Pentagon Academy v. Independent Sch. Dist., 98,384.

• Decision Date: 25 November 2003
• Docket Number: No. 98,384.,98,384.
• Citation: 2003 OK 98,82 P.3d 587
• Parties: The PENTAGON ACADEMY, INC., Plaintiff/Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Defendant/Appellee.
• Court: Oklahoma Supreme Court

82 P.3d 587

2003 OK 98

The PENTAGON ACADEMY, INC., Plaintiff/Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Defendant/Appellee.

No. 98,384.

Supreme Court of Oklahoma.

November 25, 2003.

Gentner F. Drummond, Will K. Wright, Jr., The Drummond Law Firm, Tulsa, OK, for Plaintiff/Appellant.

J. Douglas Mann, Eric D. Wade, Rosenstein, Fist & Ringold, Tulsa, OK, for Defendant/Appellee.

SUMMERS, J.

¶ 1 The question is whether an unsuccessful charter school applicant may compel the School District to submit to binding arbitration on the application. Title 70 O.S.2001, § 3-134(F) of the Charter Schools Act provides that when an application to establish a charter school is rejected by a board of education, the unsuccessful applicant "may proceed to mediation or binding arbitration or both mediation and binding arbitration as provided in the Dispute Resolution Act [12 O.S. §, 1801et seq.] and the rules promulgated pursuant thereto." The issue before us is whether the district court erred when it refused to apply this statutory provision to grant Pentagon Academy's request for binding arbitration after the board of education of the Tulsa School District rejected its application for approval as a charter school. We answer the question in the negative, and affirm the trial court's grant of summary judgment to the Tulsa School District. It is Pentagon Academy's appeal which is retained before us for review.

¶ 2 In its entirety, § 3-134(F) provides:

F. If a board of education rejects the revised application for a charter school, the applicant may proceed to mediation or binding arbitration or both mediation and binding arbitration as provided in the Dispute Resolution Act [12 O.S., § 1801 et seq.] and the rules promulgated pursuant thereto. The applicant shall contact the early settlement program for the county in which the charter school would be located. If the parties proceed to binding arbitration, a panel of three arbitrators shall be appointed by the director of the early settlement program handling the dispute. The board of education shall pay the cost for any mediation or arbitration requested pursuant to this section. (Emphasis provided.)

¶ 3 However, the Dispute Resolution Act, 12 O.S.2001, § 1801, et seq., which 70 O.S., § 3-134(F) incorporates by reference, does not authorize binding arbitration, nor have any rules for arbitration been promulgated pursuant thereto. That Act provides solely for the establishment of programs for mediation services, and mandates procedures, rules and regulations for only mediation services. With one insignificant exception¹, the provisions of the Dispute Resolution Act make no mention of arbitration. We do not set forth the whole Dispute Resolution Act here. It is sufficient to note that the Act does not provide for binding arbitration as a means of resolving disputes, nor does it establish rules and procedures for its implementation. Its title reads:

An Act relating to civil procedure; establishing a Dispute Resolution Act; stating purpose; providing short title; defining terms; authorizing establishment of programs to provide mediation services; establishing procedures; requiring certain rules and regulations in supplying mediation services; providing for confidentiality; limiting liability in certain circumstances; providing for tolling of statute of limitations under certain conditions; providing for codification; providing an operative date; and declaring an emergency. Laws 1983, c. 78. (Emphasis supplied.)

¶ 4 To that end, the Dispute Resolution Act provides that rules for the effectuation of the purposes of the Act shall be promulgated by the Administrative Director of the Courts, with the approval of the Supreme Court of Oklahoma. Title 12 O.S.2001, § 1803(A) provides:

Any county, municipality, accredited law school or agency of this state is hereby authorized to establish programs for the purpose of providing mediation services pursuant to the provisions of the Dispute Resolution Act, ... to be administered and supervised under the direction of the Administrative Director of the Courts. The Administrative Director shall promulgate rules and regulations, subject to the approval of the Supreme Court of the State of Oklahoma, to effectuate the purposes of the Dispute Resolution Act.

