OSCN Found Document:CATHEY v. BD. OF COUNTY COMMISSIONERS FOR McCURTAIN COUNTY
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
¶1 We retained this cause to address whether the voter-approved lodging tax increase remains in effect when the statutory publication directives were not followed. We hold that it does not.
FACTS AND PROCEDURAL TIMELINE
¶2 In the fall of 2020, the defendant/appellee, the Board of County Commissioners for McCurtain County, Oklahoma (Board) sought a voter-approved lodging tax increase to raise funds for the McCurtain County Hospital. The ballot proposition language sought a lodging tax increase of two percent (2%) "in addition to all other lodging taxes levied."1 The existing lodging tax rate was three percent (3%).2 The proposition was published four weeks in the McCurtain Gazette on October 8, 15, 22, and 29, 2020.3 The special election failed with 56.52% of the voters voting against it.4
¶3 Almost two year later, on August 15, 2022, the Board adopted a resolution authorizing and calling for another special election to vote on imposing a two percent (2%) "increase of the existing hotel/lodging tax within McCurtain County, Oklahoma," to raise funds for the McCurtain County Hospital.5 The Board declared an emergency, and authorized and called for an election on the following proposition:
Shall the existing hotel/lodging tax within McCurtain County, Oklahoma be increased by two percent (2%), effective as of April 1, 2023, for a term of Thirty (30) Years from the effective date of the tax or at the date of final payment of any debt incurred related to the tax, whichever occurs earlier, two percent (2%) increased portion of the proceeds of said tax to be utilized for the designing, constructing, financing, furnishing, equipping and providing fixtures for the McCurtain Memorial Hospital, authorizing the pledging of the two (2%) tax increase for debt service on any financing, and continuing maintenance expenses related to the New McCurtain Memorial Hospital?6
The August 15, 2022, Board minutes also call for the "Election Proposition and Notice to be published as required by law." 7
¶4 Title 19 O.S. 2021 §§381-389, enacted in 1910, governs the procedures for county elections to be submitted to county voters. Title 19 O.S. 2021 §383 still provides:
The mode of submitting questions to the people contemplated by the last two sections shall be the following: The whole question, including the sum desired to be raised, the amount of tax desired to be authorized, the rate per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature which can be set forth, and the penalty of its violation if there be one, is to be published at least four (4) weeks in some newspaper published in the county. If there be no such newspaper, the publication is to be made by posting up in at least one of the most public places in each election precinct in the county; and in all cases the notices shall name the time when such question will be voted upon, and the form in which the question shall be taken, and a copy of the question submitted shall be posted up at each place of voting during the day of election. (emphasis supplied).
Title 19 O.S. 2021 §388 required specific words to be used in the ballot title, review by the district attorney, and publication pursuant to §383.8
¶5 It is undisputed that the proposed proposition was not published for at least four weeks in any county newspaper.9 The statutory provisions do not establish any procedure for challenging a proposed election in general, or provide any consequences if the publishing requirement is unmet. The District Attorney reviewed and certified the legal correctness of the measure.
¶6 Even though the statutorily prescribed publication did not occur, numerous other measures of informing the 16,791 McCurtain County registered voters were used10 such as:
1. Brian Whitfield (Whitfield), the Chief Executive Officer of the Hospital, published numerous posts between August and November of 2022, regarding the proposal on the Hospital's facebook page which had approximately 4,131 followers;11
2. Four billboards were installed in McCurtain County from September to November of 2022, calling for a "YES" vote on the 2% lodging tax increase to support the construction of the future Hospital;12
3. Between September and November, 2022, at least one hundred seventy-three commercials aired on local radio regarding the measure;13
4. Kendra Gross (Gross), the Director of Academic Affairs of Southeastern Oklahoma State University -- McCurtain County Campus and President of the Board of Trustees which managed the Hospital, authored a series of articles offering public insight to the proposition that was published in McCurtain County newspapers weekend editions on September 10-11, and 17-18, 2022, October 1-2, 8-9, and 15-16, 2022, and November 3, 5-6, 2022;14
5. Gross spoke to the Lion's Club concerning the proposition on September 8, 2022,15 and on September 22, 2022, the County Commissioners hosted a public meeting where the full text of the proposition was presented;16
