*1 of this hold him liable for the costs in we by his brethren recognized He became disciplinary proceeding. having particular bankruptcy bar unique he known expertise and is. that re- IT IS THEREFORE ORDERED litigation. complex commercial abilities practice of suspended from the spondent be appar- Throughout his career became period for a in the State Oklahoma re- reputation was above that his ent Opinion year one date character, honesty, truth- proach. Good final. becomes by- to be integrity seem fulness and that re- IT ORDERED IS FURTHER Tom dealt with of all of those who words proceeding of this pay the costs spondent that Tom En- Everyone agreed English. $2,404.19 thirty within in the amount of likely candidate the least glish was Opinion final. days of the date this becomes complaint. ethical faced with a serious n * * * * * HARGRAVE, LAVENDER, V.C.J., SUMMERS, JJ„ ALMA WILSON presented witnesses evidence [T]he concur. clearly credible found to be who we consider- the instance under show[s] HODGES, C.J., part, dissents concurs “aberration”. appears ation to be a[n] part. En- unanimous that All were witnesses OPALA, J., whom SIMMS and repeat anything like glish never would KAUGER, JJ., join, dissenting. agree that there is and all this conduct pro- out much more severe I would mete public. danger to the discipline. fessional repeatedly empha has This Court purpose disciplin principle that the sized punishment
ary proceedings is preservation pub attorney, but
involved in the ex rel.
lic confidence bar. State Todd, 833 P.2d Ass’n v. Bar
Oklahoma (Okla.1992); ex rel. Okla State Evans, 747 P.2d Bar Ass’n v. homa SIMPSON, Petitioner, Sheila G. (Okla.1987). “Every lawyer is licensed person worthy public as a presented profes his public as to of the trust DIXON, Bryan Presid The Honorable C. integrity expertise.” ex sional Irregu ing Judge the Petition for over Samara, Bar Ass’n rel. Oklahoma Primary larities in the March (Okla.1984). considering re After P.2d 979 Three Councilman Election for Ward the evidence in spondent’s misconduct and City; Marti for the Oklahoma paramount poli that the
mitigation, we find Hayes, insuring integrity of the bar will cy of Cornett, Secretary; Jack W. li by suspending respondent’s satisfied 16, 1993 Pri of the March Contestant period one practice law for a cense to Three, mary Coun Election for Ward punishment in this year. We note that City, for the of Oklahoma cilman more severe were it case would have been Respondents. respondent’s prior exemplary con not for No. 81318. duct, respondent will probability professional mis commit future acts of Supreme of Oklahoma. Court public and the lack of threat to conduct May practice respondent continues to law. if Ap- an itemized The OBA has submitted
plication to Assess Costs amount
$2,404.19. Respondent has not filed response application
pleading *2 Dell,
Brian M. City, peti- Oklahoma for tioner. Mitchell,
Robert L. City, Oklahoma respondent Hayes. Marti Spencer, Prince, Thomas L. Thomas E. Slater, York City, & Oklahoma respon- dent Jack W. Cornett.
OPALA, Justice. original In this proceeding two issues are (1) tendered for our consideration: Is Art. 10, 7 of the Charter con- trary statutory procedure protest? an election protest Is elections controlled election.2 ties in the conduct governs the issuance of law that peti- original Simpson take moved to dismiss Cornett’s election? We certificate of case, argued the first untimely. answer cognizance tion as She negative second question prescribes a two- *3 writs, affirmative, deny leaving the day challenging the election deadline for the judge’s order. the trial undisturbed petition, and that Cornett’s results day conformity in filed on third to law, 8-109,4 came 26 O.S.1991 too late. THE OF LITIGATION ANATOMY petition hearing on the Cornett At initially Simpson was Petitioner Sheila irregularities. Simpson presented proof of at the the successful candidate determined objection stood on her to district court’s Tuesday, held March primary election she no evidence. “jurisdiction”; Council, City for the office Ward offered The trial court According to City. the an- in Oklahoma found mathematically made it irregularities 2,005 results, Simpson received nounced impossible to a winner and determine respondent only opponent, and her votes no- election to directed board Cornett, 1,994. Fri- On W. received
Jack compliance tify governor in with the 2:00 day following the election Cornett at judge challenging irregulari- 8-122.5 The trial protest filed p.m. petition alleging persons regis- the Secre- alleged written fraud with Cornett below that 104 2. peti- tary County Said City Election Board. Ward 6 were tered to vote in of Oklahoma accompanied by be a bond in the improperly permitted to in the Ward 3 tion must vote $5,000. Petitions primary, {26:8-119} of the election amount of al- and that winner question leging accepted mathematical cer- be in could not be determined with fraud shall not * * *" tainty. sought {26:8-109} a new election Ward 3. He irregularities Allegations of "230:45-7-2. (a) Simpson paragraph relies on second 3. may, Any to Petition be filed. candidate Charter, Art. of the Oklahoma § 7 infra election, following by p.m. Friday file an states: note which alleging irregularities petition in election " * * * Election Returns to Said Certificate of Secretary of the with the ” issued, stayed timely * * by ap- * filed be unless Board. challenge plication or to and notice contest set out in this The State Election Board Rules results, correctness of the announced within opinion were eff. December codified (2) following two next said promulgated pursuant are to rules These "** * general elections. O.S.1991 infra provide: 8-109 4. The terms of are: 5.The terms 26 O.S.1991 8-122 appeared "Any candidate whose name on conducted, event, hearing Primary, Primary General Election "In the after a Runoff or ballot, any request impossible to ... deemed determine individual authorized issued, be pursuant whom a certificate of election shall a recount Section of this p.m. Friday fudge notify may, any appropriate 5:00 ... shall title before election, secretary It shall then an contest the correct- tion board same. next secretary duty of said election be the the election board ness the announced results by filing petition appropri- notify of said decision. The a written with Governor alleging irregu- shall order a new election ate board. Contests Governor then election practicable permitted as as is larities or fraud shall not be conducted soon election, except are the contested those in which candidates same manner as candidates, provided seeking Nothing in this section shall the identical office. proved prohibit any proceedings fraud has been candidate whom be construed court, new election. authorized not be candidate district which are otherwise shall law, further, apply irregularities alleging an the above shall fraud in Provided votes, added.) resulting (Emphasis in tie which elections election.” provided by law." corresponding State Election Board Rules determined Code, added.) Administrative Title [Oklahoma corresponding Subchapter State Election Chapter The terms of the hereinaf- §§ Rule, 230:45-7-13, are: 230:45-7-2] ter cited 230:45-7-1 and possible New election pertinent part: "230:45-7-13. (a) Judge notify Secretary. Allegations fraud must "230:45-7-1. (a) Judge Any may, presiding District determines event the to be filed. candidate Petition election, impossible the winner p.m. Friday following to determine file a that it quest, con- that a certificate of Simpson’s dismissal election be issued to overruled (1) Charter is silent her cluding that board. Our protests and does pronouncement judge’s the conduct of leaves the trial rul- a deadline for a candidate’s prescribe ing undisturbed. (2) 56 of the challenge, makes laws of II applicable to election con- provided in the except as otherwise
