the Board sent a Notice of a Special Meeting to all of the individuals and media who had requested email notifications of the Board's meetings. The notice was for a meeting "to discuss possible action on proposed emergency rulemaking." The court determined the notice for the meeting was properly posted at the Board's offices. The trial court also determined in preparation for the meeting "and in promulgating the Emergency Rules, Director Behrens complied with the ‘Rule Impact Statement’ that is required by 25 O.S. 2011, § 253." The Special Meeting held on October 7, 2016, "was attended by various Media organizations, as well as numerous attorneys, including Plaintiffs' attorney, Brian Morton."
¶10 The Board approved five emergency rules at the meeting. The Governor approved four of the emergency rules the same day as the meeting and approved the fifth emergency rule three days later on October 10, 2016. These emergency rules were published by the Secretary of State in the official State Registry on November 15, 2016.
¶11 The trial court rejected plaintiffs' claim that the Special Meeting was not properly called. Email communications between the Board's Director and members of the Board showed that at least four members of the Board were in agreement to hold the meeting. The court found the requirements in the Board's rules for calling a meeting were satisfied.
¶12 Plaintiffs also claimed the advance public notice of the Special Meeting was not properly given to the Secretary of State as required by 25 O.S.2011 § 311 (11). On October 7, 2016, the version of 25 O.S. § 311 (11) in effect stated in part as follows.
Special meetings of public bodies shall not be held without public notice being given at least forty-eight (48) hours prior to said meetings. Such public notice of date, time and place shall be given in writing, in person or by telephonic means to the Secretary of State or to the county clerk or to the municipal clerk of the public bodies in the manner set forth in paragraphs 2, 3, 4, 5 and 6 of this section.
The Director testified he was aware of a duty to give notice to the Secretary of State, and that neither he nor anyone else on behalf of the Board took any action to provide notice to the Secretary of State. The Director testified he "negligently failed to send the email" for the notice of the hearing to the Secretary of State.
¶13 The...
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