6. Gross and Whitfield spoke to the McCurtain County Kiwanis Club on October 4, 2022, and the Rotary Club on October 5, 2022;17
7. On October 24, 2022, and November 3, 2022, Gross spoke at two town hall meetings hosted by the hospital at the Southeastern Oklahoma State University Auditorium in Idabel18 which was also livestreamed on the McCurtain County Community News Facebook Page which had approximately 11,600 followers;19
8. Whitefield appeared on a television news station out of Shreveport, Louisiana, which covers McCurtain County news on October 25, 2022;20
9. Prior to the election Whitfield appeared on KBEL radio for a live interview where he discussed where the new hospital would be built, where the revenue to pay for it would come from, the tax increase, and the estimated cost to build and maintain the new hospital.21
10. On November 6, 2022, the Southeast Times published the full text of the ballot proposition in its newspaper.22
11. Approximately one week before the election, voters received a mailing encouraging them to vote against the proposition.23
¶7 On November 8, 2022, McCurtain County conducted a Special Election alongside the General November Mid-term Election,24 where voters were presented with the proposition for a 2% lodging tax increase to finance and replace the outdated Hospital and with the tax increase effective April 1, 2023. Every precinct voted in favor of the proposal, with 65% of the voters approving it.25 At the same time, McCurtain County residents approved Hochatown's incorporation as a municipality.26
¶8 On February 1, 2023, the Oklahoma Tax Commission (OTC) published notice that the hotel/lodging tax rates would increase from 3% to 5%, effective April 1, 2023.27 On February 8, 2023, the Hospital filed a Petition for Declaratory Judgment, seeking the trial court's determination that the November 8, 2022, election was valid, and that the lodging tax increase was properly approved. On February 17, 2023, the OTC also sent notices to property owners in McCurtain County advising them of the change in tax rate.28
¶9 The original plaintiff, Scott Senner, reserved a cabin from the plaintiff/appellant property owner, Vonderosa, (collectively, Vonderosa) located in Hochatown, in McCurtain County, Oklahoma, for April 4-6, 2023, a few days after the lodging tax increases were to become effective. On February 16, 2023, Vonderosa also filed a Petition for Declaratory Judgment and Permanent Injunction in the District Court of McCurtain County, Oklahoma. They sought a determination that: 1) the Lodging Tax passed at the Special November 8, 2022 election be declared void and unenforceable, and 2) the County be enjoined from enforcing the tax.
¶10 On February 23, 2023, the Hospital sought to intervene and consolidate with the Vonderosa lawsuit. The Board also filed a motion to consolidate the two cases. On March 3, 2023, the plaintiffs replaced Senner with another renter, plaintiff/appellant, Michael W. Cathey.29 The two causes were consolidated on March 8, 2023, and both parties filed motions for summary judgment.
¶11 On March 13, 2023, the trial court denied Vonderosa's request for a temporary injunction, and Vonderosa appealed, seeking emergency relief in this Court in Case No. 121,155. On March 28, 2023, this Court temporarily enjoined enforcement of the sales tax increase until the validity of the special election was fully and finally litigated. Before we issued the mandate in Case No. 121,155, the trial court, on June 20, 2023, granted summary judgment in favor of the Hospital. Vonderosa appealed the summary judgment ruling to this Court in case no. 121,465 on July 20, 2023.
¶12 While Case No. 121,465 was pending, we denied rehearing in Case No. 121,155 on June 26, 2023, and issued the mandate on September 13, 2023. This Court determined on November 14, 2023, in a published opinion in cause No. 121,465, Cathey v. Board of County Commissioners, 2023 OK 108, ___ P.3d ___, that the trial court was divested of jurisdiction to enter summary judgment until this Court issued the mandate in Case No. 121,155. We reversed and remanded the matter back to the trial court. Mandate issued in Case No. 121,465 on December 13, 2023.
¶13 On January 9, 2024, with all of the appeal mandates having been issued, the trial court entered a Renewed Journal Entry of Judgment on Cross-Motions for Summary Judgment, again granting summary judgment to the Hospital. On February 8, 2024, Vonderosa appealed, and filed a motion to retain which we granted on February 13, 2024. On February 28, 2024, the Board requested the Court to hold an oral argument because this cause concerns a public issue with immediate ramifications. The cause was assigned on February 29, 2024, for an opinion, with the request for oral argument pending. While we agree that this cause concerns a public issue, we also believe that an oral argument in this cause would be dupliciatous and unnecessary. Accordingly, we deny the request for oral argument.
BECAUSE THE COUNTY COMMISSIONERS NEGLECTED TO FOLLOW
THE STATUTORY PUBLICATION REQUIREMENTS, THE VOTER-
APPROVED LODGING TAX INCREASE IS INVALID.