tests SECTION 7 OF THE CITY CHARTER Charter, election contests conducted BE CANNOT CONSTRUED AS CON- “run judge and are by a state district TRARY THE TO 3-DAY PROTEST *4 board, (4) the through” county election PERIOD PRESCRIBED BY STATE interest in conduct- paramount state has a LAW throughout election contests uniform (5) the state and contests “must be uniform Facially, City Art. 7 of the Char- public have confidence in so that will ter is not intended to limit the time for knowing that their elections are conducted Its main bringing protest. an election trial stayed This court properly_” is to coordinate actions function of pending disposition judge’s order of the election boards in the several counties original proceeding. City where with Oklahoma located8 respect single to the issuance (a) Simpson court’s command seeks this of certifi- cate election to the candi- prohibiting county election board from of successful date. Section 7 (b) governor directing separate and notifying the trifurcated into election, County ap- of an or the names that should nish the Election Board other of ballot, pear Primary county part any particular on a Runoff Election he in which a ward of notify Secretary County copy Elec- is situated a shall of Election of Certificate of general primary {26:8-122} tion Board. Returns both the and elec- (b) Secretary notify Governor. When the tions. Secretary presiding Said Certificate of Election receives notice from Returns to be issued, (a), Judge, stayed by timely applica- District as set forth in he shall unless filed notify ruling challenge of the in order that tion and notice contest or to cor- Governor of results, {26:8— the Governor can call a new election. rectness (2) the announced within two of following days primary gen- next said and 122}” eral elections. provisions 6. The of Art. 5 of the Oklahoma of shall be executed Certificate Nomination City Charter are: jointly by County and issued each Election Applica- "Section 5. General Election Laws designating candidates re- Board involved ceiving two Except provided, ble. as in this Article X highest of votes at the number nominees, primary said election for the nomination of primary whose names election Mayor and the Councilmen and in the general appear at the elec- shall ballot general and canvass of returns and election be tion. Said Nomination to Certificate of relating proceedings issued, all other elections, whatever to said stayed by timely applica- unless filed primary general, gen- challenge either tion and notice contest or of applicable results, eral laws of this State the announced within correctness of primaries hereby adopted (2) following elections days elec- two next said put with the into full force effect tion. proviso pri- exception further that on the of Election shall be issued Certificate general mary party election ballots no jointly by County Election Boards each party designation appear conducting emblem or shall charged duty with the herein required receiving the names of all nominees who are the highest to the nominee appear to be on the ballot shall in one col- number of votes at the elec- umn.” Election tion in each ward. Said Certificate of (4) be issued within next four City The terms of Art. 7 of the Oklahoma 7. Re- the issuance Election Certificate of Charter are: turns election.” said Certify "Section 7. Procedure to the Re- supplied.) turns and the Issuance of Certificates of County City are estab- Each Election Board herein ward boundaries Election. 8.Oklahoma 19,715, duty conducting charged enacted March with the the elec- lished Ordinance No. 6, in The shall 1992. tions fur- A. (1) stages: certificate post-election returns, nomina- (2) certificate Returns The Certificate Election tions None certificate provides paragraph The first 7§ with the State’s of its conflicts county that every election board charged limit three-day statutory time for election give the election is to protests.9 election board partici
pates the certifi copy in the election returns.10 These certifi election cate part counties limit for the other in which For the text of the 9. municipality located are called protest, see 26 8- hereafter * * * supra note 4. the "affected Election Boards.” (e) Mailing returns. The Secretaries of the Charter, the Oklahoma 7 of County Election shall mail a affected Boards 7 was enacted in 1971. Section copy in their of the returns issuing copies of certificate Its reference to parent County counties to the *to the other returns night on the election. Results striking similarity process boards bears orally, communicated but certification (now prescribed § 1291 re- in 11 O.S.1971 except by using not made written returns. *5 pealed), provided: which County parent tabu- The Election Board shall county county of of “The board each election parent returns from the and affected late the in, juris- city said have which is situated shall certify the counties and results. See 230:40- * * *" city of elections and each election diction the 5-44. certify shall the returns to the other board “230:40-5-44. Certification issuing said elections. certify County of Election re- before certificates The Board shall to be based on the combined Said certificates govern- any municipal to the sults of election (Emphasis of votes both counties.” municipality of the for which the board only applied to with a § In 1971 cities held. of Election election was Certificates 20,000. City ap- population under by candidates shall be issued successful provision pears to have a similar for enacted County the the same man- Election Board in (first para- in Art. § itself County prescribed ner Officers. as is graph). purpose The of 11 O.S.1971 like {26:13-106}” Charter, of 7 of is to ensure that the July Certi- [amended 1992]. “230:35-3-91 participating county the boards election fying county results the vote election can tallies confirm before (a) night. night, On the Election election joint is election issued. certificate of County may certify Board ... the Election exchange The of information be accom- county is an of elections for which the results manner—namely by giving plished in this county....; affected (b) copies of the