MacY v. Oklahoma City School District No. 89

SUMMERS, Vice Chief Justice.

¶ 1 May residents of a former school district successfully bring a declaratory judgment action to invalidate an annexation election held thirty years earlier? They may not. We affirm the District Court’s judgment in favor of the Defendant existing school district.

¶2 Plaintiffs are 317 residents in Oklahoma City School District 1-89 residing in the former Arcadia School District 1-5. In 1996 the Plaintiffs filed suit in District Court seeking a declaratory judgment that two elections in 1966 annexing their Arcadian district to the Oklahoma City district were void. Oklahoma City School District 1-89 defended, and argued that the elections were not void, but in any event, an action filed thirty years thereafter came too late to set aside the elections.

¶ 3 The Oklahoma City and Arcadia school districts were not adjacent in 1966. Two annexation elections were held in that year, the results of which annexed Arcadia School District 1-5 to Oklahoma City School District I-89.¹

¶4 The first election was held in July 1966 to annex a quarter section of land in the Arcadia District. On July 6th of that year the State Board of Education transferred a small portion of the Arcadia School District to the “transportation area” of the Oklahoma City School District. On July 20th the Oklahoma County Superintendent of Schools signed an order declaring annexation. The order stated that a petition for annexation had been filed on July 17, 1966, (a Sunday), that the election was held on July 19, 1966, that notice was given according to law, and that the annexation was approved by a vote of 8 to 2. That part of Arcadia transferred to the Oklahoma City transportation area was purportedly the same portion subject to the July 19 annexation election.

¶ 5 Plaintiffs argue that the first election was void for two reasons: (1) improper notice, and (2) failure to satisfy the statutory requirement that annexation be based upon the adjacency of the two districts. Plaintiffs argue that the notice of the election did not comply with the statute and that the voters did not have actual notice of the election. The relevant statutes governing notice are 70 O.S.Supp.1965 § 7-1 and 70 O.S.1961 § 4-16.² Defendant argues that the date in the order for the filing of the petition for annexation must have been a typographical error, being only two days before the election and being on a Sunday, a day on which the Superintendent’s office was never open. Section 7-1 provides the procedure for an annexation election upon the filing of an annexation petition.

¶ 6 Then in August of 1966 a petition was circulated in Arcadia to annex the entire Arcadia school district to Oklahoma City. The petition was received on August 23 by the County Superintendent of Schools. The second election was held on September 3, 1966. A majority of the voters in the Arcadia district voted approval of the annexation. Plaintiffs challenge this election by arguing that the Arcadia district did not meet the statutory provisions for annexation to the Oklahoma City district. The statute is 70 O.S.Supp.1965 § 7-1.

(a) The territory comprising all or part of a school district may be annexed to an adjacent school district, or to a school district in the same transportation area authorized to furnish transportation, or to two (2) or more such districts, when approved at an annexation election called and conducted by the county superintendent of schools in pursuance of a petition for annexation signed by a majority of the school district electors in the territory proposed to be annexed, ... (emphasis added). Plaintiffs are correct that at the time the first election was held the Arcadia and Oklahoma City school districts were not adjacent to each other. Two school districts were situated between the Arcadia and Oklahoma City districts, those of Oakdale and Jones.

¶ 7 Plaintiffs thus argue that the first election did not involve adjacent districts, and the second election did not involve adjacent districts if the first election is of no effect. Plaintiffs also argue that no part of Arcadia was in a properly created transportation district at the time of the first annexation election.

¶ 8 Both sides moved for summary judgment, and the District Court granted judgment to the Oklahoma City School District. Plaintiffs appealed, which we have retained pursuant to Okla.Sup.Ct.R. 1.24. We deny the motion for oral argument. We need not detail all the evidentiary material in support of the respective Motions for Summary Judgment filed by both parties because we do not reach the merits of the challenge to either election. Our ruling is compelled by the procedural posture in which we find the case.

¶ 9 The Oklahoma City school district argues that a declaratory judgment proceeding may not be used to challenge an election in place of the remedy provided by statute when there has been no showing that the statutory remedy was inadequate. We agree.

¶ 10 After an annexation election in 1966 the statute provided that the County Superintendent of Schools issue an order either declaring or denying annexation, based upon the election results. Within ten days after this order 25% of the school district electors who were eligible to vote at the election could appeal the Superintendent’s order to the district court. 70 O.S.Supp.1965 § 7-1. No one followed this statutory procedure in 1966.

¶ 11 Plaintiffs filed a petition in 1996 requesting a declaratory judgment pursuant to 12 O.S.1991 § 1651. A suit for declaratory judgment pursuant to § 1651 is neither strictly legal nor equitable, but assumes the nature of the controversy at issue. Carpenter v. Carpenter, 1982 OK 38, ¶ 17, 645 P.2d 476, 481; Hoffman v. City of Stillwater, 1969 OK 190, ¶ 18, 461 P.2d 944, 946. The present declaratory judgment proceeding is brought for the express purpose of attacking an election (actually, two elections), so the nature of the controversy is an election challenge.