¶14 Vonderosa argues that the county commissioners neglected to follow the statutory publication requirements, constituting insufficient notice and requiring the voter-approved tax increase to be invalidated. The Board admits that it did not follow the publication requirements, but argues that the measures they did take provided more notice than a newspaper publication and served the same function of informing voters. The Board also contends that Vonderosa should not be allowed to challenge the election after it occurred. Vonderosa contends that if the statutory notice procedures are not followed, it should be allowed to bring an after-election challenge as it did in this cause. We review such challenges de novo.
¶15 Notice is elementary and fundamental in the law. It serves many functions, and in some cases, is a jurisdictional requirement to a court proceeding.30 Notice by publication, at least insofar as real estate sales are concerned, is intended to attract prospective purchasers,31 but notice by publication of a special election is designed primarily to apprise voters that an election which affects their interests is to take place, of what the election concerns, and to allow voters to exercise their sovereign will.32 In other words, it provides the voters with the details of an election, including, but not limited to, the date, location, and the issue(s) to be voted on.
¶16 Notice by publication ensures that even those who cannot be reached through direct communication through personal notices or mail, can become aware of the election and participate to exercise their right to vote. The effectiveness of notice by publication lies in its broad reach and ability to provide a reasonable opportunity for public awareness and involvement. This helps to uphold the principles of transparency and fairness in the electoral process.
¶17 Fundamental and essential to notice, in any context, is that it should apprise interested parties of what the notice concerns, convey the required information, and afford a reasonable time for those interested to participate.33 Walker v. Oak Cliff Volunteer Fire Protection District, 1990 OK 31, 807 P.2d 762, addressed the compliance requirements with statutory notice provisions for an election similar to the one in this cause. In Walker, Logan County held a special election to establish a fire protection district. Prior to the election, the county was statutorily required to publish notice for two weeks in a newspaper of general circulation within the proposed district.34 The county made no attempt to comply with the statutorily required notice. Eighteen months after the election, contestants filed an action in the district court to have the election declared null and void.
¶18 Even though the statutorily mandated notice was not published in a newspaper, a few steps were taken to notify the public of the election, including publication of: an article about the election; advertisements for ballot bids; and Logan County Commission meeting minutes regarding the election. Fire department members also passed out flyers about the election, and the establishment of a fire district was discussed in a social calendar which called for attendance at a fund-raising dance.
¶19 The Walker Court stated that notice requirements for general elections may be relaxed because the public is presumed to know when they are held. However, special elections held without the statutorily prescribed notice should be voided. Why? Because newspaper articles, public comments, or similar publicity cannot substitute for what the Legislature mandated regarding notice, and special elections are not set on a date certain so voters may be unaware that an election is being held at all. Without notice, the electoral process fails and the right to vote is abridged if a person does not have prior notice of an election which will affect their interests.
¶20 Like this cause, the statutory election framework involved in Walker included no provisions for election contests -- either before or after the election.35 Walker held that if there is no statutory provision allowing an election contest involving civil or property rights rather than purely political rights, the controversy may proceed in equity. It also held that laches is not an appropriate defense to the challenge of an election to one who lacks notice of a right to proceed or bring a cause of action.
¶21 In Walker, supra, at ¶16, the Court acknowledged that the County Board did not follow a legal duty, and the contestants tried to challenge the election as soon as they became aware of the voter-approved tax levy by contacting officials to obtain relief, and to attempt a pro se action within six months of the election. Here, there is also no statutory procedure allowing a pre-election challenge to a special election and as Vonderosa's counsel noted at the June 14, 2023, hearing: "When you're talking about four weeks publication notice, you're talking about four weeks right before the election, so I think it would be difficult to realize that publication wasn't happening and file a lawsuit before an election happened."36 Here, Vonderosa brought the lawsuit just over three months after the election was held, one week after the OTC published the new tax rate, and almost two months before the new tax rate was to become effective. Accordingly, we agree with Vonderosa that the rationale of Walker, coupled with the absence of any express statutory process to challenge such an election, does not preclude their challenge in this cause.
¶22 However, to the extent Walker's rationale regarding strict compliance also controls the outcome of this cause, we hesitate for several reasons. First, Walker was a 5-4 decision, and the requirement of strict compliance with notice publication procedures for the special election was a sudden departure from a long line of earlier cases.37 Second, Walker involved a December 14, 1982, special election, but in this cause the special election was held in conjunction with the generally known, date certain, general election. The fact that the voters expressly had to be made aware of the special election date in Walker was significant.
¶23 Third, Walker occurred in 1982, a time when newspapers were heavily relied upon for notice as "the" means to reach people regarding elections. Newspapers also reached many more people than they do today, because newspaper subscriptions are significantly diminished.38 The internet, mass mailings, mass public signage, e-mail, and social media either did not exist, or certainly did not have the presence they have today.
