Lee v. Norick
| Decision Date | 03 December 1968 |
| Docket Number | No. 42890,42890 |
| Citation | 447 P.2d 1015 |
| Parties | E. B. LEE, Plaintiff in Error, v. James H. NORICK, Mayor, and H. T. Moran, Patience Latting, Harry L. Deupree, M.D., Bill H. Bishop, John M. Smith, Ben Franklin, A. L. Dowell, O.D., and Rowe Cook, City Councilwoman and Councilmen of the City of Oklahoma City, a municipal corporation, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A city charter, adopted and approved, in accordance with Constitution, Art. 18, § 3(a), becomes the organic law of the city in its municipal affairs.
2. Provisions of a city charter, adopted and approved in accordance with Constitution, Art. 18, § 3(a), supersede all laws of the state in conflict therewith insofar as such laws relate to merely municipal matters.
3. The provisions in the charter of the City of Oklahoma City vesting power in the City Council to remove the judge of the municipal court are not nullified by the provisions of 11 O.S.1961, § 783, and such charter authority is cumulative and concurrent with general laws relating to removal of public officers.
Appeal from the District Court of Oklahoma County; Clarence Mills, Judge, and Harold Theus, sitting in an advisory capacity.
Action by E. B. Lee against James H. Norick, Mayor, and the Councilmen of Oklahoma City, for reinstatement to the office of judge of the Municipal Court. Plaintiff appeals from adverse judgment. Affirmed.
Tom Woody and Doyle C. Scott, Scott, Groom & Romano, Oklahoma City, for plaintiff in error.
Roy H. Semtner, Municipal Counselor, Giles K. Ratcliffe, Asst. Municipal Counselor, Oklahoma City, for defendants in error.
This is an appeal by E. B. Lee (plaintiff below) from an order and judgment of the lower court refusing to issue a peremptory writ of mandamus commanding James H. Norick, Mayor, and the Councilmen of the City of Oklahoma City (defendants below) to reinstate the plaintiff in his office as a Municipal Judge of the City of Oklahoma City. The judgment was rendered upon the pleadings of the parties, as supplemented by various written exhibits presented at the hearing. No testimony was introduced. The lower court determined, as a matter of law, that the plaintiff was not entitled to be reinstated and refused to issue the writ.
There is no dispute as to the facts. The plaintiff was a municipal judge of the City prior to December 27, 1967. On that date the City, by action of the City Council, passed an emergency ordinance (Secs. 1--9, Chap. 1, Title 8) establishing a system of municipal courts, and providing for the appointment of three judges to serve as judges for all the courts, and repealing the prior ordinance dealing with that subject. The enacted ordinance established a Court of Record with jurisdiction as provided by the laws of the State of Oklahoma, a Criminal Court with jurisdiction over violations of ordinances other than those pertaining to traffic, and a Traffic Court with jurisdiction over violations of traffic ordinances. The Criminal Court and Traffic Court were limited to cases where the prescribed penalty did not exceed a fine and costs of $20.00. On the same date the plaintiff was reappointed by the City Council as one of the municipal judges. On January 23, 1968, the City Council voted to discharge the plaintiff as municipal judge, effective that date, with pay through January 31, 1968, plus accrued vacation time, and plaintiff was given written notice of such action. Plaintiff then filed this action for reinstatement.
There is no dispute that the plaintiff was appointed as judge of a municipal court established pursuant to 11 O.S.Supp.1965, § 781, which created a 'Court of Record which shall be known as the 'Municipal Court of the City of _ _' * * *.' in cities having a population of more than 50,000 inhabitants.
Under the provisions of 11 O.S.1961, § 782, the court was vested with jurisdiction to hear and determine prosecutions for violations of City ordinances, and co-ordinate jurisdiction with the County Court and Courts of Justice of the Peace of the County for violations of statutes of the State, where the offense, or misdemeanor, was committed within the corporate limits of the City.
Plaintiff contends that under the applicable statutes and law his appointment as municipal judge was for a term of two years and that the City Council had no authority to summarily remove him without cause and an opportunity to be heard.
Plaintiff relies upon 11 O.S.1961, § 783, which provides as follows:
It is plaintiff's position that this statute supersedes any charter provision of the City whereby the City may remove him from his office without cause. He does not furnish us with any statutory provision or proceeding whereby sufficient cause is defined or determined. We assume he has reference to 22 O.S.1961 § 1181, et seq., in which causes and procedure for removal of officers are set forth. In § 1181 thereof it is provided that any officer not subject to impeachment elected or appointed to any State, county, township, city, town or other office under the law of this State may, in the manner provided by succeeding sections, be removed from office for the causes enumerated therein. We assume that plaintiff also has reference to 51 O.S.1961, §§ 91--105, providing the grounds and court procedure for ouster of city and municipal officers and other officers who are not subject to impeachment.
The defendants take the position that, in as much as Oklahoma City has a charter adopted and approved in accordance with the Oklahoma Constitution, Art. 18, § 3(a), the provisions of the charter prevail in the present situation as to the power and manner of removing municipal judges.
Defendants rely on 11 O.S.1961, § 564 (R.L.1910, § 539) which provides, generally, that the provisions of a charter shall prevail when in conflict with any laws relating to cities and shall operate to repeal or suspend the state law to the extent of such conflict; provided that the charter shall be consistent with and subject to the Constitution, and not in conflict with the laws relating to the exercise of the initiative and referendum and other general laws not relative to cities of the first class.
Article 4, § 16, of the Charter of Oklahoma City provides in part that the City Council shall provide by ordinance for Municipal Courts for the City, which shall be presided over by one or more municipal judges, and shall fix the jurisdiction of said courts.
The pertinent portions of Article 2 of the Charter are as follows:
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