¶ 12 Plaintiffs’ petition alleges that they “are duly qualified citizens, taxpayers and or voters of Oklahoma City School District Number 89, (formerly Arcadia School District 1-5).” No allegation is made relating these plaintiffs to the statutory 25% of the electors joining in an appeal challenging an annexation election, and, of course, the case was brought some thirty years after expiration of the ten day period. This case is obviously not prosecuted according to the statutorily provided procedure for an annexation election challenge.

¶ 13 A variety of procedures have been used to challenge elections: statutory relief, mandamus, quo warranto, injunction, and declaratory judgment. No exercise of judicial or quasi-judicial power by a state, entity in an election controversy is beyond this Court’s superintending jurisdiction to review by the appropriate extraordinary writ. McKye v. State Election Bd. of State of Oklahoma, 1995 OK 15, ¶ 5, 890 P.2d 954; Stover v. Alfalfa County Election Bd., 1975 OK 6, ¶ 8, 530 P.2d 1020, 1022; Boevers v. Election Bd. of Canadian County, 1981 OK 138, ¶ 6, 640 P.2d 1333,1335. We have also explained that this Court is empowered to issue mandamus to an election board for the purpose of correcting an arbitrary abuse of discretion or to compel the performance of a ministerial duty. Box v. State Election Bd. of Okla. County, 1974 OK 104, ¶¶ 16-18, 526 P.2d 936, 939; Brown v. State Election Bd., 1962 OK 36, 369 P.2d 140,152. However, the exercise of power to review elections, whether,-by this

Court or a district court, must be in accordance with the legal requirements for obtaining such review.

¶ 14 Generally, in assessing a plaintiffs standing in election controversies courts examine both the type of claim made and the interest of the party pressing that claim. When statutory relief is available we have required particular claims to be addressed by the particular statutory procedure provided by law for adjudication of that claim. See e.g. Coleman v. Sequoyah County Election Bd., 1988 OK 96, ¶2, 762 P.2d 935, in which we said that inasmuch as a remedy for contesting the candidacy of a candidate was provided by 26 O.S.1981 § 5-118, a party could not use a petition for irregularities pursuant to 26 O.S.1981 § 8-120 as an alternative method. Similarly, in Brickell v. State Election Bd., 203 Okla. 362, 221 P.2d 785, 789 (1950), we explained that a statutory hearing on a recount could not be expanded to include testimony on allegations of voting irregularities when no legislative authority existed for such expansion.

¶ 15 What sort of interest must a plaintiff have in order to be heard in a suit to invalidate an election? Where the creation of a school district is challenged in a proceeding in the nature of quo warranto the proper plaintiffs are the legal representatives of the state, i.e. the Attorney General or District Attorney (County Attorney). In State ex rel. McFadyen v. Holtzclaw, 151 Okla. 163, 2 P.2d 1022 (1931), such a proceeding was brought challenging the incorporation of a school district. We quoted with approval from the Supreme Court of Kansas, and explained that private plaintiffs had no standing to challenge the district’s creation.

The state has provided its own officials, an Attorney General and a county attorney, to challenge the validity of a corporate or quasi corporate organizations in this state, like cities, counties, townships, and school districts; and ordinarily it is no justicia-ble concern of private individuals that these public subdivisions and organizations of the state may have some infirmity in their organization.

State ex rel. McFadyen, 2 P.2d at 1023, quoting, Schur v. Rural High School District No. 1, 112 Kan. 421, 210 P. 1105, 1106 (1922), (emphasis added).

Private individuals thus do not possess a legally cognizable interest to challenge the creation of a school district in a quo warranto proceeding.

¶ 16 This concept is also found in our opinions declining to give equitable relief to plaintiffs challenging a school district consolidation. In McGowen v. Board of Education of Union Graded School Dist. No. 25, 188 Okla. 625, 112 P.2d 355 (1941), suit was brought by individuals seeking to enjoin the consolidation of two school districts. The purpose of the proceeding was to avoid the effect of an election held in response to a call by the County Superintendent. We said

The trial eourt sustained a demurrer to the petition on the sole ground that the plaintiffs were without legal capacity to maintain the action; that such suit could be instituted and prosecuted only by the Attorney General or the County Attorney of McCurtain County. This is the only error assigned on appeal.

