Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Number 188 v. Board of County Commissioners of Tulsa County

2000 OK 2, 995 P.2d 1124, 2000 WL 35827

• Court: Supreme Court of Oklahoma
• Decided: January 14, 2000
• Docket: 92,626, 93,503
• Status: Published

Opinions

HODGES, J.

I. ISSUES

¶ 1 Three issues are presented for this Court’s review: (1) whether title 19, section 744 and title 57, section 41, the statutes allowing jail-privatization, are constitutionally infirm;¹ (2) if the statutory provisions are constitutional, whether the Tulsa County Criminal Justice Authority (TCCJA) exceeded its authority by contracting with a private company for the operation and maintenance of the new Tulsa County Jail; and (3) whether the office and duties of sheriff were properly altered by the Legislature. We conclude that the challenged provisions are valid, that the TCCJA did not exceed its power by entering into a contract with a private company for the operation of the Tulsa County Jail, and that the Legislature had authority to and did in fact alter the duties of sheriff.

II. FACTS

¶2 When the United States Justice Department investigated the Tulsa County jail system in 1994, it found that the condition of the jail violated the constitutional rights of prisoners and detainees. As part of a settlement agreement, Tulsa County agreed to build a new county jail by November 1998, to be occupied by February 1999.

¶3 On September 12, 1995, Tulsa County voters approved a sales tax increase for the construction and operation of a new county jail. The Tulsa County Commissioners created a public trust, the TCCJA, to administer the proceeds of the sales tax increase and the construction and operation of the new jail. On July 24,1998, the TCCJA contracted with Corrections Corporation of America (CCA) for the management and operation of the new county jail.

¶ 4 The Tulsa County Sheriffs Fraternal Order of Police, Lodge Number 188 and a group of taxpayers sought a declaration that the TCCJA had wrongly been formed under title 60, rather than title 19, and that the delegation of jail operations to a private entity was unconstitutional. On cross motions for summary judgment, the trial court found that the TCCJA had not been properly created and that the delegation issue was therefore moot. An appeal was taken from this judgment. In the first appeal in this case, this Court reversed the trial court, holding that the TCCJA had been properly formed under the general trust provisions of title 60, section 176.² Because the trial court had not addressed the delegation issue, we remanded the case for further proceedings.³

¶ 5 On remand, the trial court, concluding that the jail-privatization statutes were valid, denied plaintiffs’ motion for summary judgment and granted the County’s cross motion for summary judgment. Once again, an appeal was taken (Appeal No. 92,626), this time by the plaintiffs. In a separate case, Stanley Glanz, Sheriff of Tulsa County, brought suit against the same defendants, and the Oklahoma Sheriffs’ Association intervened. The issues in both cases were the same. The trial court in the second case (Appeal No. 93,503) denied plaintiffs motion for summary judgment and granted the defendant’s cross motions for summary judgment. The issues preserved for this Court’s review are the same in both appeals. This Court retained both of the appeals for review of the presented issues. This Court, sua sponte, raised the issue of the effect of article 5, section 46 of the Oklahoma Constitution on jail privatization statutes, ordered the parties to submit briefs addressing this issue, and heard oral arguments on the issue.

III. STANDARD OF REVIEW

¶ 6 In the present appeals, the plaintiffs have challenged the constitutionality of section 744 of title 19 and of section 41 of title 57, both of which authorize counties to enter into contracts with private entities for the operation of county prison facilities. Where the constitutionality of a legislative act is challenged, there is a presumption in favor of its validity, and this Court is not at liberty to evaluate the desirability or wisdom of the act.⁴ The challenging party must show “beyond a reasonable doubt” that the act is unconstitutional.⁵ “Whenever possible, statutes should be construed so as to uphold their constitutionality.”⁶

IV. DELEGATION AND ADEQUATE STANDARDS

¶7 The plaintiffs argue that the Legislature has improperly delegated its rule-making authority by allowing the county to establish procedures for jail operation. This Court has not previously addressed the issue of whether the statutory provisions allowing counties to privatize their jails is an unlawful delegation of legislative power.

