Sharp v. Tulsa County Election Board

Petitioner, SHARP, A. Mark ELECTION

The TULSA COUNTY

BOARD, Respondent.

No. 82903.

Supreme Court of Oklahoma.

Sept. 1994. Corrected Jan. 1995.

As Granting Opinion

Supplemental

Rehearing 1995. Jan.

Rehearing Denied Jan. Tulsa, Blakely, Atty.,

Dick A. Asst. Dist. respondent. SUMMERS, Justice: original This is an action this Court seeking a Tulsa writ mandamus County Election Board. The Petitioner was for a candidate School Board whose name by had removed from the ballot been Election Board. We issued the writ and allowed the candidate’s name to remain on ballot, advising opinion an that would uphold now vacate the writ and follow. We the action of the Election Board. Sharp Mark filed as a candidate for office Indepen- on the School Board of the Jenks dent School District No. 5. No other individ- filing period ual filed for the seat. After the Tyler petition ended Hester filed a White County pro- with the Tulsa Election Board candidacy Sharp. testing the The basis of protest O.S.Supp.1993, § her was 70 urged Sharp pro- and 5-113.1. that She being hibited these statutes from a candi- date because his wife was a teacher Jenks School District. The Election Board agreed from the and removed his name bal- lot. Court,

Sharp petition then filed a with this asking for a writ of mandamus to order the place Election Board to his name on the January petition ballot. His was filed on 1994. The election was to be held on Febru- (1) ary Sharp that asserted in conflict and must be re- statutes were candidacy, solved favor his § 5-113 was an violation of unconstitutional his to be a candidate. These were questions impression. of first We issued writ of mandamus to allow the election to candidate, proceed Sharp as the opinion order that an would and stated to resolve the issues raised follow parties.

THE OF MANDAMUS WRIT Sharp presented argua Because of the of his federal consti ble claim violation Barber, Bartz, rights impression, tutional in a case of first Ron B. Robert J. Joe M. Bartz, Pruitt, him we chose to allow to remain on the ballot Fears and E. Scott Barber & Tulsa, pending resolution of the matter. A writ petitioner. our for to be related within the avoid confu- for school board issued to of mandamus degree by affinity consanguinity v. Bd. second ex rel. Settles and disorder. State sion any or to No D- other member of the board Dependent District School ofEduc. 38, (mandamus (Okla.1964) of the school district. The reason 389 P.2d rule, anti-nepotism expressly by a for the stat- the confusion caused issued to avoid statute, prohibit persons ed was to legislative permitting salaries enactment serving legislators). who were related from simultaneous- were also We teachers who board, need, ly person prohibit on the and to recognized the certain have also occasions, par- on the board while a close maintain the status of the employed by relative was the school district. pending of the merits of the ties resolution “grandfather” v. Section 113 also contains a Collegiate National Athletic Ass’n case. n (Okla.1976) Owens, (injunc- exception clause which creates an to this 555 P.2d quo); present rule. It allows a member of the preserve tion issued to the status Gen- 1110, term, Cook, board to continue his or her and to be Corp. Motors v. 528 P.2d eral (Okla.1974) (writ terms, prohibition elected to successive even if he or she 1114 of denied to another board member or to a quo). This Court has is related to maintain the status employee.1 authority to issue a writ of mandamus school district questions publici juris, or when when the are employment Section 5-113.1 deals with the exists so that a refus- some unusual situation employ- of teachers and other school district jurisdiction great a al to exercise would work they ees if are related to a board member. justice. v. wrong or a denial of Clark War- Again, prohibits employment statute ner, 204 P. Okla. degree persons of related within the second Ross, v. 76 Okla. 183 P. State consanguinity affinity of or unless the em- (1919). The writ of mandamus here was ployee already contract or is under otherwise necessary prevent possibility of a con- to by employed the school district at the time injustice. stitutional the board member is elected. A teacher or employee may in the latter situation continue THE OF STATUTES CONSTRUCTION employment. goes pro- to Section 5-113.1 on any that member who is related legislature amended the stat- vide board degree employee within the second to an dealing nepotism school districts. utes any personnel O.S.Supp.1992 prohib- participate shall not matter Title 70 Section member, litigation involving employee.2 or a candidate or related ited a school board full, statute, Any member of a board of education who reads: provisions shall be violates the of this section affinity consanguini- § 5-113. Relation or subject penalties prescribe by Sections ty —Prohibition 485 and 486 of Title 21 of the Oklahoma Stat- eligible person to a candidate No shall he be Added) (Emphasis utes. education he or she or serve on a board for of if gov- currently employed by is the school district reads in full: by the board 2. Section 113.1 education or is related erned of degree by affinity or consan- within the second by consanguinity § 5-113.1. Relation or affin- guinity any to other member the board of of ity prohibited board with school member any employee the school education or to of Exemptions—Exec- employment or contracts — education, it governed by district the board of bargaining utive sessions of board—Collective pro- being purpose both to of this section agreements persons are related within the sec- hibit who herein, provided Except A. as otherwise no degree by affinity consanguinity or from ond serving simultaneously employed put person be or under contract of on the same board person that is related to a a school district if any education of school district of this state the board education that school member of prohibit persons of of and to who are related within consanguini- degree the second district within affinity degree consanguinity of the second of or ty affinity; provided, employee or a teacher or to an ing a school district from serv- of employed already under contract to or otherwise governing on the of education board by the school district at the time a member employed. school district while such relative of such teacher or to the board education whom prohibitions apply prevent These shall not to of serving employee is so related is elected or shall serving members boards education who are of of provid- eligible employment; to continue the serving September the term from for further, employee already a under ed teacher succes- which were elected or employed by they may contract to or otherwise the school be elected. sive terms for any expressed and 113.1 state that ture its intent in the statute and Both Section expressed. City of the rules shall be sub- it person in violation that intended what it (misdemeanor) penalties set forth ject Dept, Chandler v. State ex rel. Human Serv., 1352,1354 (Okla.1992); §§ 485 and 486. These sec- in 21 O.S.1991 839 P.2d Hum- guilty (Okla. any person provide that phrey Denney, tions also 151 P.2d v. 1988). be removed from violating these rules shall

