Sharp v. Tulsa County Election Bd.
| Decision Date | 20 September 1994 |
| Docket Number | No. 82903,82903 |
| Citation | 890 P.2d 836,1994 OK 104 |
| Parties | 98 Ed. Law Rep. 424, 1994 OK 104 Mark A. SHARP, Petitioner, v. The TULSA COUNTY ELECTION BOARD, Respondent. |
| Court | Oklahoma Supreme Court |
Original proceeding requesting a writ of mandamus, asking that Respondent be required to place candidate's name on ballot for a school board election. Writ was issued to avoid possible violation of constitutional rights. We now hold that 70 O.S.Supp.1992 § 5-113 governs this matter and is constitutional. We vacate the writ, and allow petitioner to resign his seat on the board within thirty days to avoid penalties set forth by Section 5-113.
Ron B. Barber, Robert J. Bartz, Joe M. Fears and E. Scott Pruitt, Barber & Bartz, Tulsa, for petitioner.
Dick A. Blakely, Asst. Dist. Atty., Tulsa, for respondent.
This is an original action in this Court seeking a writ of mandamus to the Tulsa County Election Board. The Petitioner was a candidate for School Board whose name had been removed from the ballot by the Election Board. We issued the writ and allowed the candidate's name to remain on the ballot, advising that an opinion would follow. We now vacate the writ and uphold the action of the Election Board.
Mark Sharp filed as a candidate for office on the School Board of the Jenks Independent School District No. 5. No other individual filed for the seat. After the filing period ended Hester White Tyler filed a petition with the Tulsa County Election Board protesting the candidacy of Sharp. The basis of her protest was 70 O.S.Supp.1993, § 5-113 and 5-113.1. She urged that Sharp was prohibited by these statutes from being a candidate because his wife was a teacher in the Jenks School District. The Election Board agreed and removed his name from the ballot.
Sharp then filed a petition with this Court, asking for a writ of mandamus to order the Election Board to place his name on the ballot. His petition was filed on January 25, 1994. The election was to be held on February 8, 1994. Sharp asserted (1) that the statutes were in conflict and must be resolved in favor of his candidacy, and (2) that § 5-113 was an unconstitutional violation of his right to be a candidate. These were questions of first impression. We issued the writ of mandamus to allow the election to proceed with Sharp as the only candidate, and stated in the order that an opinion would follow to resolve the issues raised by the parties.
Because Sharp presented an arguable claim of the violation of his federal constitutional rights in a case of first impression, we chose to allow him to remain on the ballot pending our resolution of the matter. A writ
of mandamus may be issued to avoid confusion and disorder. State ex rel. Settles v. Bd. of Educ. of Dependent School District No D-38, 389 P.2d 356, 361 (Okla.1964) (). We have also recognized the need, on certain occasions, to maintain the status of the parties pending resolution of the merits of the case. National Collegiate Athletic Ass'n v. Owens, 555 P.2d 879, 881 (Okla.1976) (); General Motors Corp. v. Cook, 528 P.2d 1110, 1114 (Okla.1974) (). This Court has the authority to issue a writ of mandamus when the questions are publici juris, or when some unusual situation exists so that a refusal to exercise jurisdiction would work a great wrong or a denial of justice. Clark v. Warner, 85 Okla. 153, 204 P. 929, 931 (1922); State v. Ross, 76 Okla. 11, 183 P. 918, 920 (1919). The writ of mandamus here was necessary to prevent the possibility of a constitutional injustice.
In 1992, the legislature amended the statutes dealing with nepotism in school districts. Title 70 O.S.Supp.1992 Section 5-113 prohibited a school board member, or a candidate for school board to be related within the second degree by affinity or consanguinity to any other member of the board or to any employee of the school district. The reason for the anti-nepotism rule, as expressly stated in the statute, was to prohibit persons who were related from serving simultaneously on the board, and to prohibit a person from serving on the board while a close relative was employed by the school district. Section 113 also contains a "grandfather" clause which creates an exception to this rule. It allows a present member of the board to continue his or her term, and to be elected to successive terms, even if he or she is related to another board member or to a school district employee.1
Section 5-113.1 deals with the employment of teachers and other school district employees if they are related to a board member. Again, the statute prohibits the employment of persons related within the second degree of consanguinity or affinity unless the employee is already under contract or otherwise employed by the school district at the time the board member is elected. A teacher or employee in the latter situation may continue employment. Section 5-113.1 goes on to provide that any board member who is related within the second degree to an employee shall not participate in any personnel matter or litigation involving the related employee.2
Both Section 113 and 113.1 state that any person in violation of the rules shall be subject to the (misdemeanor) penalties set forth in 21 O.S.1991 §§ 485 and 486. These sections also provide that any person guilty of violating these rules shall be removed from office.