¶ 8 Oklahoma’s non-delegation doctrine is rooted in articles IV and V of the Oklahoma Constitution. Section 1 of article IV provides for the separation of the three branches of government. Section 1 of article V requires that “[t]he Legislative authority of the State shall be vested in a Legislature consisting of a Senate and House of Representatives .... ” Based on section 1 of article V, it is a well-settled rule that “the legislature must not abdicate its responsibility to resolve fundamental policy making....”⁷

¶ 9 This prohibition does not forbid the Legislature from delegating power to implement its statutorily-mandated policies.⁸ Even though the Legislature may not delegate the power to make laws, it can delegate the authority to make rules and regulations in the implementation of statutory enactments.⁹ To prevent the Legislature’s role from being usurped, its ability to delegate rule-making authority is subject to the condition that the statutory scheme “must establish [the legislative] policies and set out definite standards for the exercise of any agency’s rule making power.”¹⁰

While it is well settled in this jurisdiction that the power to determine the policy of the law is primarily legislative and cannot be delegated, the power to make rules of a subordinate character in order to carry out the policy legislatively determined and to apply that policy to varying factual conditions, although sharing the attributes of legislative exercise of power, is in its major sense an administrative duty which may be delegated properly to an administrative body by the Legislature.¹¹

¶ 10 When interpreting statutes, the intent of the Legislature controls, and to ascertain the legislative intent, all statutory-provisions upon a particular subject will be considered and given effect as a whole.¹² An examination of all relevant statutory provisions is specific of the legislative intent that county jails would be subject to the same standards whether operated by the sheriff or a private entity. Section 744 of title 19 of the Oklahoma Statutes authorizes private operation of county prisons and provides that such jail “services shall meet any standards prescribed and established for county jails, including but not limited to standards concerning internal and perimeter security, discipline of inmates, employment of inmates, and proper food, clothing, housing, and medical care.”¹³ Also relevant is section 68 of title 57 which states “any state law governing jails shall apply to jail facilities operated by a private prison contractor.”¹⁴

¶ 11 There are extensive guidelines already in place which have long applied to county-operated prisons and, under section 744 of title 19 and section 68 of title 57, apply to privately-operated prisons. Section 192 of title 74 requires certain standards for many areas of jail operations such as: admission and release procedures, security, sanitary conditions, diet, clothing, living space, discipline, prisoners’ rights, staff training, safety, prisoner supervision and segregation of females, minors and the infirm. Under section 192 of title 74, the State Health Department is required to inspect county jails once a year and violations are to be reported to the district attorney. The Oklahoma Administrative Code, title 310, section 670, sets out additional standards for jail operations. These standards, under which counties have operated their jails, apply to and are nonetheless sufficient for private-jail operations.

¶ 12 The Legislature has enacted policy addressing how prisons should be operated and allowing privatization. Because the Legislature has provided that all county jails are subject to the same standards whether operated by a county or a private company, it is not necessary for the Legislature to create entirely new standards for privately-operated county jails when adequate standards already exist. The authority to set county-specific rules for the operation of county jails may be delegated because the rules are of subordinate character and necessary to carry out the legislatively-mandated policies. Each county’s individualized policies and procedures will differ depending upon the resources and facilities that it has at its disposal. Further, these policies and procedures are subordinate to the myriad of statutes and regulations which govern jails and prisons. When all provisions concerning county jail facilities are viewed as a whole, there are adequate standards for the county to follow in implementing jail procedure.

¶ 13 Plaintiffs rely heavily on City of Okla. City v. State ex rel. Okla. Dept of Labor,¹⁵ in which we found Oklahoma’s Minimum Wages on Public Works Act¹⁶ to be an unconstitutional delegation of authority. Originally, the Minimum Wage Act required the Labor Commissioner to investigate and determine the prevailing wage.¹⁷ As initially written the Act provided standards for the Commissioner to follow and specified the types of information that the Commissioner was to consider in making a determination of the prevailing wage.¹⁸

State Law Governs Private Prisons.

A. Except as otherwise provided, any state law governing jails shall apply to jail facilities operated by a private prison contractor.

B. Any offense which would be a crime if committed within a county jail also shall be a crime if committed in a jail facility operated by a private prison contractor.