certificate election returns p.m. County Friday Election The participate in other counties that the election— following p.m. Friday at 5 Board shall meet longer necessary. appears to be no A new enact- involving multi-county each election ... laws, O.S.Supp. ment in 1974 election parent county which the is the election for successor, 13-110, and its 26 O.S.1991 county, provided that no contests election county directs that election board Chapter have been as outlined in filed municipality’s central where the offices are lo- County Subchapter this Title. The Elec- cated the election. The terms of 26 conduct possession must have in written tion Board its O.S.1991 13-110 are: county each affected before re- results from municipality “Elections for a which is located multi-county for which the sults of a election county in more shall be conducted than one parent county county be certi- is the shall by county county board of election ... fied. municipality’s are wherein said central offices (c) Disposition Reports. of Certification county located. The election board or boards signed, copy Certification One of each official county or of the other affected counties shall permanently Report shall be maintained necessary such assistance copies County Other Election Board. conduct election.” of an * * * shall be distributed follows. corresponding pertinent The terms (2) multi-county which the Rules, 230:40-5-65, 230:40-5-44 Election copy county, signed county one 230:35-3-91, is an are: affected Report mailed to shall be Municipalities In than more “230:40-5-65. of the Certification following county day parent county one (a) Supervision. ” * * * added.) (Emphasis election. municipality For a that is county parent This allows the county, than one election located more to conduct the election while board County be conducted Election county participating in municipality’s election boards central of- Board wherein affected simply supply County parent with the {26:13-110} This fices located. (returns). Since "parent is called certificates of election results Board hereafter only the elec- election board controls Election Board.” Election Boards one respec prescribe cates are to be issued to the do not contrary a limit §of three-day protest period. tive election boards the State’s within two days primary day election B. held.11 The Certificate of Nomination dealing Nothing language in the with the nomi purpose certificate election re- issuance of the certificate nation, paragraph described third turns abridges period designate is to the two candidates who protest. an election The terms of the garnered have the most primary votes paragraph second 7 are: compete general will in a elec “Said Certificate Election Returns election in this case primary tion. The stayed by timely issued, unless was, for all purposes, intents and application and notice contest filed Simpson election. and Cornett were the challenge correctness an- only candidates. results, nounced within two Although concerning next said no issue the certifi- nomination added.) court, cate elections.” before this significant to note paragraph clause, pertains The third two- also contains' the same stayed” “unless day limit for issuance of the certificate paragraph clause. This provides part: returns, modifies the verb “is- * “ * * Said Nomination sued” found in the first clause. The sec- Certificate of issued, to be stayed by timely unless clause, commas, ond is set off application and notice contest only contains filed reference challenge correctness protests. phrase “timely filed” has *6 results, announced (2) days within two reference to other law that regulates the said following primary next election.” filing time a protest. for Whether a certif- added.) icate election returns is issued before or utterly is protest an election If the drafters intended the clause to be after12 bearing upon irrelevant and has no on protest limitation the time an election is protest the time an must election be filed, to be it would not have been neces- filed. paragraphs Wehence conclude that 1 and 7, sary to mention this twice in for one § tion, appear longer necessary would may argued for While it be the "unless give parent copy stayed” the paragraph Certificate clause of the second in Art. 10, 7, 7, (results) county supra Election Returns to an affected would § note be rendered useless parent protest election board. This is so if a were allowed to filed the because be after returns, power ultimately certify now of a has issuance certificate election results Rules, unilaterally. illusory. is See contention at most When a State Election Board clause “unless,” 230:40-5-65(e) 230:35-3-91(a), supra; with starts the word it is used 26 as 13-106, contingency. § Kansas Structural Steel note 14. Com infra Inc., 88, Sons, pany v. L.G. & Barcus 217 Kan. 7, paragraph (1975); The first § 535 P.2d Graham v. Wichita Co., note as enacted in seems to refer to 26 Terminal Elevator 115 Kan. P. (now repealed), (1924); provided Dictionary, p. (6th § O.S.1971 234 which Law Black’s Ed.1990). part that municipal] (i.e., "... when the [in result If the event does not occur filing timely contests have all been application recorded from the coun- of a notice of con certificates, test) certify ter’s said Board triggered. ... shall the clause is not result_” quoted portion of 26 O.S.1971 arguendo Even if we assumed that the clause 234, supra, appears incorporated § have been pertain filing does to the time an election for O.S.Supp.1992 provides into which protest, stayed” easily the "unless clause could part: If, superfluous. example, be viewed for counted, all have county "When ballots been election boards county copy election board shall tabulate the votes issued a re- of the certificate election certify day (for the results...." turns on the instead of second first corresponding language For the Rule, State only contemplates Election Board that the certifi- ” 230:35-3-91(a) (c)(2), supra see note cate of election be returns issued “within two 230:40-5-65(a) (e), supra days), application and notice of contest could procedure certifying timely which outline the day for elec- filed second after (results). tion returns issuance the certificate election returns. election returns after the certificate of surplusage. clearly two clauses 1(b) from Art It is clear issued.14 interpretation and better more correct a certifi that the issuance of the Charter15 stayed” is hence “unless clauses the two election necessarily contin is not cate other than the Char- they refer to law certificate gent upon the issuance of the protest is to be time an election ter for the 1(b) returns. simply election Section paragraph three does filed.13 Because election certificate states that a to be protest election when an address days after the election. within six issued election, it cannot be primary filed consistent provisions are These Charter pro- abridging construed procedure, election with the state period. test county election board to wait requires the period time contests until C. p.m. 