¶24 In McCurtain County, the primary newspaper is the McCurtain Gazette.39 It has a circulation of only 6000, with no paid general subscription for either print or digital subscriptions.40 The newspaper reaches less than 20% of the county population through its circulation.41 Another news outlet that serves the County is the McCurtain County Community News, a public Facebook group created on April 29, 2021, which also provides community news for McCurtain County and has 19,186 members as of May 21, 2024.42 While not every member may live in McCurtain County, if they did, it would cover about 62.58% of the County through its platform. Regardless, it would appear that notice through Facebook is likely equal to, or much more effective than the newspaper.
¶25 Finally, in Walker, supra, only 10% of the voters were estimated to have voted in the election indicating the lack of notice may have significantly impacted the voter's right to participate. Here, of the 16,791 registered voters in McCurtain County, 8,050 participated in the election. Nothing in this cause indicates that the voters' rights to participate in the election were inhibited by the lack of the statutorily required newspaper publication.
¶26 We have also recognized that, despite the contention that there must be strict compliance with notice methods, the use of an alternative method did not render the notice defective if the substituted method performed the same function or served the same purpose as the authorized method. For example, in Osprey L.L.C., v. Kelly-Moore Paint Co. Inc., 1999 OK 50, ¶12, 194 P.2d 984, the lease renewal terms provided that all notices shall be in writing but may be delivered either personally or by mail. The purpose of notice in that instance was to ensure the delivery of the notice and to settle any dispute which might arise between the parties as to whether the notice was received.
¶27 In Osprey, faxing the notice performed the same function and same purposes as the authorized method. Consequently, we held the faxed notice was timely. The fax was acceptable when the delivery method was not exclusive of other methods, and the substituted method served the same purposes as those expressly provided in the lease. This cause does not concern contract renewal terms, but it does involve a substituted method different from what the statute provided.
¶28 The Supreme Court of Connecticut, in Arras v. Regional School District. No. 14, 319 Conn. 245, 125 A.3d 172 (2015) decided a case in which residents brought an action against a town and board of education, contending that the failure to publish warning of a referendum in a newspaper as statutorily required rendered the referendum null and void. Rather than publish a statutorily required "warning" of the measure, proponents engaged in methods such as new releases, newspaper articles, direct mailers to residents, publication on the town website, and even robocalls notifying people of the date, time, and voting place.
¶29 After noting that courts should exercise caution and restraint in deciding whether to overturn an election, the court required: 1) substantial violations of the governing statutes to have occurred; and 2) as a result of those violations, the reliability of election results must be seriously in doubt. The court considered several cases from other jurisdictions requiring strict compliance, but also recognized that those cases predated the advent of television, robocalling, mass public signage, mass mailing, the internet and e-mail. Because the challengers did not present any evidence that the election results would have been different had strict compliance occurred, the court did not invalidate the referendum.
¶30 Despite the persuasive rationale of the Connecticut Supreme Court, we adhere to our holding in Walker, supra, that the Okla. Const., art. 3, § 4 , vests the Oklahoma Legislature with the authority to prescribe the time and manner of holding all elections.43 The Legislature has mandated what constitutes adequate notice by publication.44 The Legislature's use of the word 'shall' connotes a mandatory duty equivalent to a command.45 The statute is not ambiguous. Here, the statutorily required notice was not given. Requiring anything less than strict compliance would result in judicial legislation. We do not sit as a council of revision, empowered to rewrite legislation when the statute is free from ambiguity. We do, however, encourage the legislature to consider re-visiting, and possibly updating publication requirements to be more compatible with today's methods of communication.
CONCLUSION
¶31 Title 19 O.S. 2021 §§381-389, enacted in 1910, still governs the procedures for county elections to be submitted to county voters, and they require a proposed measure to be published at least four weeks in some newspaper in the county. It is undisputed that the proposed tax increase proposition was not published, but many other measures to inform the public were taken. Notice by publication provides the voters the details of an election, including, but not limited to, date, location and the issue(s) to be voted on. The Legislature has mandated what constitutes adequate notice by publication. Here, the statutorily required notice was not given. Anything less than strict compliance requires us to invalidate the election. We do, however, encourage the legislature to consider re-visiting, and possibly updating publication requirements to be more compatible with today's methods of communication.
APPEAL PREVIOUSLY RETAINED;
MOTION FOR ORAL ARGUMENT DENIED;
TRIAL COURT REVERSED.