In re Turkey Creek Conservancy Dist.

• Decision Date: 29 January 2008
• Docket Number: No. 100,513.,100,513.
• Citation: 2008 OK 8,177 P.3d 558
• Parties: In the Matter of the TURKEY CREEK CONSERVANCY DISTRICT in Kingfisher, Garfield, Alfalfa and Major Counties in the State of Oklahoma. Jack G. Witt, Lisa Ann Meyers and Jack G. Witt, Trustees of the Lisa Ann Meyers Family Trust, Doyle Jones, Marvin Jones, Thelma Berkenbile and Max Vincent, Appellants, v. Turkey Creek Conservancy District in Kingfisher, Garfield, Alfalfa and Major Counties in the State of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

177 P.3d 558

2008 OK 8

In the Matter of the TURKEY CREEK CONSERVANCY DISTRICT in Kingfisher, Garfield, Alfalfa and Major Counties in the State of Oklahoma Jack G. Witt, Lisa Ann Meyers and Jack G. Witt, Trustees of the Lisa Ann Meyers Family Trust, Doyle Jones, Marvin Jones, Thelma Berkenbile and Max Vincent, Appellants, v. Turkey Creek Conservancy District in Kingfisher, Garfield, Alfalfa and Major Counties in the State of Oklahoma, Appellee.

No. 100,513.

Supreme Court of Oklahoma.

January 29, 2008.

Certiorari to the Court of Civil Appeals, Division II, Appeal from the District Court of Garfield County, State of Oklahoma; John W. Michael, Trial Judge.

¶ 0 Appellee, a conservancy district, was formed under the Conservancy Act of Oklahoma, 82 O.S. §§ 531-688.1. Appellants own land in the district and appeal a judgment approving an appraisers' report that sets the amounts of assessments against them as to flood control projects in the district. If not paid as required, the assessments become liens on the land and subject it to being sold by tax sale. One issue raised to support reversal is that the trial court erred in denying motions to quash that argued notice by publication of the report, the time set for filing objections to it and the hearing date on the report and any objections filed, was insufficient to satisfy due process under Okla. Const. art. 2, § 7. The Court of Civil Appeals affirmed the judgment, rejecting the due process argument and others raised to support reversal. Appellants sought certiorari which we previously granted. We hold notification by publication alone is constitutionally deficient when the names and addresses of those subject to the assessment are known or readily available. Some other form of notice reasonably calculated to apprise them of the report and the opportunity to challenge it is required to satisfy due process under art. 2, § 7 of the Oklahoma Constitution.

COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT JUDGMENT REVERSED AND MATTER REMANDED FOR FURTHER PROCEEDINGS.

Vincent Mesis Jr., Hennessey, OK, for Appellants.

Sarah J. Kennedy, Perry, OK, for Appellees.

PER CURIAM.

¶ 1 Landowners in a conservancy district appeal a trial court judgment approving an appraisers' report. When approved, the report sets the amounts of assessments to be paid by the landowners for flood control projects in the district. If not paid as required, the assessments become liens on their land in the district and subject it to tax sale. One issue raised to support reversal is that the trial court erred in denying motions to quash that argued notice by publication of the report, the time set for filing objections to it and the date set for hearing on the report and any objections filed, was insufficient to comply with Okla. Const. art. 2, § 7. Art. 2, § 7 provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." The Court of Civil Appeals (COCA), Division II, affirmed the judgment, rejecting the due process argument and others raised to support reversal.

¶ 2 We hold the trial court erred in denying the motions to quash and that publication notice alone is constitutionally deficient when the names and addresses of those subject to the assessment are known or readily available. Some other form of notice reasonably calculated to apprise them of the report and the opportunity to challenge it is required to satisfy procedural due process. We reverse the trial court judgment because of the insufficient notice, vacate the COCA's opinion affirming it and remand to the trial court for further proceedings.

STANDARD OF REVIEW

¶ 3 Constitutional questions as to whether procedural due process rights have been violated are subject to a de novo review standard. See In re A.M., 2000 OK 82, ¶ 6, 13 P.3d 484, 486-487. Such a review involves an independent and non-deferential re-examination of another tribunal's legal rulings. Id.

