Zoo Trust v. State ex rel. Perb

• Decision Date: 10 April 2007
• Docket Number: No. 101,978.,101,978.
• Citation: 2007 OK 21,158 P.3d 461
• Parties: OKLAHOMA CITY ZOOLOGICAL TRUST, A Public Trust, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. PUBLIC EMPLOYEES RELATIONS BOARD, A State Agency, Defendant, The American Federation of State, County and Municipal Employees Union, Local 2406, AFL-CIO, Defendant/Appellant.
• Court: Oklahoma Supreme Court

158 P.3d 461

2007 OK 21

OKLAHOMA CITY ZOOLOGICAL TRUST, A Public Trust, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. PUBLIC EMPLOYEES RELATIONS BOARD, A State Agency, Defendant The American Federation of State, County and Municipal Employees Union, Local 2406, AFL-CIO, Defendant/Appellant.

No. 101,978.

Supreme Court of Oklahoma.

April 10, 2007.

On Appeal from the District Court, Oklahoma County; Carolyn R. Ricks, Trial Judge.

¶ 0 The Oklahoma City Zoological Trust brought an action against the Public Employees Relations Board and the American Federation of State, County and Municipal Employees for declaratory and injunctive relief from the Oklahoma Municipal Employees Collective Bargaining Act. The district court found the Zoological Trust was not subject to the terms of the Act and granted the requested injunctive relief. American Federation of State, County and Municipal Employees, defendant below, brought this appeal which stands retained for this court's disposition.

AFFIRMED.

Kenneth Dale Jordan, Diane Lewis, Marsha D. Harrod, Oklahoma City, OK, for plaintiff/appellee Oklahoma City Zoological Trust.

W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Rinehart, Senior Assistant Attorney General, Oklahoma City, OK, for defendant, Public Employees Relations Board.

James R. Moore, Sue Wycoff, Chanda R. Graham, Moore & Vernier, Oklahoma City, OK, for defendant/appellant, American Federation of State, County and Municipal Employees.

OPALA, J.

¶ 1 The dispositive issue here is whether Oklahoma City may be considered to stand in the status of legal employer vis-a-vis the employees of the Oklahoma City Zoological Trust, a public trust. The trial court's answer was in the negative and today we reaffirm its correctness.

I. ANATOMY OF LITIGATION

¶ 2 On 1 November 2004, the same day the Oklahoma Municipal Employee Collective Bargaining Act (Act)¹ went into effect, the American Federation of State, County, and Municipal Employees (AFSCME) petitioned the Public Employees Relations Board (PERB) to determine the appropriate bargaining unit for Oklahoma City Zoological Trust (Zoo Trust or Trust) employees. The Trust brought on 9 November 2004 this action against PERB and AFSCME for declaratory and injunctive relief from the Act's application. AFSCME moved to dismiss, arguing that the Trust failed to exhaust its administrative remedies.

¶ 3 The district court found on 24 March 2005 that the Zoo Trust was not a municipal employer within the meaning of the Act, PERB would be exceeding its authority if it were to certify AFSCME as the exclusive bargaining representative of Trust employees, and the Trust was entitled to the injunctive relief it sought. AFSCME appealed.

¶ 4 AFSCME argues here the Trust has not exhausted its administrative remedies, the district court erred in declaring the Act did not apply to the Trust, the Trust was created by Oklahoma City (City), and the Trust's arguments are contrary to the intent of the Act. The Trust argues that exhaustion of administrative remedies does not apply here, the Act was never intended to be imposed upon the Trust, nor is the latter entity an "authority" created by the City.

II. STANDARD OF REVIEW

¶ 5 "An appellate court's standard of review is not mere ritualistic legal liturgy. It defines the permissible sweep of critical testing to be undertaken by a reviewing court."² A declaratory judgment of a competent court is "reviewable in the same manner as other judgments."³ We hence review the record to determine if the trial court abused its discretion in construing the statute in the manner in which it did or its decision is contrary to the evidence adduced.⁴ An abuse of discretion takes place when the decision is based on an erroneous interpretation of the law, on factual findings that are unsupported by proof, or represents an unreasonable judgment in weighing relevant factors.⁵ This court will decline to affirm only those trial court's decisions which do not conform to the law's standard of correctness.

