LODGE NO. 188 v. TULSA CTY. BD. OF COM'RS, No. 92

• Court: Supreme Court of Oklahoma
• Writing for the Court: HODGES, J.
• Citation: 995 P.2d 1124
• Parties: TULSA COUNTY DEPUTY SHERIFF'S FRATERNAL ORDER OF POLICE, LODGE NUMBER 188, Myra Kay Eberle, Tommy M. Fike, Laura Mcintire, Russell Frank Porter, John Edward Schonholtz and Debbie Ann Walters, Plaintiffs/Appellants, v. BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY and Tulsa County Criminal Justice Authority, Defendants/Appellees. Stanley Glanz, Sheriff of Tulsa County, Plaintiffs/Appellant, v. Board of County Commissioners of Tulsa County, and Tulsa County Criminal Justice Authority, Defendants/Appellees, and Oklahoma Sheriffs' Association, Intervenor/Plaintiff/Appellant, v. Board of County Commissioners of Tulsa County, and Tulsa County Criminal Justice Authority, Defendants/Appellants.
• Decision Date: 14 January 2000
• Docket Number: No. 503., No. 92, No. 626, No. 93

995 P.2d 1124

TULSA COUNTY DEPUTY SHERIFF'S FRATERNAL ORDER OF POLICE, LODGE NUMBER 188, Myra Kay Eberle, Tommy M. Fike, Laura Mcintire, Russell Frank Porter, John Edward Schonholtz and Debbie Ann Walters, Plaintiffs/Appellants,
v.
BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY and Tulsa County Criminal Justice Authority, Defendants/Appellees.
Stanley Glanz, Sheriff of Tulsa County, Plaintiffs/Appellant,
v.
Board of County Commissioners of Tulsa County, and Tulsa County Criminal Justice Authority, Defendants/Appellees, and
Oklahoma Sheriffs' Association, Intervenor/Plaintiff/Appellant,
v.
Board of County Commissioners of Tulsa County, and Tulsa County Criminal Justice Authority, Defendants/Appellants

Nos. 92,626, 93,503.

Supreme Court of Oklahoma.

January 14, 2000.

Rehearing Denied February 24, 2000.

James Thomas, Tulsa, Oklahoma; Thomas D. Frasier, Steven Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma; Michael H. Thompson, Oklahoma City, Oklahoma, For Appellants, Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Number 188, Myra Kay Eberle, Tommy M. Fike, Laura Mcintire, Russell Frank Porter, John Edward Schonholtz and Debbie Ann Walters,

Frederick S. Esser, Shelley Clemens, Washington County District Attorney, Bartlesville, Oklahoma, For Appellant, Stanley Glanz, Sheriff of Tulsa County.

Reuben Davis, Mary L. Lohrke, Boone, Smith, Davis, Hurst & Dickman, Tulsa, Oklahoma, For Appellant, Oklahoma Sheriff's Association.

C.S. Lewis, III, Gretchen M. Schilling, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, For Appellees, Tulsa County Criminal Justice Authority.

Tim Harris, Dick A. Blakeley, Office of the Tulsa County District Attorney, Tulsa, Oklahoma, For Appellees, Board of County Commissioners of Tulsa County.

995 P.2d 1126

HODGES, J

I. ISSUES

¶ 1 Three issues are presented for this Court's review: (1) whether title 19, section 744 and title 57, section 41, the statutes allowing jail-privatization, are constitutionally

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infirm;¹ (2) if the statutory provisions are constitutional, whether the Tulsa County Criminal Justice Authority (TCCJA) exceeded its authority by contracting with a private company for the operation and maintenance of the new Tulsa County Jail; and (3) whether the office and duties of sheriff were properly altered by the Legislature. We conclude that the challenged provisions are valid, that the TCCJA did not exceed its power by entering into a contract with a private company for the operation of the Tulsa County Jail, and that the Legislature had authority to and did in fact alter the duties of sheriff

II. FACTS

¶ 2 When the United States Justice Department investigated the Tulsa County jail system in 1994, it found that the condition of the jail violated the constitutional rights of prisoners and detainees. As part of a settlement agreement, Tulsa County agreed to build a new county jail by November 1998, to be occupied by February 1999.

¶ 3 On September 12, 1995, Tulsa County voters approved a sales tax increase for the construction and operation of a new county jail. The Tulsa County Commissioners created a public trust, the TCCJA, to administer the proceeds of the sales tax increase and the construction and operation of the new jail. On July 24, 1998, the TCCJA contracted with Corrections Corporation of America (CCA) for the management and operation of the new county jail.