office. present it case is not difficult

Sharp argues that these two statutes determine the intent of Sections 5-113 inconsistent, pro legislature Section 5-113 because 5-113.1. The intent of the was to candidacy person a related to an prevent nepotism hibits the within school district district, while Section employee of the school between the school board members and its it is not expressly states that intend employees. 5-113.1 policy teachers and behind candidacy person prohibit interest, ed the statutes is to avoid conflicts of Tyler on a of education. seat board appearance favoritism and the of favoritism. urge County Board the Tulsa Election possible, If statutes are to be con inconsistent, that Section 5- the two are not strued so as to render them consistent with eligibility requirements of 113 deals with the Freeman, Macy ex one another. State rel. candidates, while school board members and 147, 151 (Okla.1991); 814 P.2d Eason Oil Co. re deals with Section 5-113.1 (Okla. Comm’n, Corp. P.2d employees. and quirements of teachers 1975). duty It is the of this Court to recon statutory rule of The fundamental statutes, provisions cile the different of as far ascertain the intent of the construction is to practicable, only to them not as make consis enacting construing legislature in the law and harmonious, give tent and also to but give effect to this intent. The so as to intelligent effect to each. Inexco Oil Co. v. construed to provisions, possible if must be Comm’n, (Okla.1981); Corp. 628 P.2d 362 gether give force and effect to each other. to Co., Trapp Fargo Express v. Wells Okla. Corp. Public v. State ex rel. Serv. Co. (1908). 377, 97 P. 1003 If two constructions Comm’n, (Okla.1992); 842 P.2d possible, prefer this Court will the one Brewington, 829 P.2d 15 Pump TRW/Reda provi conflict that avoids between the two (Okla.1992). legislative intent is deter The Co., P.2d sions. Roach v. Atlas Ins. Life language of the statute in mined from the (Okla.1989). general purpose. Oglesby v. light of its Lib (Okla. Co., Sharp’s statutory argu erty 832 P.2d construction Mut. Ins. 1992). legisla- may only if in presumption A arises that the ment succeed one sentence already serving relating employee; pro- tion to said teacher or district or a board member the however, may relationship contin- may time the is established vided the member vote on col- employment No ue in said or service. member bargaining agreements the renewal lective or resigned the of education who has of board group necessary of contracts as a if the vote is or her term from the board before his has quorum a of the education to form board of expired may reappointed be to the board to If more than one member of the members. complete a of his or her term if remainder board of education is related to a teacher or resigned employee to the teacher or related employee, the minimum number of those degree the board within the second member of necessary quorum members which is to form a consanguinity affinity put of under con- or be allowed to vote. Each board of edu- shall employed by the school dis- tract or otherwise adopt policy establishing cation shall a written resigned. trict after the board member may procedures such a vote on when member may exempt per- State Education Board of on the renewal of contracts or collective bar- upon provisions son from the of this subsection gaining agreements. Nothing herein shall be person request or local