5:00 on the Fri expired, has i.e. at The Certificate of Election day the election.16 after of is the The certificate exists a state conflict between docu This is the critical tally. vote ficial ordi and a charter or enactment ment. the issuance express either nance when both contain does conflict with of that instrument implied provisions that are inconsistent According to the procedure. another. There is irreconcilable with one the certificate of paragraph fourth if one is silent on the issue no conflict to it.17 No provision in jointly by partici speaks is to be issued the other elec (1) certificate four 7 that deals with county election boards pating 13. This language shall be issued appears "No such lists or certificates paragraph to track the county (now election board or repealed), either of 26 O.S.1971 p.m. Friday next Election Board before 5:00 party provided nomina- candidate Primary, Primary following or Gen- Runoff may, office before eral Election." Thursday noon next provision does not conflict tion, We note that this protest with the "file a given interpretation to the sec- that is the issuance That section did not allow board.” 11(A),supra. paragraph of 7. See Part ond party nomination until of a certificate of after issuing copy paragraph refers to The second Thursday. on that The 1974 State noon terms of Election Returns. The changed protest primary, time for run- Code Certificate of *7 (a) only how the refer to § 26 O.S.1991 8-106 "any time off or election "certify county suc- election boards state and p.m. Friday next before 5:00 candidates,” (b) of election” "certificates cessful O.S.Supp.1974 8-109. The law re- § tion”. 26 (c) 8-103) (26 "certificates of § O.S.1991 8-109, unchanged, su- § mains see 26 O.S.1991 8-101). (26 For the § nomination” O.S.1991 two-day pra 4. The time limit note Rules, corresponding see State Election City Charter were doubtless that remain in the 230:40-5-44, supra terms of note 10. The They pre-1974 to track the state law. intended 10, 230:40-5-65(e), require supra affect- note are now out of date. copy county of the election boards to mail ed county parent election election results 14. The terms of 26 O.S.1991 13-106 are: § night the election. board on the law, county prescribed by "At the time certify 1(b) shall the results of election board pertinent of the § terms of Art. governing municipal election to the board of City Charter are: municipality was for which said election duty Elec- be the "... shall [I]t shall be issued Certificates of election held. respective each counties tion Boards of county candidates to the successful City corporate limits of The within which the board, as is in the same manner election situated, jointly City to issue of Oklahoma county prescribed for officers.” candidate, such within six after Although county parent election board ulti- Election, City a certificate date said General election, mately it is issues the certificate of proper as now form of election in due and conjunction with the done so in provided affected law." boards, supra 10. The fact see note 8-106, supra note 14. 16. See 26 O.S.1991 parent require § does not § 13-106 joint issue a election boards to affected Okl., Moore, 17. State ex City rel. Trimble v. presents real of election conflict certificate (1991); Medley, Vinson P.2d 898 Charter. 818 with the Okl., (1987); Moore v. P.2d 936 737 § 13-106 refers to 26 O.S.1991 Section (1977). Tulsa, Okl., P.2d 963 provides: 561
183 returns, (2) certificate nomination with the three-day time conflict filing protest. certificate can read limit for an election regu in conflict with the state election law filing lating pro an election Ill paragraphs Since in 7 test. none § CORNETT’S PROTEST IS GOVERNED speaks to the time an election BY THE PROVISIONS OF 26 O.S. protest, there is no conflict with state law. 8-109,20 WHICH IS PART OF § When a statute or law is sus THE STATUTORY REGIME THAT construction, ceptible to more than one it REGULATES PROCEDURE FOR given interpretation must be THE OF THE ISSUANCE CERTIFI- it frees from constitutional doubt rather CATE OF ELECTION fraught one that than would make with A. Placing fundamental-law infirmities.18 meaning Simpson presses § 5,21 The Provisions Of Art and Art § us—namely paragraph two of 7 con Okl, § 46,22 Const, Explicitly Com- § two-day time limit for an election tains Uniformity mand Statewide of Laws protest—would make that section vulnera That Govern The Conduct Of Elections challenge. to a constitutional We must ble Corruption-Free For A Ballot Process give will construc process The actual balloting— tion that is consistent our fundamen from its beginning through protest uniformity tal law’s mandate for a “free issuance of election certificate—is an ex equal” election.19 clusive state Our fundamental function. sum, if vary guarantees meant to law to all electors the right to § pertinent (Art. than to equal” 5)23 rather track the “free and (26 8-106, supra explicitly statutes note uniformity commands 14, 8-109, 4, 13-106, supra note keep pro the election-return 16), (Art. 5, the intent corruption 46).24 to enact non-conform- cess free of city regulation textually prohibits passage is not demon- Section respondent special strable. We hold that the regulating trial or local laws the con judge correctly interpreted 7 as not in duct The 46 elections.25 mandate con 21. 20. 19. fra. Const., are: Okl., P.2d fundamental and note P.2d Okl., Company v. Okl. Water Resources For an For the text State v. Okl. 596 P.2d 4. 595 P.2d pertinent explanation (1985); 530, of 26 O.S.1991 State Bd. For terms of (1987); Neumann (1979); of that mandate in our law, Ricks Property, Art. § Wilson v. see Part III in- v. Tax Bd., 3, Exploration § see Okl., Okl. 695 5, Com’n., Foster, supra Okl. 24. For the 23. For the Const., Const., For the or provided "The special *8 fixing Legislature see see opening [******] pertinent pertinent supra supra in this or changing authorizing: note 22. note 21. Constitution, terms terms not, of Art. except places Art. pass any 5, as otherwise 3, § elections, § 46, voting; 5, local Okl. Okl. Board, equal. "All elections shall be No 25. In Johnson v. State Election Okl. 197 free power, 211, 891, military, (1946), civil or shall ever interfere to 167 P.2d we had under 893 prevent right exercise of suf- scrutiny legislative only ap- a enactment free added.) frage_” (Emphasis plied nominating Tulsa 2, 4, See also the § terms of Art. Okl. Const.: County judges. we held the There statute in power, military, "No civil or shall ever inter- uniformity contest to § be violative 46 prevent right fere to exercise free County mandate because it set Tulsa nomi- suffrage by (Em- right.” those entitled to such nating apart applied district others and to from added.) phasis system plan it “a from the different 5, 46, pertinent law in the matter of the elections." 22. terms of Art. Okl. Const., added.) are: 184 implements provi- these constitutional elec prescribing
templates a law sions.30 uniform procedures that are tion conduct guar 5’s the State.26 Section