It is hereby declared to be the policy of the State of Oklahoma that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work.

¶ 14 The Minimum Wage Act, as amended by the Legislature, required the Oklahoma Labor Commissioner to adopt the prevailing wage as determined by the federal Department of Labor. In declaring the amendment unconstitutional, this Court said: “the Act has provided no definite standards or articulated safeguards for the United States Department of Labor to follow in implementing the legislative policy declared in the Act.”¹⁹ Therefore, the amended Minimum Wage Act amounted to an unlawful delegation of Legislative authority.

¶ 15 The Department of Labor case is distinguishable from the present case. In the Department of Labor case, the Legislature did not make any attempt to impose existing standards on the Federal Department of Labor. Instead, the federal agency was given the power to determine the prevailing wage in Oklahoma with no direction from the Oklahoma Legislature. Unlike in Department of Labor, here existing standards apply to county jails whether operated by a county or a private company. Counties are ultimately responsible for insuring that their jails meet legislative and administrative standards. The only difference is that the counties now have the option to contract for private operation. In the case of privately-operated county jails, there has been no open ended delegation made as was the case in Department of Labor.

¶ 16 Plaintiffs argue that CCA is unlawfully being permitted to establish policies and procedures for the new jail. However, the plaintiffs have misstated the facts of the case. The management contract between CCA and the TCCJA states that CCA “shall submit to the Authority (TCCJA), for review and approval, proposed Policies and Procedures.”²⁰ Clearly, CCA has not been permitted to have unfettered discretion in setting policies for the jail’s operation. Rather, they are permitted to assist in the drafting of subordinate policies; ultimate control over what policies will be implemented rests with the county. Therefore, the county acting through the TCCJA, not the TCCJA itself, is implementing the legislative policy by approving policies and operating procedures for the new county jail.

V. DUTIES OF SHERIFF

¶ 17 Plaintiffs also contend that the jail privatization statutes are an unconstitutional delegation of legislative power because they allow counties to alter the duties of sheriff. The Office of Sheriff is constitutionally created “subject to change by the legislature.”²¹ The Legislature has previously defined the duties of the sheriff to include “the charge and custody of the jail of his county, and all .the prisoners” within the county.²²

¶ 18 The language of article 17, section 2 specifically gives the Legislature the exclusive power to change the duties of the Office of Sheriff. Not only does the Legislature have the power to alter the duties of the Office of Sheriff, it has the power to abolish the office²³ as it did the offices of County Surveyor²⁴ and County Superintendent of Public Instruction.²⁵ In enacting the privatization statutes, the Legislature has demonstrated its intent to change the duties of sheriff. “The primary goal of statutory construction is to ascertain and follow the intention of the Legislature.”²⁶ It is well settled that “intent is ascertained from the whole act in the light of the general purpose and object.”²⁷

¶ 19 By authorizing the various counties to contract with private entities for the operation of county jails, the Legislature must have foreseen that such action would alter the duties of sheriff. The purpose and object of the challenged provisions is to allow for jail privatization. The Legislature cannot accomplish its object without altering the duties of sheriff. We therefore find that the Legislature’s intent was to alter the duties of sheriff and that it has not assigned the power to do so to the counties as argued by the plaintiffs.

VI. TCCJA’S AUTHORITY TO CONTRACT

¶ 20 Also at issue is whether the TCCJA exceeded its authority as a public trust by entering into a contract with CCA. Title 60 allows public trusts to be established “for the furtherance and accomplishment of any authorized and proper public function or purpose. ...”²⁸ It is well settled that “[a] valid trust in property, with a governmental entity as beneficiary, may be created for the furtherance ... of any public function which the governmental entity might be authorized by law to perform.”²⁹

¶21 We have held that a valid public trust could operate a public parking facility, which amounted to the operation of a business for public purposes, even though only the State held the constitutional power to engage in an occupation or business for public purposes.³⁰ Similarly a valid public trust with a county as beneficiary may exercise rights granted specifically to the county. Since we have already determined that the TCCJA is a valid public trust, the TCCJA may lawfully exercise the powers of its beneficiary in order to accomplish the purpose of the trust.