written from that any person ineligible to be- construed to make board of education. come a candidate the board education. education who is No member of a board of Any B. member of a board of education who related to a teacher or other of the provisions violates the of this section shall be degree district within the second of consan- subject penalties prescribed by Sections guinity affinity participate in or shall attend or any regular 485 and 486 of Title 21 of the Oklahoma Stat- the board or executive session of Added) any personnel litiga- (Emphasis utes. held to consider matter or § prohibition ineligible in 5- 5-113 he is to be a candidate for § cancels out the 6-113.1 board, “Nothing it is That sentence is herein shall the school unless unconstitutional. any person ineligible to to make construed THE CONSTITUTIONALITY of edu a candidate for the board become THE OF STATUTES analyze requires us to cation.” This meaning “herein.” “Herein” as of the word argument Sharp’s second is that if legal phraseology is a locative ad used subject he is to Section it is unconsti verb, meaning its is to be determined and equal protection tutional in that it violates his single It refer to the from the context. rights impinging right on his abe article, section, chapter, or to the or to the office, political burdening candidate for in which it is used. to the whole enactment right registered to vote of all the voters Hobart, City 27 P.2d Adams v. by limiting district their choice Cox, (Okla.1933); 142 F.2d Coal Co. urges Gatliff candidates. He that it is a violation of Cir.1944). (6th applica This rule is equal protection rights his because the stat of a document as well ble to the construction ute, clause,” “grandfather in its treats an Estate, re Pearson’s as of statute. differently incumbent board member 451, 453 As we read Cal. 33 P. other candidates. “herein”, it is that the two sections clear Supreme on The United States Court has 5-113.1, § used the critical sentence many question confronted occasions only, relates to that section and not to the constitutionality of state election laws entire article on School Districts and Boards regulating laws be a commencing §at of Education 5-101. political analysis begins candidate. analysis

Our is that Section 5-113 deals vote, right recognition requirements with the for school board can- political party to be associated with a didacy, whereas Section 5-113.1 focuses political and the to be a candidate are hiring employees of the school district. important rights in our and invaluable de specifically Section 5-113 states who is ineli- Takushi, 428, mocracy. 504 Burdick v. U.S. gible candidacy. specifi- for Section 5-113.1 2063, -, 2059, 112 119 L.Ed.2d 245 S.Ct. cally employed by states who be the (1992). right precious is more in a free “No school 5-113.1 states that it district. Section having country than that of a voice in the prevent is not to be construed to an individu- of those who make the laws under election being al from a candidate. But that state- citizens, which, good we must live.” Wes allowing family ment does not lend itself to Sanders, 1,17, 526, berry 376 84 U.S. S.Ct. for (1964). members to be candidates school board. 535, 11 L.Edüd 481 Instead that it is an acknowl- we determine Primarily, types two different of cases edgement eligibility that school board re- (1) emerged in this area: “ballot access” have quirements governed by separate are stat- candidate’s access to cases which limit the ute, fact, namely Section 5-113. it is clear (2) rights” the “voter’s which ballot cases behind 5-113 was to intent Section ability partici- limit the of the individual to eligibility forth re- determine and set voting process. Athough the two pate quirements seeking for to run for individuals different, clearly Supreme Court has a seat on the school board. We find that the voting rights to which “minimized the extent provisions two are consistent with one anoth- distinguishable from ballot access cases are er. cases, stating rights of voters and that ‘the

Furthermore, rights not lend them- we find that it is Section 5- of candidates do Burdick, separation.’” governs Sharp 113 this case. did not selves to neat 504 2065-66, district; at-, quoting 112 at employment seek with the school he S.Ct. U.S. Carter, 134, 143, Thus, sought 92 an elected seat on the board. Bullock v. 405 U.S. S.Ct. 849, 855-56, subject ap- provisions he is of Section 5- 31 L.Ed.2d 92 candidacy, According parties, proaching “it is 113. to the briefs of the restrictions light Sharp’s wife is a teacher with the Jenks essential to examine a realistic impact Independent District. extent and nature of their on voters.” School Under Section 842 Celebrezze, 780, 786, eligibility 460 States on candidates’ U.S.