throughout City If the Charter were be construed equal” means antee of a “free prescribing different limits or deadlines right has qualified every voter would 46 protest, for a offend fairly have that vote and cast a vote special local against laws prohibition only counted.27 achieved This can City conduct election.31 an uniform, state-regulated proce through Tulsa v. Macura32 teaches that a charter of elections.28 dures for the conduct 46—because provision which contravenes § subject upon itself to a it addresses offices city creates While uniformity explicitly legislative mandat in officers the manner and can effect facially ed—is void. As we Sher noted in selected,29 charge takes the State are v. Norm Corp. City No. 2 wood Forest balloting prevent process an,33 city can neither shorten certifying ordinance procedure of from the deviation legislatively prescribed limi implied enlarge nor control is result. State so, period. city’s If it 5, uniformity-of-procedure tations were in the Art 46§ 3, authority exercise of would contravene 5 and inferred mandate v. Walker Similarly, 46. canvass. corruption-free of a guarantee City Moore34 we said that the notice protests regulating vitalizes The statute uniformity trary provisions city v. applications code. McMaster §of 46’s 26. For 348, 39, Inc., Okl., Wilkinson, mandate, Browning-Ferris, Neb. 351 145 15 N.W.2d Tate see v. McMaster, case, 1218, (1944). (1992); factually similarly Massey v. Farmers 1229 833 P.2d “ Okl., 880, (1992) (Opa legislature Group, P.2d 890 the court reasoned that '[w]here Ins. 837 affairs, la, result); J., affecting concurring Henry Corpora C v. has a law enacted 1262, concern, Commission, Okl, P.2d 1271 is of statewide such tion (1990) 825 but which V.C.J., concurring); precedence (Opala, action taken takes over Okl., 797, Muskogee, city P.2d under its charter.’” See abo v. 820 home rule Sands, Com'rs Martinez, (1991); through v. El & Local Government Sisson Allen Libonati 806 kins, Okl., 722, 3.17, (1990) (1981). (Opala, p. 728 P.2d Law 3-61 801 V.C.J., concurring judgment); Reynolds v. 816, 674, Okl., (1988); Macura, Porter, Pruden City 760 P.2d 822 v. 100 Tuba 186 Okl. 31. Okl., Grimes, 3) (1940); 725 P.2d Property (syllabus & Cas. Co. v. tial P.2d 269 Walker v. J., 1246, (1986) Moore, Okl., 1289, (1992); concurring); (Opala, Maule P.2d 1251 836 1293 n. 9 9, Okl., Norman, Corp. No. 714 P.2d Independent School Dist. No. 2 v. Sherwood Forest Okl., (1986). n. 30 See in this 632 P.2d 370 connection Roberts v. South Oklahoma pertinent terms of Art. Okl. 27. For the Okl., Trust, Hosp. 742 P.2d 1084-1085 Const., 21. For an historical see J., (1987) concurring). (Opala, guarantee explanation of our constitutional Okl., Maley, 806 P.2d see Jackson v. Macura, (citing City supra note Tuba C.J., dissenting). (Opala, 623-624 McIntosh, Okl. P. Adams, (1930); City Tuba v. governing the conduct of elections If the (1931)). offending P.2d In Macura uniform, significant problem kept required provision charter written notice those election boards which would face injury of one’s officials within munic- conduct concurrent elections several indispensable legal prerequisite for an action ipalities. municipalities one coun- If ten within damages bodily against city to recover day, ty to hold elections same were harm. very have election board could well *9 procedures for follow ten different Forest, city Supra the note 31. Sherwood 33. disparities protests. complexities The improve- principal a subdivision sued the practices. invite lax would in that context ment The court held that the bond. actions, five-year period contract limitations for III(B). Part 29. See infra two-year prescribed period in the rather than the ordinance, applicable city’s sidewalk was though fundamental-law 30. Even Nebraska’s city’s to recover on the bond. explicit action as in Art. command is Const., 46, supra Okl. note city appellate Supra the asserted highest court note 31. In Walker its held requires Claims Act municipal that the Governmental Tort election contest is a state that a func- filing tion, separate loss-of-con- governing notice of the derivative the and a statute time for spouse. held the precedence of a The court over con- sortium claim contest takes election requirements the Governmental Tort is in command municipal elections, all enlarged by Claims Act not be local employs the same machinery' to conduct law. city elections as it does for county state and questions. or officials
B. An election challenge part parcel of that process. election-return It address- Nondelegable State Function of Con- es itself irregularities, departures and ducting Elections Is Distinct From The prescribed deficiencies procedures Purely Municipal Regulat- Function of for casting ballots. The actual conduct The Manner In Which Elected Of- solely election is in the hands ficials Are Selected For Office State, very time a ballot is cast Our concern here is with the core when, point until reason, for lawful conduct—i.e., function of it is either validated or invalidated. process balloting. the actual This func (a) charter, begins opening polls city hand, of the on the other creates electors, (b) qualified casting to receive regulates elective offices and the man- ballots, (c) vote, (d) tallying ner in which elected officials are to be preservation and validation of the bal selected. These pre-balloting functions in- lots, (e) clude, alia, the certification of (a) determining inter what offi- (f) elected,37(b) results and the issuance of a certificate cials are to be there whether beginning of election. From its to the end partisan will be runoff38 or a or nonpartisan ballot,39 (c) that task constitutes an exclusive nondele- geographical gable state function by to be conducted area within the from which the selec- county supervi made,40(d) election boards35 under the tion is to be the time for holding sory authority Secretary (e) of the State the election41 and number Board, Election Board.36 The State which tions to be held. spouse’s damages preserved by Legislature implemented heavy claim responsi- its injured party’s bility uniformity by notice giving Secretary of claim which sub- stantially complied opinion "general with the Act. The supervisory the State Election Board city’s authority” notes that while the county notice-of-tort-claim over the election boards. The provides space form pertinent the identification of terms of 26 O.S.1991 2-107 are: loss, persons claiming city may a derivative Secretary "The of the State Election Board enlarge requirements by the Act’s either its administrative officer State provi- more detailed notice ordinance general supervi- Election Board and shall have form sions. sory authority county over the several Secretary may promulgate, boards.... Legislature’s recognition
35. The
of the funda-
repeal modify
regulations
such rules or
uniformity
clearly
mental-law
mandate is
re-
necessary
he deems
achieving
to facilitate and assist in
in the State
code
[Code].
maintaining uniformity
flected
seq.