¶ 22 The plaintiffs argue that the TCCJA, by contracting CCA for the operation of the jail, has exceed its authority under the sales tax proposition which was adopted by a vote of the Tulsa County taxpayers. The TCCJA was created not by the sales tax measure, but by the Tulsa County Commissioners. The TCCJA’s authority is thus governed, not by the sales tax measure, but by the authority granted by the Tulsa County Commissioners, part of which was to provide for the operation of the new jail.³¹ Thus, the contract with the CCA was not outside the TCCJA’s authority.

VII. LOCAL OR SPECIAL LAWS

¶ 23 Finally we address the impact of article 5, section 46 of the Oklahoma Constitution which provides:

The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

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Granting divorces;

Regulating the affairs of counties, cities, towns, wards, or school districts;

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Creating offices, or prescribing the powers and duties of officers in counties, cities, towns, election or school districts....³²

In their briefs, the appellees and the Sheriff agree that the contested statutes do not offend article 5, section 46 of the Oklahoma Constitution. However, the Fraternal Order of Police and taxpayers, appellants in appeal number 92,626, argue that the statutes, as applied, create an impermissible dichotomy in the duties of sheriff of the different counties. We disagree.

¶ 24 We first note that the jail privatization statutes apply the same to every county. Every county in the state has the option of privatizing its jail system; no counties are deprived of this option. Each county is given authority to determine whether privatization of its county jail is feasible for the particular county.

¶ 25 Even if the privatization statutes create a dichotomy among the counties within the state, they are not constitutionally offensive. In Sanchez v. Melvin,33 this Court upheld a statute creating a dichotomy in the jurisdiction in the Justices of the Peace in Oklahoma and Tulsa counties and the other counties in Oklahoma. It was argued, among other things, that the statute violated article 5, section 46 of the Oklahoma Constitution.³⁴ This Court held that for a statute to comply with article 5, sections 46 and 59, it is not necessary that the statute operate universally, but there must be a rational basis for a statutory classification.³⁵

¶26 More recently, in Nelson v. Nelson,³⁶ this Court addressed the issue of whether requiring divorcing couples with minor children to attend classes on helping children cope offends article 5, section 46 of the Oklahoma Constitution. At footnote 24, this Court emphatically rejected the position that section 46 prohibits all classifications. Specifically, “[a] classification is not a prohibited, special law if it establishes a reasonable classification of persons, entities or things, sharing the same circumstances.”³⁷

¶ 27 The jail privatization statutes operate equally on all counties in the state. They provide each county the freedom to decide for itself whether privatization of its jails is the most feasible approach for the individual county. The same opportunity is provided all counties. The fact that some smaller counties reject privatization does not diminish the fact that they are given that choice the same as larger counties. For these reasons, we find that the jail privatization statutes do not offend article 5, section 46 of the Oklahoma Constitution.

IX. CONCLUSION

¶ 28 In conclusion, we note that even though the use of private contractors to operate jails and prisons has recently been renewed, privatization of jails is not a new phenomenon.³⁸ During the eighteenth century, private contractors were used to operate local jails,³⁹ and in nineteenth century, private contractors were used extensively to operate prisons.⁴⁰

¶ 29 While some federal courts have assumed “the propriety of confinements” in privately owned and operated prisons,⁴¹ at least one federal appellate court has stated: “Nor are we pointed to or can think of any ... provision of the [United States] Constitution that might be violated by the decision of a state to confine a convicted prisoner in a prison owned by a private firm rather than by a government.”⁴² A prisoner has no legally protected interest in the identity of his keeper even though there is a legally protected interest in the keeper’s conduct.⁴³

¶ 30 We conclude that the Legislature has not unlawfully delegated rule-making authority to the counties by allowing them to enter into contracts for private operation of county jails. Operating procedure for county jails is a subordinate matter which may properly be determined by each county. The Legislature has provided adequate standards for jail operations to assist the counties in implementing jail privatization. Under article 17, section 2 of the Oklahoma Constitution, the Legislature had the power to alter the duties of the Office of Sheriff, and it exercised this power when it enacted the legislation allowing jail privatization. Further, the TCCJA, is a valid public trust and did not exceed its authority by entering into a contract with CCA. The privatization statutes are not special or local laws prohibited by article 5, section 46 of the Oklahoma Constitution. Thus, the judgments of both district court cases are affirmed.