Anderson v. for 1564, 1568-69, impose constitutionally suspect bur- 75 L.Ed.2d 547 ballot 103 S.Ct. Bullock, (1982) rights 405 U.S. at 92 dens on voters’ to associate or to quoting among choose candidates ... To achieve S.Ct. at 855-56. elections], have enacted [fairness States Although right to be a candi complex comprehensive and sometimes certainly important right, it not an date is provision election codes. Each these absolute, escape regulation by all and cannot schemes, governs registra- it whether Burdick, -, 504 at 112 U.S. the state. voters, qualifications tion and the selec- 2063; v. Socialist Workers at S.Ct. Munro candidates, eligibility tion and or the 189, 193, 533, 536, 107 S.Ct. Party, 479 U.S. itself, voting inevitably process affects —at (1986). Common sense dic L.Ed.2d 499 93 degree least to some individual’s —the government state must struc tates that the right right to vote and his to associate candidacy to a certain ture elections political others ends. Neverthe- degree. practical matter there must “[A]s less, important regulatory in- the State’s regulation of elections if a substantial be justify generally terests are sufficient if some sort of fair and honest and are to be reasonable, nondiscriminatory restric- chaos, order, accompany is to than rather tions. Brown, processes.” Storer 415 democratic Anderson, 1274,1279, 788, 103 724, 730, 460 at at 1569- 39 L.Ed.2d U.S. S.Ct. 94 S.Ct. U.S. added)4 Burdick, (Emphasis enjoy a 504 at The states see also U.S. Furthermore, -, power” regulate elections and at 2063. “breadth 112 S.Ct. candidacy, provided power this is to exer has regulation of candidate Equal rights the confines of the Protec impact on the of voters. Bull cised within indirect Bullock, ock, at 855-856. tion Clause. 405 U.S. at at S.Ct. U.S. Here, right at 851.5 the absolute to vote S.Ct. it is not it is the implicated, but vote which is “equal protection” analy Traditional See, e.g., Duke v. particular candidate. for a requires sis there be a fundamental (11th Cir.1992). Cleland, 1526, 1531 F.2d suspect strict right or a classification before to vote is funda Clements, While employed. scrutiny will be mental, right to be a candidate is not. 2843-44; Anto 102 S.Ct. at San U.S. 957, 963, Fashing, 457 U.S. Clements v. Indep. Rodriquez, 411 nio School Dist. v. 73 L.Ed.2d 508 S.Ct. 36 L.Ed.2d 16 U.S. S.Ct. (plurality opinion); see also Bullock v. Car (1973).6 In a situation as the one at such ter, 143, 92 at 855-56.3 The 405 at S.Ct. bar, U.S. impinge on a where the statute does not regulations “tending sets fact that a state right, the classifica fundamental and when limit the field of candidates from which vot legislature is not based on a tion used the ... not of com might ers choose does itself class, overlay suspect the of constitutional Bullock, 143, pel scrutiny.” 405 U.S. at close principles governing ballot access is called 855-56; Celebrezze, Anderson v. 92 S.Ct. at play. into 788, 460 at 103 S.Ct. at 1569-70. U.S. Thus, considering a chal

Although rights of voters are funda- when these law, mental, lenge a court must imposed by restrictions the to a state election not all Rhodes, 23, Hagelin Williams v. 393 U.S. 89 3. Dr. President Commit- 5. See also See also John Graves, (D.Kan.1992); F.Supp. 5, 1377 tee v. 804 24 v. Corn S.Ct. 21 L.Ed.2d Evans (D.Hawaii F.Supp. Cayetano, Fasi v. 752 942 419, 1752, man, 398 U.S. 90 S.Ct. 26 L.Ed.2d 1990). (1970). 370 recognizes the neces- 4. The Federal Constitution 7, Anderson, 460 U.S. at 786-7 n. 103 S.Ct. regulation sity of elections to insure of a state's 7, Supreme recognized Court process electing at 1568-69 n. of fairness in the democratic I, 4, cases, representatives. Art. Section the Court has senators and that in a number of election provides may prescribe 1 that the state right” cl. the issue under the "fundamental decided "Times, holding Places and Manner of Elections Equal analysis. strand of Protection Representatives.” for Senators and