Sharp argues that these two statutes are inconsistent, because Section 5-113 prohibits the candidacy of a person related to an employee of the school district, while Section 5-113.1 expressly states that it is not intended to prohibit the candidacy of any person for a seat on a board of education. Tyler and the Tulsa County Election Board urge that the two are not inconsistent, that Section 5-113 deals with the eligibility requirements of school board members and candidates, while Section 5-113.1 deals with the eligibility requirements of teachers and employees.
The fundamental rule of statutory construction is to ascertain the intent of the legislature in enacting the law and construing so as to give effect to this intent. The provisions, if possible must be construed together to give force and effect to each other. Public Serv. Co. v. State ex rel. Corp. Comm'n, 842 P.2d 750, 752 (Okla.1992); TRW/Reda Pump v. Brewington, 829 P.2d 15 (Okla.1992). The legislative intent is determined from the language of the statute in light of its general purpose. Oglesby v. Liberty Mut. Ins. Co., 832 P.2d 834, 840 (Okla.1992). A presumption arises that the legislature expressed its intent in the statute and that it intended what it expressed. City of Chandler v. State ex rel. Dept. of Human Serv., 839 P.2d 1352, 1354 (Okla.1992); Humphrey v. Denney, 757 P.2d 833, 835 (Okla.1988).
In the present case it is not difficult to determine the intent of Sections 5-113 and 5-113.1. The intent of the legislature was to prevent nepotism within a school district as between the school board members and its teachers and employees. The policy behind the statutes is to avoid conflicts of interest, favoritism and the appearance of favoritism.
If possible, statutes are to be construed so as to render them consistent with one another. State ex rel. Macy v. Freeman, 814 P.2d 147, 151 (Okla.1991); Eason Oil Co. v. Corp. Comm'n, 535 P.2d 283, 286 (Okla.1975). It is the duty of this Court to reconcile the different provisions of statutes, as far as practicable, to make them not only consistent and harmonious, but also to give an intelligent effect to each. Inexco Oil Co. v. Corp. Comm'n, 628 P.2d 362 (Okla.1981); Trapp v. Wells Fargo Express Co., 22 Okla. 377, 97 P. 1003 (1908). If two constructions are possible, this Court will prefer the one that avoids conflict between the two provisions. Roach v. Atlas Life Ins. Co., 769 P.2d 158 (Okla.1989).
Sharp's statutory construction argument may succeed only if one sentence in Our analysis is that Section 5-113 deals with the requirements for school board candidacy, whereas Section 5-113.1 focuses on the hiring of employees of the school district. Section 5-113 specifically states who is ineligible for candidacy. Section 5-113.1 specifically states who may be employed by the school district. Section 5-113.1 states that it is not to be construed to prevent an individual from being a candidate. But that statement does not lend itself to allowing family members to be candidates for school board. Instead we determine that it is an acknowledgement that school board eligibility requirements are governed by a separate statute, namely Section 5-113. In fact, it is clear that the intent behind Section 5-113 was to determine and set forth the eligibility requirements for individuals seeking to run for a seat on the school board. We find that the two provisions are consistent with one another.
§ 5-113.1 cancels out the prohibition in § 5-113. That sentence is "Nothing herein shall be construed to make any person ineligible to become a candidate for the board of education." This requires us to analyze the meaning of the word "herein." "Herein" as used in legal phraseology is a locative adverb, and its meaning is to be determined from the context. It may refer to the single section, or to the chapter, or to the article, or to the whole enactment in which it is used. Adams v. City of Hobart, 27 P.2d 595, 597-98 (Okla.1933); Gatliff Coal Co. v. Cox, 142 F.2d 876, 882 (6th Cir.1944). This rule is applicable to the construction of a document as well as of a statute. In re Pearson's Estate, 98 Cal.
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