TRIAL COURTS’ JUDGMENTS AFFIRMED.

¶ 31 SUMMERS, C.J., HARGRAVE, V.C.J., LAVENDER, KAUGER, WATT, JJ., SIMMS, Special Judge, (sitting in lieu of BOUDREAU J. who disqualified), HANSEN, Special Judge, (sitting in lieu of the seat left vacant by ALMA WILSON, J.), concur. ¶ 32 OPALA, J. dissents.

1 . Section 744 of title 19 provides:

A. Each board of county commissioners is hereby authorized to enter into contracts with private contractors for the management and operation of any jail owned by the county or for the incarceration of inmates in jail facilities owned and operated by private contractors. Such services shall meet any standards prescribed and established for county jails, including but not limited to standards concerning internal and perimeter security, discipline of inmates, employment of inmates, and proper food, clothing, housing, and medical care. Said contracts shall be entered into for a period not to exceed fifty (50) years subject to annual appropriations by the county excise board. Said contracts shall be valid for a fiscal year only if the county excise board provides an appropriation for the contract for that fiscal year.

Title 57,'section 41 provides:

Every county, by authority of the board of county commissioners and at the expense of the county, shall have a jail or access to a jail in another county for the safekeeping of prisoners lawfully committed.

A county may enter into contracts with private prison contractors to provide and operate jail facilities for the county.

2 . Tulsa County Deputy Sheriff’s Fraternal Order of Police, Lodge Number 188 v. Bd. of County Comm'ns, 1998 OK 44, ¶ 17, 959 P.2d 979, 982. In the first appeal, plaintiffs argued that the TCCJA was invalid because it was created pursuant to the provision of title 60 of the Oklahoma Statutes rather than those of title 19, specifically section 904.1. Section 904.1 explicitly authorizes the creation of county jail trust authorities. This Court concluded that the TCCJA had been properly created because the provisions of title 19 are not exclusive. Id. at ¶ 15. This Court stated that "Tulsa County and its cities were not limited to a single method of providing jail functions. On the contrary, they are free to utilize any applicable method provided by the Legislature, including the creation of a public trust under title 60, section 176." Id. at V 16.

3 . Id. at ¶ 18.

4 . State ex rel. York v. Turpen, 1984 OK 26, ¶ 7, 681 P.2d 763, 766.

5 . City of Bethany v. Public Employees Relations Bd., 1995 OK 99, ¶ 29, 904 P.2d 604, 613.

6 . Reherman v. Water Resources Bd., 1984 OK 12, ¶ 11, 679 P.2d 1296, 1300.

7 . City of Oklahoma City v. State ex rel. Dept. of Labor, 1995 OK 107, ¶ 12, 918 P.2d 26, 29 (quoting Democratic Party v. Estep, 1982 OK 106, n. 23, 652 P.2d 271, 277 n. 23 (1982)).

8 . Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989); Democratic Party v. Estep, 1982 OK 106, n. 23, 652 P.2d 271, 277 n. 23 (1982).

9 . City of Sand Springs v. Dept. of Pub. Welfare, 1980 OK 36, ¶ 7, 608 P.2d 1139, 1144; Isaacs v. Oklahoma City, 1966 OK 267, ¶ 11, 437 P.2d 229, 233.

10 . Estep, 1982 OK 106, ¶ 16, 652 P.2d 271, 277.

11 . City of Sand Springs, 1980 OK 36, ¶ 7, 608 P.2d 1139, 1144.

12 . Indep. Sch. Dist. No. 89 v. Okla. City Fed’n of Teachers, Local 2309, 1980 OK 89, ¶ 11, 612 P.2d 719, 721.

13 . Okla. Stat. tit. 19, § 744 (1991).

14 . Title 57, section 68, provides:

15 . Okla. Dept. of Labor, 1995 OK 107, 918 P.2d 26.