1-101 et
Title
§§
XIII of the Code
application, operation
interpretation
provides
elections are to be
the state ... election laws and a maximum
(26
county
conducted
correctness,
election board
O.S.
degree
impartiality and effi-
13-101)
1991 §
and must be held at the same
ciency in the administration of the election
”*
* *
place
prescribed
and in the
laws;
same manner
added.)
county
the conduct of state and
elections unless
Hassman,
(26
37. Blinn
provided by
162 Okl.
force of a affect a they when only of sede state held that the framers in we Callahan exclusively lie deemed subject did not intend for the man the constitution local) All (or concern.44 municipal within infringe upon datory system49 primary yield to provisions must conflicting charter grant power to charter the constitutional the State’s Constitution charter-governed cities the time For cities. govern state functions45 and the inclusion of an election regulation the conduct of Nonuniform solely mu are matters balloting events absolutely and un plainly, elections nicipal concern. by the command interdicted equivocally support cogent reason tends Another law.46 our face fundamental election contests are a the notion that 5, 3, Legisla 5, and Art. Art. § § 46 Challenges to the election charters, ture, powerless city like much function. juris- within state-court solely returns lie of election delegate the core function 7, 1, provisions of Art. Okl. diction. § other than the conduct to entities Const.,50 imple- must con the state statutes These boards. boards prescribed by them, municipal-court cogni- in manner menting limit duct uniform state law. conduct.51 zance to nonfelonious criminal statutory Lacking both constitutional Lackey v. ex jurisprudence, Extant powerless utterly authority, city would be v. ex rel. Short and State rel. Grant47 municipal-law remedy major afford a in Callahan,48 manner which with the deals infractions, ir- conduct and serious election municipal for a is to be selected official city regularities or fraud. charter Lackey office. teaches mandatory primary system, legal vitality Art. city For the see its from 49. charter draws 3(a), 42. 3, 3, 18, Const., imple- Okl. Before the constitution's § Const. Okl. Art. 1978, provisions menting these were provisions of 11 13-101. amendment 5, 18, 3, 13(a), provide perti- Okl. Const. found in terms of Art. part: nent Const., 7, 1, Okl. 50. The terms of Art. containing population "Any city of more part: pertinent may frame a thousand inhabitants than two " * * * government, incorpo- consistent Municipal charter for its own Courts cities subject and laws Constitution in effect and shall rated towns shall continue State,.... Upon creation, approval it shall such subject to or alteration be abolition laws, organic Legislature by general law of such and su- become the but shall existing any persede charter and all amend- jurisdiction to criminal and limited traf- arising all ordinances inconsistent proceedings ments thereof and out of fic infractions ”* * * added.) (Emphasis with it. ordinances cities and towns adopted regulations duly such authorized of ordinances." Okl., Norick, v. 447 P.2d 43. Lee added.) (Emphasis (1968). right to contest an At common law there was Wagoner County Election Board election. Tulsa, Okl., 654 P.2d Okl., 44. Oliver v. Plunkett, (1956). 305 P.2d Okl., (1982); 518, City Sapulpa, 645 P.2d Farmer v. ex- contest affords the 1018; Lee, (1982); supra note 43 remedy. clusive 26 O.S.1991 § Donnelly, Okl. 201 P. Walton v. note 4. (1921). provide in 51. The terms of 11 O.S.1991 14-111 pertinent part: Pryor Co. Creek Public Service 45. " * * * Okl., (1975); Okl., 536 P.2d having a B. Cities criminal Land, Sapulpa v. 101 Okl. 223 P. authority to shall not have court of record ... making an act enact ordinance unlawful by state statute to be or omission declared * * * Const., 22; supra note Pru- 46. Art. punishable felony. as a Co., supra Property Cas. note 26 at dential & Municipalities having a court C. J., (Opala, concurring). authority to not have not of record ... shall making any act enact ordinance unlawful Supra note 41. state statute to or omission declared ” * ** felony. punishable as a added.) Supra note 38. *11 jurisprudence, leg- no less than demned Our own command state- § 46 charter,52 city islative enactments or a must wide uniformity regu- election-conduct faithfully conform to fundamental lations. Our own jurisprudence, no less prohibition against law’s nonuniform elec- legislative than enactments tion conduct We therefore hold laws.53 charters, must faithfully to the conform respondent judge that the trial did not err prohibition law’s against fundamental concluding filing time for procedure challenging nonuniform protest against of a city the outcome elec- municipal elections. throughout tion must be uniform the state Respondent failure explicitly Cornett’s governed by three-day and is press applicability 3, for the of Art. 5 and time limit.54 5, impediment 46 is no to our sua sponte invocation of the controlling consti- SUMMARY public-law tutional commands. The charac- Section 7 of the Charter cannot be con- ter of controversy totally leaves us free contrary statutory proce- strued as change modify legal underpin- filing protest. dure for an election There is nings for the respondent judge’s trial deci- nothing in the text of 7 from which the sion.55 court can infer that drafters intended to confine an protest days. to two ORIGINAL JURISDICTION AS- nondelegable duty State has a to con- SUMED; WRITS OF PROHIBITION trol process. the election-return The re- AND MANDAMUS DENIED. sponsibility for the conduct elections is
reposed in county
designated
officials
un-
SIMMS, HARGRAVE, ALMA WILSON
der
subject
supervi-
state law and is
KAUGER, JJ.,
concur.
sory power
Secretary
the State
Uniformity
Election Board.
conduct
HODGES, C.J., LAVENDER, V.C.J., and
corruption-free
elections for a
canvass is
WATT, JJ.,
SUMMERS and
dissent.
3,
plainly
5,
mandated Art.
5 and Art.
46,
Okl. Const. The
SUMMERS, Justice, dissenting.
govern protests
laws that
vitalizing
are but
contest filed in this
and implementing provisions of the consti-
governed
tion is not
statutory period
command,
tution’s
which serve to eliminate
generally applicable
for contests
to other
offending disparities in the state’s election
types
provided by
of elections
statute.
I
machinery. They
guaran-
are intended to
conclude that neither Article III nor Article
equal
tee and assure a free and
access to
V of our
require
Constitution
state-regulated process,
ballot. The
by majority.
result reached
designed
major-
which is
an orderly
ity’s
procedure
argument
elections,
interweaves the suf-
the conduct of
in-
frage provisions
III
cludes
of Article
to the anti-
challenges to the announced re-
provision
turns.