843 magnitude insignificant, justifica- and of the were while the state’s weigh “the character injury rights protected by provisions tion for the were reasonable and asserted nondiscriminatory. provisions and Fourteenth Amendments were not First vindicate”, against candidacy; the in- plaintiff potential seeks to an absolute bar to enacting provi- change employment terests of the state candidate could status to Burdick, at-, eligible. 112 sions. 504 U.S. S.Ct. become 2063; Party, Tashjicm Republican 479 at 544, 208, 213-14, prescrib Reasonable classifications 93

U.S. S.Ct. (1986). ing qualifications, candidate such as those There is no absolute L.Ed.2d 514 upon person’s age, integrity, scrutiny, based train requirement that strict or other ing, citizenship, generally residence and have scrutiny, employed. rigor- of level be Id., upheld. citing been Kramer v. Union inquiry depends of the on the extent ousness District, 621, 625, Free School U.S. to which the law burdens constitutional 1886, 1888, (1969), S.Ct. 23 L.Ed.2d 583 Mat rights. “litmus-paper There is no test”— Educ., 399, Spencer v. ter Bd. 39 A.D.2d self-executing is not and no “the rule is sub- of (1972), 334 N.Y.S.2d 783 Landes v. Town judgments hard that must stitute for the 417, Storer, Hempstead, North 20 N.Y.2d at at made.” U.S. S.Ct. N.Y.S.2d 231 N.E.2d 1279.7 deciding When whether these limita every limitation or Not incidental constitutionally permissible, tions are “it is burden on the to vote to be light essential to examine a realistic “subject stringent to a a candidate is stan impact extent and nature of their on voters.” Bullock, at dard of review.” U.S. Bullock, 405 U.S. at 92 S.Ct. at 851. 851; McDonald v. Bd. Election S.Ct. Brown, In Storer v. 415 U.S. 94 S.Ct. Comm’rs, 1404, 22 394 U.S. 89 S.Ct. (1973), Supreme 39 L.Ed.2d 714 (1969).8 impos L.Ed.2d 739 When the state upheld regulations Court several California nondiscriminatory regulations, es reasonable eligibility requirements. which set These re- regulation the state’s interest the elec quirements prohibition included: of can- process generally justify toral will suffice to didacy independent if as an the individual has Burdick, at-, the restriction. 504 U.S. registered party been with a less than 12 2063-64; Anderson, 112 S.Ct. at 460 U.S. at election, primary preceding months 788, 103 S.Ct. at 1569-70.9 (2) nominating petitions containing signa- particularly Fashing Clements v. in- tures of at 5% of the number of voters least Clements, structive on this issue.10 two voting preceding general in the election. provisions California state constitutional upheld eligibility The Court both of these questioned. provisions regulated were These candidacy. requirements holding, In so political of a candidate re- legitimate stated that states have a Court quiring resign any public that the candidate regulating the number of candi- interest running office before for election for another clogging prevent dates on the ballot to office, by requiring that certain officers machinery election and the confusion of vot- complete declaring their terms before candi- ers. Id. at 732. dacy for another elected office. The Su- preme Court stated that the burdens on the The Tenth Circuit addressed a similar is- plaintiff’s First and Fourteenth Amendments sue Rainbow Coalition v. Oklahoma State Blumstein, plurality opin- 7. See also Dunn v. 405 U.S. 10. We realize that Clements is a 995, 1005-06, ion, 92 S.Ct. 31 L.Ed.2d 274 similarity but find that of situations requires its consideration. courts have Federal Marino, (2nd 8. See also Fletcher v. 882 F.2d 605 See, Marino, e.g., v. relied Clements. Fletcher Cir.1989); (2nd Cir.1983); Wallace, Unity Party v. 707 F.2d 59 8; supra Maryland in n. Dixon v. State Bd. of Tribe, L. American Constitution- Laws, (4th Cir.1989). Election 878 F.2d 776 (2d.Ed.1988). §§ al Law Kezer, (2nd 9.See also LaRouche v. 990 F.2d 36 Cir.1993) (statutes upheld regulated which ballot by minority party). access a candidate of a (10th Cir.1988). Bd., plaintiff claimed that the statute was arbi- 844 F.2d 740