We are of the opinion and hold that the order sustaining the demurrer must be affirmed. In Dowell v. Board of Education, 185 Okl. 342, 91 P.2d 771, this court passed upon a similar situation. Under the authority of that decision it appears that the plaintiffs cannot maintain this action. They have no voice in the affairs of the school district except in those matters designated by statutes. A school district is a subordinate agency of the state. The only agency authorized to object to the proceeding, authorized by the election, is the State of Oklahoma. Dowell v. Board of Education, supra.

McGowen, 112 P.2d at 355.

Thus, private individuals as residents have no right to equitable relief to void an election organizing a school district.

¶ 17 This Court has used equity to provide a remedy for the purpose of challenging an invalid election if there is no statutory provision allowing an election contest, and if the challenge involves civil or property rights, rather than political rights. Walker v. Oak Cliff Volunteer Fire Protection Dist., 1990 OK 31, ¶ 14, 807 P.2d 762, 768.³ Plaintiffs in our case today do not seek relief based upon alleged injuries to their civil or property rights, nor, as alleged in Walker, an election procedure that denied notice of a right to vote on an issue that affected property rights without any statutory remedy of appeal. Rather, their claim is solely that the elections did not follow proper procedure and that for this reason they must be held to be void.

¶ 18 In School Dist. No. 37, Washita County v. Latimer, 190 Okla. 620, 126 P.2d 280 (1942) an action was brought by a school district, its officers, and certain of its residents to enjoin a county superintendent from making an annexation order. We said that:

The Legislature may at will create, alter or abolish school districts without consulting the inhabitants thereof. The people may be denied a voice in the matter, and denied the right of appeal- However, any attempt on the part of the Legislature to deny interested parties the right to a judicial determination of the question whether the provisions of the act have been complied with would constitute a denial of due process of law. In event the Legislature should fail to provide an adequate remedy-in such ease the parties could resort to injunction to test the validity of the order. But where an efficient and speedy remedy is provided, injunction will not lie.

Id. 126 P.2d at 282.

We then explained that the individuals did not possess a property right affected by the annexation.

In Dowell v. Board of Education, 185 Okl. 342, 91 P.2d 771, 775, where a similar question was involved, the court said: “But the voters of the independent district are not divested of any property rights by the addition of territory to their school district or a change in such district. A school district is a subordinate agency of the State, and the Legislature can abolish them or change their boundaries without consulting the inhabitants. School Dist. No. 17 v. Zediker, 1896, 4 Okl. 599, 47 P.. 482. The individuals have no property rights in them, and thus the failure to give the inhabitants of the independent district a voice in the matter or to provide for an appeal is not a fatal defect.”

School Dist. No. 37, Washita County, 126 P.2d at 282.

¶ 19 Plaintiffs’ challenge to the second election because it combined two non-contiguous school districts into one is one that could have been brought in 1966. For example, in Independent School Dist. No. 66, Pottawatomie County v. Dependent School Dist. No. 62, 1953 OK 208, 259 P.2d 826, 829, we said that when a school district was created consisting of two or more non-contiguous districts' by an election, an appeal pursuant to statute could be filed in the district court, and that court had the power to invalidate the election. The non-contiguous nature of the annexation was readily ascertainable by those electors participating in that election, as it was in this one, and nothing would have prohibited them in either case from challenging the election on this ground.⁴

¶20 The other challenge to the second election is the claim that in July of 1966 the State Board of Education had improperly created a transportation district by adding a portion of the Arcadia School District to the Oklahoma City School District. Plaintiffs rely upon the minutes of the State Board to show that the transportation district was not created in accord with the rules of that Board. But the statutory appeal within ten days after the election provided a procedure for adjudicating claims of flaws in the election such as that.

¶ 21 This is not to say that the only procedure for challenging a school district annexation election in 1966 was by the statutory appeal. For example, a declaratory judgment procedure has been used by competing school districts to successfully challenge an annexation. Jet-Nash School Dist. No. 1-4 of Alfalfa County v. Cherokee School Dist. No. 1-46 of Alfalfa County, 1989 OK 92, 776 P.2d 553. We have also declined to limit one school district’s remedy to challenge an adjacent district’s patently void acts when such acts would usurp the right of the former district to proceed with an annexation according to statute. Tryon Depend. School Dist. No. 125 v. Carrier, 1970 OK 153, 474 P.2d 131, 134. But this case does not present a controversy where a school district has attempted to annex the territory of the former Arcadia district and then sought to justify its act by alleging the invalidity of the original annexation by the Oklahoma City School District.

¶ 22 Plaintiffs rely upon Walker v. Oak Cliff Volunteer Fire Protection Dist., supra. But it does not help them. The equitable remedy allowed in Walker was based upon the complete absence of a statutory procedure for a Fire Protection District election contest. 1990 OK 31, at ¶ 14, 807 P.2d at 768. We assayed the timing of the suit brought to invalidate the election (20 months after the election) and held that laches did not bar the electors. But the electors of this 1966 annexation election were provided with a statutory procedure for an election contest, and Walker is inapposite.