Insofar as
local law
of Article V so as
attempt
require
regúlate
be viewed as an
a uniform
for local elec-
ballot-challenging
argument,
process, it is
tions is not a
novel
ineffi-
special
rejected by
cacious as a local
century
noncon-
courts more than a
forming legal
ago. Thus,
norm
stands con-
dissent.
respectfully
Adams,
supra
public-law
apply
Tulsa v.
note 32.
55.In
are free to
cases we
theory
disposes
correctly
dispute.
Fund, Okl.,
Reynolds
Special
Indem.
725 P.2d
Const.,
22;
supra
53. Art.
note
Hen
(1986);
Independent
Burdick
V.C.J.,
ry, supra
(Opala,
note 26 at 1271
concur
Dist., Okl.,
(1985);
School
P.2d
ring).
Okl.,
Lawton,
McCracken v.
648 P.2d
(1982);
Goodwin, Okl.,
Application
21 n. 11
statute,
54. The
26 O.S.1991
8-§
(1979); Special Indemnity
597 P.2d
three-day period
authorizes
Reynolds,
Fund v.
188 P.2d
199 Okl.
protest.
an election
*12
188
whether,
determining
if section
municipal Without
that a
majority claims
Legisla-
duty upon
impose
the
4 did
such
function” and that
“core state
is a
ture,
could
time
such elections
be
the
nondelegable
exclusive
is “an
the election
by
than
an act
any other manner
fixed in
county election
by
conducted
function
state
opinion
Legislature,
the
we are
the
authority of
supervisory
the
under
hoards
it the
does not make
Board”,
that said section
Election
Secretary of the State
the
Legislature to
mandatory duty
the
hands
the
is in the
the election
and that
holding
in
the time
elections
provide
disagree.
I
State.1
section
corporations.
Said
municipal
to this
made
argument was
In 1911 an
pro-
subjects:
It
three
First.
deals with
City of Okla-
the
the
that
Court
an
Legislature
shall create
that
vides
Legislative
to
subservient
City was
homa
it shall
Second. That
election board.
the- time and
provided for
that
enactments
holding
the time and manner of
provide
argued
It
conducting of elections.
conducting
elections. Third. For
all
and
Art. Ill
mandated
Const.
that Okla.
people
by
vote
direct
ex rel.
v. State
Lackey
a
such
result.
Senators, when the fed-
States
of United
Grant,
P. 913
permit the same to
Constitution shall
eral
said:
Court
first
It
clear that the
and
done.
is
urge
por-
that the
for relators
Counsel
accomplished
objects intended to be
third
foregoing section
tion of
[Okla.
to
elections
by
pertain
this section
to
provides that
Art. Ill
Const.
§ 4]
throughout
It does not
state.
held
the time of
provide
shall
Legislature
Legislature shall create
that the
provide
elections, in-
conducting all
holding and
boards,
it
create
shall
but
municipal
cor-
held
cludes all elections
here con-
board.” The board
“an election
general; and
special and
porations, both
board,
whose
templated is a
under
state
imposes
by4
its terms
since section
of the state
supervisions the elections
duty
Legislature
mandatory
conducted; and we think the
shall be
holding
such elec-
provide the time
to
has
clause likewise
second
reference
tions,
power
precludes
throughout
held
only
elections
to
body to fix a time for
right
state,
the su-
that would fall under
such elections.
board. Id. 116
pervisions of said election
Id.
P. at 918-919.
Legisla-
thus determined
This Court
expressly stated that the
thenWe
Legislature under Okla.
duty of the
for the
duty
ture’s
under §
providing
the time
Ill
4 in
conducting elections Const.
holding
time
holding
did
throughout
manner
held
only to elections
applied
municipalities
state,
municipalities.
apply
and not
charge municipality
characterizing
municipal
is authorized to
regard
With
election,
municipal
conducting
state
I must note
because
election as a "core
function”
function,
required
following. municipal
the
by
a state
and serves
local election
paid
funds
to be
statute
municipal purpose
de-
and function.
a local
paid
election board.
legal
join
opinion that casts a
shad-
cline
ex
13-111.
In State
rel. Jordan
funding
ow over
(Okla.1989)
Bethany,
P.2d 164
this Court
judgment on
a District Court to enter
ordered
Ill
Const. Art.
4§
2. The current version Okla.
municipalities challenging a stat-
three
behalf of
utorily required
states:
"cost-sharing”
imposed on the
prescribe
Legislature
municipalities
support of a state
for the
func-
holding
manner of
challenged
They
The nomination and election of munici-
pal
is a
of purely
officers
matter
munici-
It states
certificate
election re
pal concern,
provided
turns is to be issued
a timely protest
unless
by
self-governing city,
the charter of a
is filed. If
section
the
is read as counseled
(article
adopted pursuant
to section 329
by respondents then the certificate could be
18, 3a), Williams’ Constitution.
Id.
upon expiration
day
issued
peri
of the two
od,
expiration
but
statutory
before
The
up
analysis
Court summed
its
as fol-
general
day protest period.
three
In other
lows:
words,
language staying
the
the issuance
analysis
question
So in its last
the
during
protest period
certificate
mandatory
determination is
whether
would become
if
meaningless
protest
system
primary
for the nomination of
were allowed after the issuance of the cer
elective officers is such a matter of
tificate. Judicial
legislative
construction of
grave state concern that
it cannot be
presumption
acts is based on a
all
dispensed with and another method
legislative language
is intended to have
adopted by
nominating
charter
meaning
constitutional
and affect. TRW/
electing
purely municipal officers of
Pump
Reda
v. Brewington, 829 P.2d
a self-governing city.
(Okla.1992);
Tulsa,
City
Elias v.
(Emphasis added).'
Id.