¶ 5 Pursuant to the statute, rules and procedures for establishing and regulating mediation were promulgated by the Administrative Director and were initially adopted by the Oklahoma Supreme Court in 1986. See, 12 O.S. Ch. 37, App. Rules and Procedures for the Dispute Resolution Act, and Appendix A through Appendix D.

¶ 6 The Supreme Court, however, has never adopted rules and regulations governing arbitration. At trial the parties showed that a draft of rules and regulations regarding binding arbitration had been promulgated by the Administrative Director of the Courts, but that those rules and regulations were never approved by the Supreme Court, and were later withdrawn by the Director.

¶ 7 This summary judgment review calls for statutory interpretation, and presents only questions of law which stand before us for de novo review. The grant of summary judgment, ultimately a legal determination as to whether a party is entitled to judgment as a matter of law, is reviewed by appellate courts by a de novo standard exercising plenary, independent and non-deferential authority. Cranford v. Bartlett, 2001 OK 47, 25 P.3d 918. Additionally, statutory interpretation is reviewed de novo. Fraternal Order of Police v. Ardmore, 2002 OK 19, 44 P.3d 569.

¶ 8 The material facts of this matter were not in dispute. The Pentagon Academy brought this action for declaratory judgment seeking to have the trial court determine its right to binding arbitration under the Charter School Act, 70 O.S.2001, §§ 3-130, et seq., and issue its order compelling the school district to participate in binding arbitration concerning its denial of plaintiff's charter school application. The parties jointly stipulated below to the following facts as conclusive of the controversy between them. ¶ 9 On February 1, 2001 the board of education of the Tulsa School District received the Pentagon Academy's application for approval as a charter school, and the board voted to tentatively approve the application pending completion of the application. The completed application was received on February 1, 2002 but was rejected by the School District, which sent timely notice to the Pentagon Academy of the application's rejection and the reasons therefor. The Academy then submitted a revised application for approval as a charter school and on June 18, 2002, the Tulsa School District also rejected the revised application. Based on the above provisions of 70 O.S.2001, § 3-134(F), the Pentagon Academy requested that the Tulsa School District participate in binding arbitration. The School District declined to do so, but did offer to participate with the Pentagon Academy in non-binding mediation. The Pentagon Academy refused to participate in mediation and filed this declaratory judgment action.

¶ 10 The Pentagon Academy contends that the words of 70 O.S. § 3-134(F) authorize the parties to participate in mediation or binding arbitration, and also grant the right to decide whether to pursue binding arbitration exclusively to it, the unsuccessful applicant. Pentagon Academy argues that since the statute gave defendant Tulsa School District no choice as to whether to participate in binding arbitration, its refusal to so do was arbitrary, capricious and contrary to law.

¶ 11 Pentagon Academy further argues that the fact that the Dispute Resolution Act does not provide for arbitration and the fact the Supreme Court has not approved rules and regulations governing arbitration pursuant to that act are irrelevant to the expressed intent of the legislature to allow the charter applicant to choose binding arbitration. It maintains that because the statute provides that the director of the early settlement program "shall" appoint a panel of three arbitrators and the board of education "shall" pay the costs, the panel should be allowed to select its own rules to govern the arbitration so the applicant will not be penalized by the silence of the Dispute Resolution Act or the absence of rules approved by the Supreme Court.

¶ 12 Pentagon Academy argues that the only reasonable construction of the statute is that the legislature intended the unsuccessful applicant to have the option to compel arbitration, and that in the face of the legislative failing, or ineptness—the Dispute Resolution Act's silence on arbitration procedures and rules—the court should simply construe the language of 70 O.S.2001, § 3-134 to give the provision its intended and obvious purpose.

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