OVERVIEW OF STATUTORY SCHEME, FACTS AND PROCEDURAL BACKGROUND

¶ 4 Appellee, Turkey Creek Conservancy District in Kingfisher, Garfield, Alfalfa and Major Counties in the State of Oklahoma (Appellee), was formed pursuant to the Conservancy Act of Oklahoma (the Act), 82 O.S. §§ 531-688.1¹ The many purposes for which conservancy districts may be established include flood prevention. § 541(B)(1)(a)-(g). After a district is established, the district's board of directors prepare a plan of improvements for which the district was created. § 565. In this case the plan was prepared and approved by the trial court, with an amendment not relevant to our decision here. The plan projects relate to flood water retarding structures to control erosion, sedimentation and flooding in the district.

¶ 5 Section 601 of the Act sets out the procedures for appointing appraisers, and three appraisers were appointed by the trial court in this case. When the official district plan is filed with the secretary of the district, the appraisers are to appraise the benefits to property within and without the district resulting from organization of the district and execution of the plan. § 602(a). The appraisers' report is to contain the name of the owner of property appraised as it appears on the current tax roll of the county and a description of the property as per government survey in tracts not exceeding 320 acres in extent. § 605. It is also required to contain the amount of benefits to each tract [id.], and this amount is the underlying basis for the levy of assessments against landowners should the appraisers' report be confirmed.

¶ 6 When the report is filed in the case, the court clerk gives notice by publication of the filing, the opportunity to file objections to the report and the hearing date where any objections/exceptions will be heard by the trial court. § 606. The notice is required to contain the names of landowners (like Appellants) who are identified in the appraisers' report as owning land that will be affected by the proposed improvements [id.] and, of course, will be subjected to an eventual assessment based on the appraised benefit, assuming the trial court approves the report.

¶ 7 Section 608 of the Act provides that after hearing any exceptions to the report and appraisals contained in it, and if the trial court determines the estimated cost to the district of constructing the improvements contemplated is less than the benefits appraised, the court shall approve and confirm the appraisers' report as it may be modified and amended. Section 608 also makes it clear that when such a report is approved, the appraisals of benefits contained in it are fixed:

If it appears to the satisfaction of the court after having heard and determined all said exceptions that the estimated cost to the conservancy district of constructing the improvement contemplated in the official plan is less than the benefits appraised, then the court shall approve and confirm said appraisers' report as so modified and amended, and such findings and appraisals shall be final and incontestable as to property within the district.

(emphasis added). Such an order may, however, be appealed to this Court for review. See § 609.

¶ 8 After the report's approval and as the affairs of the district demand it, the district's board of directors are required to levy on the property upon which benefits have been appraised an assessment in an amount then needed for execution of the district's official plan, plus a ten percent (10%) contingency, but not to exceed the appraised benefits adjudicated. § 634. If the assessments are not paid, they become liens on the properties against which assessments have been levied. § 642. Assessments remaining unpaid after they are due bear a one percent (1%) penalty per month until paid "and [are] enforceable by tax sale as a part of the ad valorem tax charge each year." § 640.

¶ 9 In the instant case, the report of the appraisers was filed in the district court in December 2002. It stated:

We have assessed the benefits against lands in the Turkey Creek Conservancy District plus a ten (10) percent contingency naming the owners of said lands, the tract number according to the official plan of said Conservancy District, the legal description of the lands against which benefits have been assessed, the acreage affected, the amount of each assessment, the ten (10) percent contingency for each assessment and the total amount assessed against each property comprising the total area of the Turkey Creek Conservancy District as said Conservancy District now exists.

Notice of hearing on the report was published in the Kingfisher Times and Free Press on December 18 and 25, 2002 and January 1, 2003.² The notice listed the names of landowners that were to be subject to an assessment, the affected acreage and the amount of the assessment plus the 10% contingency. It also stated a hearing would be held on the report and any objections filed to it on January 29, 2003 at 10:00 a.m. in the district court of Kingfisher County. The notice informed that objections were to be filed prior to the hearing date and that affected property owners filing objections shall appear on that date to show cause why the report and the assessments made therein should not be confirmed as calculated by the appraisers or as the trial court may amend.

¶ 10 There is no dispute here that the publication notice given is the only notice statutorily required to landowners like Appellants regarding the appraisers' report and the opportunity to contest the appraisals contained it. There is also no dispute that the notice complied with applicable statutory requirements.

¶ 11 Prior to the scheduled hearing on the appraisers' report all Appellants (except one) filed special appearances and motions to quash.³ The motions argued the publication notice was constitutionally deficient under Okla. Const. art. 2, § 7. At the beginning of the scheduled hearing the trial court took up the...