5.Title 26 of the Oklahoma supra; Statutes is ex v. State rel. State ex Callahan, segregated into with supra; City Articles some these ac- rel. Short v. Creek Pond election, cording Haskell, type People supra; and these con- rel. ex Grinnell Hoff man, Barlow, particular type tain statutes supra; supra. of election Patterson v. provided: Article I—State and Elec- Parties, tions—Political Electors, Article X—Presidential This of- construction Charter matches Officers, statutory governed Article XI—Judicial Article scheme for contests Elections, XII—Special XIII—Municipal three-day statutory peri- Article the state statutes. Elections, provided by Article XIIIA—School od District and contests har- § 8-109 Elections, duty Vocational-Technical School District monizes with Board to Election Primary. Article XX—Presidential Preference not issue election certificates or lists in certain charter; provided, governed by upon the reliance Mr. Cornett’s any municipality election such misplaced. X 5 is of Article provision indicating its may, by resolution call- provision states: That election, choose to follow Ap- Laws 5. General Section governing elec- of state law provisions X Article Except as in this plicable. tions conducted for the primary provided, said municipality’s charter or when the board Council- Mayor and the nomination are silent on the matter ad- ordinances and can- man and provision. by such dressed proceedings of returns and all vass elections, either relating 16-102(A). (Citation to said em- whatever 11 O.S.1991 § general, primary phasis municipal elec- applicable to this State a Charter of Oklahoma hereby adopted primaries are tions Thus, City. those of state put into full force effect elections un- applicable made proviso that on exception and the further Chapter apply 16 of Title 11 do not der general election ballots City.8 City of Oklahoma designation party party emblem provided three-day period the names of nomi- appear shall upon by and relied O.S.1991 8-109 required to be the ballot nees who respondents does not contain lan- appear in one column. making provisions applicable to guage its Added) *16 municipal election, in Arti- and it is located apart “[e]xcept as in Article from the Even 26 of the Oklahoma Stat- cle VIII of Title language, this section has provided” X contain an Article titled utes. Title does application on the important limitation Elections”, “Municipal Article XIII of Title process: to “the laws state expressly XIII 26. But Article does not to applicable of this general laws State require contests or that provide for election municipal primaries and are here- elections general applica- election laws are made adopted.” This section does state by municipal to elections. latter omis- ble The are general applicable, laws but that XIII- significant, is because Article sion applicable those adopted. rather that involving A school district vocational- and to general applicable are the What elections, legis- technical school district municipal elections? “Except as lature did that other- Title 11 O.S.1991 16-104 states that law, general § provided by wise applicable general to elections “The laws for apply laws shall to elections school govern general municipal ex- elections vocational-technical dis- districts and school cept provided.” The “other- otherwise O.S.Supp.1992 13A-101. tricts.” § provided” play comes into 16- wise § statutes are found in Article XII Similar provides: specified special for elections that do not municipal
The 16-101 et include elections. Section O.S.1991 12-104, 12-109, 12-114, this 12-117. seq. [including title Failure § 16-104] § apply any municipality expressly shall not make election laws expiration prior expiration before the of the time to will not be issued elections §§ those 26 O.S.1991 period. contest contest comparable provision § The 8-106 8-108. municipal election is codified 26 O.S. for provides Chapter 16 I note that of Title 11 also certify time to the results § 13-106. The municipal election contests and the municipal pre- election is the time "[a]t for a petition alleging irregularities post- within a law”, statutorily linked to scribed three-day period. 11 O.S.1991 16- §§ corresponding specific election con- 310, 16-312. Sections 16-310 and 16-312 are Thus, just as the scheme tests. Id. Act, part Meeting of the Oklahoma Town prohibits the issuance of lists and cer- elections applies municipalities specified that Act expiration prior of the contest tificates population governed by are not charter. City my interpretation period Charter § O.S.1991 16-302. municipal a scheme of elec- too intends of lists certificates where issuance tions applicable municipal certainly provided shall be immediately ap- finding supports this of an intent not to do propriate county (Em- election board. so. phasis Legislature statutory requirement making
A thus understood all of that a provision of a applicable election laws to mu- charter could control needed, aspect some nicipal elections is not municipal since Article elec- tion, XIII appropriate does state that the notice of a munici- that the County Elec- pal election “shall tion Board contain would be need to be informed of facts: ... 6. For charter cities such. I where Thus decline to adopt the respon- silent, charter is any portion interpretation indication of dent’s 13-103. § law, apply; of state will ...” 26 Our given Constitution has Oklahoma 13-102(6). O.S.1991 See also 11 O.S.1991 § City right to conduct its municipal af- 16-102(A), above, quoted providing fairs free from the control of Legisla- application of state law via the resolu- ture. 2, 3; Okla. Const. Art. 18 §§ calling for the election.9 I Because Callahan, ex rel. Short v. supra. Further- provides conclude that the Charter for more, Legislature has not seen fit to contests, the time to file election 13-102 place books, a law on our time, at this apply, does not important but it is to an expressly period limit the pro- available for understanding why respondent’s reli- test of municipal election. There is no quite ance 13-103 is not correct. charter v. statute controversy; the statutes are silent respondents subject. on the rely upon 26 would hold 13-103. the controlling Part states that contest, “All elections shall be held at the and. under X place same Article 7 the time pre- the same allowed manner to file contest to an scribed conduct of state and Council tion is provided elections unless within two after otherwise the election. law.” Part contestant day C of was a late. part 13-103 states in “Except law, provided by otherwise *17 I am authorized to state that Chief Jus- governing state and Primary tice HODGES and Vice Chief Justice LAV- and General applicable Elections shall be join ENDER in these views. election.” Section 13-103 re- elections, partisan fers to pre- location of WATT, Justice, dissenting. cincts, the polling places time the will be opinion dissent. The adopted by the open, composition and the precinct majority today will send shock waves election board. It controls the manner the through municipal hallways across held, election is but does not deal with the every state in and town. bringing an election contest. prevailed, Where reason once chaos now If required application 13-103 of all reigns. general election laws to charter cities then This simple is a case in the analysis. final 13-102(6) would ineffectual redun- contestant had two under Okla- dancy §, a meaningless statuto- City’s homa pro- Charter within which to ry appendage. Section 13-109 states: test the election results. Because he wait- Municipalities operating under a char- ed days, three contestant’s contest came government ter form of required shall be too late. A certificate of election should charter, copy furnish a of said as it petitioner, issue to Simpson. Sheila G. applies elections, to conduct county election board of the wherein said municipality’s central of- Any
fices are located. changes in a char-
ter, applies as it elections, to conduct of statutory exception 9. application 316, 317, subsequent ch. and its codi- state law to elections in charter cities is providing fication in a statute time of example new. For an see Okla.Sess.Laws 1910- elections. C.O.S.1921 4369.