¶ 4 The Tulsa County Sheriff's Fraternal Order of Police, Lodge Number 188 and a group of taxpayers sought a declaration that the TCCJA had wrongly been formed under title 60, rather than title 19, and that the delegation of jail operations to a private entity was unconstitutional. On cross motions for summary judgment, the trial court found that the TCCJA had not been properly created and that the delegation issue was therefore moot. An appeal was taken from this judgment. In the first appeal in this case, this Court reversed the trial court, holding that the TCCJA had been properly formed under the general trust provisions of title 60, section 176.² Because the trial court had not addressed the delegation issue, we remanded the case for further proceedings.³

¶ 5 On remand, the trial court, concluding that the jail-privatization statutes were valid, denied plaintiffs' motion for summary judgment and granted the County's cross motion for summary judgment. Once again, an appeal was taken (Appeal No. 92,626), this time by the plaintiffs. In a separate case, Stanley Glanz, Sheriff of Tulsa County, brought suit against the same defendants, and the Oklahoma Sheriffs' Association intervened. The

995 P.2d 1128

issues in both cases were the same. The trial court in the second case (Appeal No. 93,503) denied plaintiff's motion for summary judgment and granted the defendant's cross motions for summary judgment. The issues preserved for this Court's review are the same in both appeals. This Court retained both of the appeals for review of the presented issues. This Court, sua sponte, raised the issue of the effect of article 5, section 46 of the Oklahoma Constitution on jail privatization statutes, ordered the parties to submit briefs addressing this issue, and heard oral arguments on the issue

III. STANDARD OF REVIEW

¶ 6 In the present appeals, the plaintiffs have challenged the constitutionality of section 744 of title 19 and of section 41 of title 57, both of which authorize counties to enter into contracts with private entities for the operation of county prison facilities. Where the constitutionality of a legislative act is challenged, there is a presumption in favor of its validity, and this Court is not at liberty to evaluate the desirability or wisdom of the act.⁴ The challenging party must show "beyond a reasonable doubt" that the act is unconstitutional.⁵ "Whenever possible, statutes should be construed so as to uphold their constitutionality."⁶

IV. DELEGATION AND ADEQUATE STANDARDS

¶ 7 The plaintiffs argue that the Legislature has improperly delegated its rule-making authority by allowing the county to establish procedures for jail operation. This Court has not previously addressed the issue of whether the statutory provisions allowing counties to privatize their jails is an unlawful delegation of legislative power.

¶ 8 Oklahoma's non-delegation doctrine is rooted in articles IV and V of the Oklahoma Constitution. Section 1 of article IV provides for the separation of the three branches of government. Section 1 of article V requires that "[t]he Legislative authority of the State shall be vested in a Legislature consisting of a Senate and House of Representatives. . . ." Based on section 1 of article V, it is a well-settled rule that "the legislature must not abdicate its responsibility to resolve fundamental policy making. . . ."⁷

¶ 9 This prohibition does not forbid the Legislature from delegating power to implement its statutorily-mandated policies.⁸ Even though the Legislature may not delegate the power to make laws, it can delegate the authority to make rules and regulations in the implementation of statutory enactments.⁹ To prevent the Legislature's role from being usurped, its ability to delegate rule-making authority is subject to the condition that the statutory scheme "must establish [the legislative] policies and set out definite standards for the exercise of any agency's rule making power."¹⁰

While it is well settled in this jurisdiction that the power to determine the policy of the law is primarily legislative and cannot be delegated, the power to make rules of a subordinate character in order to carry out the policy legislatively determined and to apply that policy to varying factual conditions, although sharing the attributes of legislative exercise of power, is in its major sense an administrative duty which may be delegated properly to an administrative body by the Legislature.¹¹

¶ 10 When interpreting statutes, the intent of the Legislature controls, and to

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ascertain the legislative intent, all statutory provisions upon a particular subject will be considered and given effect as a whole.¹² An examination of all relevant statutory provisions is specific of the legislative intent that county jails would be subject to the same standards whether operated by the sheriff or a private entity. Section 744 of title 19 of the Oklahoma Statutes authorizes private operation of county prisons and provides that such jail "services shall meet any standards prescribed and established for county jails, including but not limited to standards concerning internal and perimeter security, discipline of inmates, employment of inmates, and proper food, clothing, housing, and medical care."¹³ Also relevant is section 68 of title 57 which states "any state law governing jails shall apply to jail facilities operated by a private prison contractor."¹⁴

¶ 11 There are extensive guidelines already in place which have long applied to county-operated prisons and, under section 744 of title 19 and section 68 of title 57, apply to privately-operated prisons. Section 192 of title 74 requires certain standards for many areas of jail operations such as: admission and release procedures, security, sanitary conditions, diet, clothing, living space, discipline, prisoners' rights, staff training, safety, prisoner supervision and segregation of females, minors and the infirm. Under section 192 of title 74, the State Health Department is required to inspect county jails once a year and violations are to be reported to the district attorney. The Oklahoma Administrative Code, title 310, section 670, sets out additional standards for jail operations. These standards, under which counties have operated their jails, apply to and are nonetheless sufficient for private-jail operations.

¶ 12 The Legislature has enacted policy addressing how prisons should be operated and allowing privatization. Because the Legislature has provided that all county jails...