Election trary. disagreed, stating court that the de- contended that were plaintiffs legitimate served a interest in avoid- statute equal protection under statutes which nied ing conflicts of interests. by minority po- process governed the by recognized the state. parties are litical (2nd Marino, In Fletcher v. 882 F.2d 605 the statutes denied them They urged that Cir.1989), prohibited certain munici- statute began its The court access to the ballot. employees being from pal and officials school noting that the United States analysis by Using members. a standard less than board compel- demanded a Supreme “neither Court scrutiny, strict the court held that this stat- that the state nor insisted ling state interest governmental ute ensured fairness service. has achieved this end demonstrate it at 612. The court noted that if an indi- Id. Id. at 743. The means.” least restrictive member, to be a school board vidual wanted seeing that the demo- an interest state has completely prohibited from he or she was not smoothly and enact processes run cratic running. only give up The individual need goal. laws legislation to facilitate this State municipal position eligible to be the current candidate, he or she requiring that a before to run. candidacy, signa- eligible for submit can be present In the case we are concerned with repeatedly showing support, have been tures anti-nepotism prohibits statute which can- Fortson, 403 U.S. upheld. v. See Jennets didacy if the individual is related within the 29 L.Ed.2d 91 S.Ct. degree to a school or anoth- second Herschler, Party 746 F.2d 656 Populist v. Supreme Court er board member. Under Cir.1984). (10th upheld The Tenth Circuit guidance, must first look to the extent we constitutionality statutes of the Oklahoma degree imposed upon limitation candi- access. regulating ballot Burdick, at-, dacy. at 504 U.S. S.Ct. 213-14,107 2063; Tashjian, 479 S.Ct. U.S. the issue of New York has addressed prohibits only at 547-49. The statute indi- eligibility requirements on candi whether are related within the second viduals who were violative dates for school boards degree consanguinity. It limits that equal protection. The court held period family only during the time that a candidacy requirements regulation of state’s employed the school district or member In Rosenstock Scar was constitutional. is a member of the board. It is a non- inge, 40 N.Y.2d 388 N.Y.S.2d discriminatory prohibits statute which cer- regula (Ct.App.1976), the state’s N.E.2d eligible being from for candi- tain individuals barring candidacy of individuals who tion dacy. to other members on the board were related upheld. regula was The court held discriminatory Sharp argues that it is a infringe directly tion on the did not it treats incumbent board mem- statute as vote, indirectly imposed on the but differently prospective from candidates. bers by narrowing eligible candidates. the field that members who The statute states board test, the court Applying the rational basis legislation serving at the time this were preventing held that the state’s interest exempt prohibition. enacted are from this might arise conflicts of interests which Supreme found no case in which the We have family the same school two members on “candidates” to the status of Court elevated uphold the constitu board was sufficient to deserving spe- suspect quasi-suspect class tionality at 719. regulations. of the Id. Equal protection. cial “The Protection leeway allows the States considerable Clause Both the First and Circuit Courts Second legislation may appear to affect to enact Appeal upheld have statutes similar similarly people differently.” Clem- situated Lehman, 728 Campbell one at bar. ents, 962-63, at 102 S.Ct. at 2843. 457 U.S. (1st Cir.1984), brought plaintiff F.2d 49 the enacting challenging prohibited As for the state’s interest suit a statute which statute, intent is clear from by anti-nepotism blood or the person was related who to body of 5-113: And that is marriage the school from the Section to an of and prevent potential conflicts of interest being a candidate for school board. The 845 upheld department’s Ninth Circuit the sheriff appearance of favor- favoritism and the avoid family holding, members policy nepotism. could arise from of no so the itism which Other employees of each other. apply scrutiny court refused to strict for its upheld similar statutes. states have Equal analysis, ap- Protection and instead plied the rational basis test. The court con- Robins, 841 City Warner Parks of policy cluded that the was within constitu- (M.D.Ga.1994), F.Supp. 1205 the federal dis- tional boundaries. municipal police depart- upheld court a trict policy prohibiting nepotism within ment’s of urges Sharp also that Section 5-113 is department. urged Plaintiffs unconstitutional because the state’s interest abridged right to policy the fundamental by could have been furthered less restrictive marry. disagreed, holding that The court argument means. This fails because suspect policy implicate did not a class scrutiny under the strict test is the state marriage only inci- right of and affected required to use less restrictive means. dentally. governmental “If action ‘does not Anderson, 788-89, 460 at 103 at U.S. S.Ct. right a fundamental or discriminate on affect balancing required And in the 1569-70. test classification, suspect ac- [the the basis of a Anderson, plaintiffs rights rationally upheld] long is as it is tion so weighed against the state’s interest. legitimate governmen- furthering related to statute, 5-113, ” We hold that the Section 1213, quoting tal interest.’ Id. constitutional. The state’s interest in avoid- Inc., Scientific-Atlanta, 971 Henderson interest, ing avoiding of conflicts favoritism cert, (11th Cir.1992) 1567, F.2d 1574 de- favoritism, appearance of is sufficient and the —nied, -, 95, 114 S.Ct. 126 U.S. uphold legitimate regulation to of candi- (1992). L.Ed.2d 62 The court concluded dacy. this Court holds sacred the While holding policy munici- furthered the participate political to vote and to in the pality’s avoiding interest in conflicts of inter- candidate, recognize process as a we also est, appearance avoidance of the of favorit- that the latter is not an absolute nor funda- ism, family of conflicts. The and avoidance may impose right, mental but that the state rationally objectives, policy, related to the reasonable, non-discriminatory regulations. upheld. find 5-113 to one of these We Section Education, Townshend v. Board 188 of reasonable, non-discriminatory impositions. 418, (1990), presented 396 185 W.Va. S.E.2d challenge policy pro- the school board’s CONCLUSION hibiting nepotism. Again, plaintiffs policy claimed that the interfered with their case, procedural posture of this cou- marry. fundamental The court disa- pled upholding with our of the constitutional- majority greed pointed out that a ity requires that we make Section nepotism question courts who addressed the holding thirty days from the this effective pre- upheld policies.11 policies had opinion date the becomes final. We do so to appear- vented conflicts interests permit Sharp resign his office without ance of favoritism. facing penalties attached to the violation Norte, 5-113.12 The writ of mandamus City In Parsons v. Del 728 F.2d Section cert, (9th Cir.1984) denied, vacated, 846, previously issued is and the Peti- 1234 469 U.S. 158, (1984), ineligible on the 105 S.Ct. 83 L.Ed.2d 95 tioner stands to serve School cert, 612, denied, (9th Cir.1984), Independent 11. Keckeisen v. School District 728 F.2d 1234 cert, denied, 1062, (8th Cir.1975) 158, 846, (1984); 509 F.2d U.S. 105 S.Ct. 83 L.Ed.2d 95 57, (1975); Co., 46 L.Ed.2d 51 423 U.S. 96 S.Ct. F.Supp. v. Prudential Klanseck Ins. Fowler, (D.C.Cir. Cutts v. 692 F.2d (E.D.Mich.1980); Thompson v. Motor Sanborn’s 1982); Co., Libbey-Owens-Ford Yuhas v. Inc., Express N.J.Super. 382 A.2d- 53 cert, denied, (7th Cir.1977), F.2d 496 435 U.S. Hut, (1977); Manhattan Inc. v. New York Pizza 98 S.Ct. 55 L.Ed.2d 531 Har- Board, Rights Appeal 51 N.Y.2d State Human Airlines, (8th per v. Trans World 525 F.2d 409 434 N.Y.S.2d 415 N.E.2d 950 Cir.1975); Community Southwest Action Council Adm., Community F.Supp. 289 Inc. v. Serv. §§ 12. See 21 O.S.1991 485 and (S.D.W.Va.1978); County, Parsons v. Del Norte § thirty days this clause contained in 5-113 was amended to from the date effective Board anti-nepotism] prohi follows: “[The final. read as ruling becomes apply prevent bitions shall not to members of LAVENDER, V.C.J., C.J., and serving Sep on boards education who HODGE£ WATT, JJ., SIMMS, serving concur. tember 1994 from the term for added). they (emphasis were elected.” WILSON, JJ., ALMA and HARGRAVE Basically, petitioner argues plain words in concur result. apply to him he of the amendment because serving September on 1994 a term on KAUGER, JJ., was in concur OPALA and in the school board for which he was elected part. part; dissent February agree amendment 1994. We applies petitioner’s OPINION to situation.1 SUPPLEMENTAL REHEARING ON American Insurance Association Commission, 745 P.2d 737 State Industrial LAVENDER, Justice: (Okla.1987), on there is we held unless review Petitioner, requested Sharp A has Mark liberty property which re- some or interest opinion September rehearing of our dated quires apply to the accrued or vested us to County Respondent, Tulsa Election controversy rights in the law force at a Tyler protestant, Hester White Board point prior to most recent fixed time its respons- opportunity to file were afforded change, controlling an amendment of statuto- petition by of this Court. es to the Order appellate ry law between the trial court and any pleading waiving re- Respondent filed a compels ap- appellate decisions court to sponse protestant response. filed no pertinent law. ply the latest version of the We, therefore, on this matter without rule principle applies Id. at 740. our view this respondent protestant. responses from to the instant matter. asks for modification of our Petitioner opinion allow him to serve out the remain- to primary goal statutory con der of his term as a school board member to and follow the inten struction is ascertain He on a public the Jenks schools. relies Legislature. tion of the Ledbetter v. Okla O.S.Supp.1993, § recent amendment to 70 5- Beverage homa Alcoholic Laws Enforcement support position. pertinent (Okla.1988). 113 to his Commission, 764 P.2d approved amendment was June 1994 and Further, statutory cardinal rule of con can at 1994 Okla.Sess.Law Serv. be found begin language struction is to with the used O.S.Supp. § at 70 Ch. 8 and is codified and courts should not read into a statute grant rehearing § 5-113. and is- We exceptions Legislature. made Id. not supplemental opinion for the limited sue this Here, § language of amended 5-113 ex holding petitioner purpose of be allowed pressly provides anti-nepotism pro remainder of his term based serve out the prevent visions of the statute shall not mem § on the recent amendment to 5-113. serving bers of boards education who were 1, 1994, capacity September in that on from initially grant Between the time we serving the remainder of the term for which requiring respon ed the writ of mandamus exceptions were elected. No are made place petitioner’s dent to name on the ballot Legislature. for the school board election and issuance Although probably opinion vacating allowing petitioner our that writ and most on petitioner resign his seat on the board a de member of the board facto thirty days September the date our the fact is that he was within final, Legislature on such opinion becomes as school board member position change § Petitioner was in no different amended 5-113. The relevant date. pertinent “grandfather” September 1994 from other school here is that agree petitioner's statutory authority allow effect we have the to and should 1. In that we argument unnecessary out the remainder of his term in the it is for us to discuss or him to serve equitable argument public. interest of the rule on his alternative member who was violation of the board 5-113, §