16 . Okla. Stat. tit. 40, §§ 196.1-196.14 (1991). Okla. Stat. tit. 40, §§ 196.1 provides:

17 . Okla. Stat. tit. 40, §§ 196.1, 196.3, 196.6 (Supp.1965).

18 . Id.; Okla. Dept. of Labor, 1995 OK 107, ¶ 13, 918 P.2d at 30.

19 . Okla. Dept. of Labor, 1995 OK 107, ¶ 14, 918 P.2d at 30.

20 . The contract between the Authority and CCA provides in pertinent part

Section 5.2 Policies and Procedures: On or before October 1, 1998, the Operator (CCA) shall submit to the Authority (TCCJA), for review and approval, proposed Policies and Procedures which shall specifically describe the manner in which the programs, procedures, and services will be provided by the Operator. The Authority shall review and approve or provide any comments thereon to the Operator within thirty (30) days of its receipt thereof. Thereafter, within thirty (30) days of its receipt of such comments, the Operator shall submit any proposed changes to the Policies and Procedures to the Authority for its review and approval. The Authority shall respond to any such proposed changes within thirty (30) days of its receipt thereof. If a response is not received by the end of the thirty (30) day period, the Operator may deem the policy acceptable.

21 . Okla. Const, art. 17, § 2. Article 17, section 2 provides:

There are hereby created, subject to change by the Legislature, in and for each organized county of this State, the offices of Judge of the County Court, County Attorney, Clerk of the District Court, County Clerk, Sheriff, County Treasurer, Register of Deeds, County Surveyor, Superintendent of Public Instruction, three County Commissioners, and such municipal township officers as are now provided for under the laws of the Territory of Oklahoma, except as in this Constitution otherwise provided.

22 . Okla. Stat. tit. 19, § 513 (1991). Section 513 provides:

The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable.

23 . Okla. Const. art. 17, § 2.

24 . Okla. Stat. tit. 19, § 570 (Supp.1983) (“The office of county surveyor is hereby abolished.”).

25 . Okla. Stat. tit. 70, § 4-101 (Supp.1993) ("As of July 1, 1993, the office of county superintendent of schools in and for each county in Oklahoma is hereby abolished.”).

26 . City of Tulsa v. Public Employees Relations Bd., 1998 OK 92, ¶ 14, 967 P.2d 1214, 1220.

27 . City of Bethany, 1995 OK 99, ¶ 8, 904 P.2d 604, 609.

28 . Okla. Stat. tit. 60, § 176(A) (1991). Section 176(A)(2) provides:

Express trusts may be created to issue obligations and to provide funds for the furtherance and accomplishment of any authorized and proper public function or purpose of the state or of any county or municipality or any and all combinations thereof, in real or personal property, or either or both, or in any estate or interest in either or both, with the state, or any county or municipality or any and all combinations thereof, as the beneficiary [with the] express approval of two-thirds (¾) of the membership of the governing body of the beneficiary if a county is a beneficiary....

29 . Morris v. City of Oklahoma City, 1956 OK 202, ¶ 0, 299 P.2d 131, 136.

30 . In re Southern Okla. Dev. Trust, 1970 OK 118, ¶ 17, 470 P.2d 572, 574.

31 . Tulsa County Deputy Sheriffs Fraternal Order of Police, Lodge Number 188, 1998 OK 44, ¶¶ 4, 17, 959 P.2d 979.

32 . Article 5, section 59 of the Oklahoma Constitution provides:

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

33 . 1966 OK 116, 418 P.2d 639.

34 . Id. at ¶¶ 5-8, 418 P.2d at 640.

35 . Id. at ¶ 14, 418 P.2d at 641.

36 . 1998 OK 10, 954 P.2d 1219.

37 . Id. 1998 OK 10, ¶ 14 n. 24, 954 P.2d at 1225.

38 . Richardson v. McKnight, 521 U.S. 399, 405, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997).

39 . Id.

⁴⁰

41 . Id. at 405, 407, 117 S.Ct. 2100; Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir.1996); Spencer v. Lee, 864 F.2d 1376, 1378 (7th Cir.1989).

42 . Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.1999).

43 . Id. at 500.