¶ 6 The Legislature's intent in passing the law submitted for judicial testing governs its construction.⁶ The language of an entire act is afforded a "reasonable and sensible construction"⁷ in a manner consistent with other statutes.⁸ It is presumed "the Legislature expressed its intent in the statute . . . and . . . intended what it expressed."⁹ When the language of the statute is plain, it will be followed without further inquiry. When further inquiry is needed, this court is "not free to rewrite the statute . . . . [T]he sole function of the courts — at least where the disposition [called for] by the text is not absurd — is to enforce it [the statute] according to its terms."¹⁰ Courts must "if possible, construe a statute to give every word some operative effect"¹¹ and vigorously "resist reading words or elements into a statute that do not appear on its face".¹² The legislature expresses its purpose by words. "It is for [this court] to ascertain [the meaning of these words] — neither to add nor to subtract, neither to delete nor to distort."¹³ This court is thus without authority to supplement by judicial interpretation the classification of persons subject to statutory authority "but must accord the language used by the Legislature, it being unambiguous, . . . fair, reasonable, plain and ordinary import or meaning"¹⁴

III. THE ZOO TRUST WAS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE BRINGING ITS DECLARATORY JUDGMENT SUIT

¶ 7 The Trust need not exhaust any administrative remedies. Ordinarily, a plaintiff is required to pursue all available administrative relief before bringing a court action.¹⁵ The failure to do so is fatal.¹⁶ But one need not exhaust administrative remedies where, as here, "the power of the agency to act at all under the statutory scheme it is charged with administering" is being challenged.¹⁷ Because the Trust challenges PERB's jurisdiction over its personnel, it is not required to exhaust administrative remedies. The district court did not lack adjudicative power over the Trust's declaratory suit.

IV. THE ZOO TRUST IS NOT SUBJECT TO THE TERMS OF THE ACT

¶ 8 The express terms of the Act, as well as its stated intent, make clear that it is to apply only to those entities which the State of Oklahoma or a municipality created and controls.¹⁸ The Trust is recognized by law as a separate legal entity whose sole connection with Oklahoma City is that the latter is the Trust's beneficiary. That status gives the City absolutely no de jure control over the operations of the Trust. No de facto City control of the Zoo operations was ever suggested below and none is asserted before this court.

¶ 9 The provisions of 11 O.S. Supp.2004 § 51-202(12) — which set out a city's departments — govern solely those municipal employers whom the Act defines as "authorities, agencies and boards created by such municipalities." It is argued by AFSCME that, regardless of the fact that the term "public trust" is not used in any part of the Act's text, the Zoo Trust is indeed subject to the terms of the Act because it is an "authority" or "agency" "created by such municipalities." We disagree. It is crystal-clear that the Trust is neither a municipal authority nor was it created by the City.¹⁹ The trial court clearly did not err in ruling that the Trust is not subject to the terms of the Act.

A. The Trust Was Not Created By Its Beneficiary

¶ 10 The Trust was not created by the City but by its trustors.²⁰ The Oklahoma Zoological Society clearly is the trustor in the documents creating the trust at issue here and the City merely its beneficiary. To hold the City is the trustor as well as the beneficiary would confuse and distort the distinction between the two. The City's acquiescence in the creation of the Trust does not legally make it the creator of the Trust.²¹ The provisions of 60 O.S. Supp.2004 § 176 neither state nor imply that public trusts are to be viewed as created either by the State or by a municipality.²²

B. The City Enjoys No De Jure Control Over The Trust

¶ 11 Neither the trust document nor any statutory authority confers upon the City the right to control the Trust.²³ The right to control constitutes a sine qua non element of employment status. Without its presence no employment relation may exist in contemplation of law.²⁴ The trust instrument itself vests exclusive control over the trust in its board of trustees, not in the beneficiary City. The trust document also vests in the trustee the sole authority to hire and discharge Zoo employees and to make and perform contracts of any kind. Statutory law makes clear that the instrument creating a trust exclusively controls the relationship between the beneficiary and trustee²⁵ and ". . . a public trust . . . shall be presumed for all purposes of Oklahoma law to [e]xist as a legal entity separate and distinct from the settlor and from the governmental entity that is its beneficiary. . . ."²⁶ The necessary element of de jure control over Trust's employees is simply absent from the City.

C. The Trust Is Free From De Facto Control By The City

¶ 12 The record is devoid of any facts to suggest the City exercises control over the Zoo Trust's employees. The trust instrument itself does not confer any control upon the City.²⁷

¶ 13 The Trust's acceptance by the City confers on the latter no operational powers over the Trust which could be exercised before the Trust's legal dissolution. The record does not hence support an employment relationship between the Zoo Trust's employees and the City. The latter neither possesses nor exercises de facto or de jure control over the Trust's employees.

¶ 14 This court is mindful that a public trust may be declared to be "illusory"²⁸ upon a judicial finding of a sham fabricated by one to circumvent one's obligations under the Act. An illusory trust might be declared subject to the terms of the Act. Upon this record, the Trust does not exhibit...