anti-nepotism provisions of but was Fred A. SCHNEBERGER Zola serving Schneberger, Plaintiffs, as a board member on said date. petitioner’s difference case was allowing him that we issued a writ to be CORPORATION, APACHE Defendant. for such office because someone candidate (Hester No. 79826. Tyler) contested his candida- White difference, view, cy. in our is insuffi- Such Supreme Court of Oklahoma. non-application warrant of the new cient to Oct. 1994. “grandfather” petitioner. date to Rehearing Denied Jan. by extending line here is that The bottom “grandfather” Septem- clause date from 1, 1994, September Legis- 1992 to ber plainly expressed

lature its intent to allow September

those board members then in violation of who were §

anti-nepotism provisions of to con-

tinue to serve the remainder the term for view, In our were elected. this expressly applies petitioner

amendment serving as a board

because he was member

on such date.

Accordingly, grant petition we for re- §

hearing, apply amended 5-113 to this mat- Supplemental Opinion this

ter issue On

Rehearing purpose holding for the limited petitioner be allowed to serve out the

remainder of his term as school board conformity petitioner

member. herewith resign

need not his seat on the school board penalties

to avoid the attached to violation of ineligible

§ 5-113 and he is not to serve on thirty days

the School Board effective opinion September

from the date our Except

1994 becomes final. for the modifica- opinion September

tions out our set herein unchanged. 1994 remains IT OR- IS SO

DERED.

Case Details

Case Name: Sharp v. Tulsa County Election Board

Court Name: Supreme Court of Oklahoma

Date Published: Jan 31, 1995

Citation: 890 P.2d 836

Docket Number: 82903

Court Abbreviation: Okla.