¶ 23 Plaintiffs also rely upon City of Maud v. Tulsa Rig, Reel & Mfg. Co., 165 Okla. 181, 25 P.2d 792 (1933). In City of Maud we said that a city ordinance annexing territory could be collaterally attacked when the ordinance was invalid on its face and the judicial proceeding was for the purpose of challenging a tax based upon that ordinance. Thus a collateral attack upon an annexation ordinance is allowed in certain circumstances. But the suit today does not challenge a tax based upon an annexation. Rather it is a challenge to the formation of the district itself, and as we stated previously, a private individual ordinarily has no justiciable concern relating to an infirmity in the organization of a district. State ex rel. McFadyen, supra.

¶24 We hold that when electors of a district possess a right to bring a statutory appeal for the purpose of challenging an annexation election, and then do not do so, they may not subsequently institute a declaratory judgment action for the sole purpose of invalidating the election upon grounds that could have been adjudicated by the statutory appeal.⁵ Declaratory judgment cannot be used as a remedy to challenge an election in place of the remedy provided by statute when there has been no showing that the statutory remedy was inadequate. And the electors made no timely claim that the statutory procedure was somehow inadequate.

¶ 25 In sum, Plaintiffs who were electors at the time of the election had a remedy at law for challenging the election. Equity will not be used to create an election contest remedy in place of a statutory remedy where no showing has been made that the statutory remedy is inadequate to protect a legally cognizable right. Plaintiffs have requested improper relief in the form of a declaratory judgment that seeks to invalidate an election upon grounds that could have been raised by the statutory procedure for contesting the election.

¶ 26 We agree with Plaintiffs that in certain circumstances an annexation may be collaterally attacked. City of Maud, supra. However, we agree with Defendant that a collateral attack upon an annexation election must be based upon an interest possessed by the plaintiffs other than a mere impropriety in the formation of the district. Id. Whether any persons, Plaintiffs in this case or otherwise, actually possess such an interest and could bring a suit that would properly present such issue is a matter that is not before us.

¶ 27 The judgment of the District court in favor of Oklahoma City School District I-89 is affirmed.

¶ 28 KAUGER, C.J., and HARGRAVE, WATT, JJ., and GARRETT, GOODMAN, Special Judges, in lieu of HODGES and LAVENDER, JJ., each of whom having filed his disqualification, concur. ¶ 29 SIMMS and OPALA, JJ., concur in judgment. ¶ 30 ALMA WILSON, J., concurs in result.

1 . Defendant’s brief reports that Arcadia was losing school patrons in 1966 due to its voluntary desegregation program, and because of its lower student population was in danger of losing its independent school district status.

2 . 70 O.S.Supp.1965 § 7.1(a) provides in part:

... Such election shall be held within fifteen (15) days after the county superintendent of schools receives such petition, at some public place in the school district in which the area affected is situated, between the hours of two (2) o'clock p.m., and six (6) o’clock p.m., and notice thereof shall be given by the county superintendent of schools in the same manner as special meetings pf the school district electors of school districts; provided, that the county superintendent of schools shall not be required to call or hold an election for the purpose of annexing a part of a school district more than once during any twelve month period.

70 O.S.1961 § 4-16 provides in part:

Notice of the time, place and purpose of such annual or special meeting shall be given by the clerk of the board of education at least ten (10) days prior to the meeting by publication in one (1) issue of a newspaper of general circulation in the district or by posting written or printed notices of such meeting in five (5) public places in the district by the clerk of the board of education.

3 . We have defined political rights thus:

A political right is a right exercisable in the administration of government. Political rights consist in the power to participate directly or indirectly in the establishment or management of government.

State ex rel. Attorney General v. Huston, 27 Okla. 606, 113 P. 190, 198 (1910), quotes omitted. This court has stated on several occasions that a court of equity will not enforce a political right. State ex rel. Robinett v. Jarrett, 200 Okla. 387, 196 P.2d 849, 850 (1948). See State ex rel. Cameron v. Jones, 165 Olda. 193, 25 P.2d 648, 650 (1933), (we stated the rule with approval and collected opinions from other courts); City Council of City of McAlester v. Milwee, 31 Okla. 620, 122 P. 173 (1912), (same). Political rights are distinguished from those rights that are protected by statutes creating judicial remedies for their enforcement, State ex rel. Robinett v. Jarrett, supra, (Riley, J., concurring specially), and from civil and property rights protected by equity when no statutory remedy exists, Walker, supra.

4 . We have explained that an appeal to a district court is a plain, speedy, and efficient remedy in the nature of an original proceeding to test the validity of the order of the superintendent, and that there is nothing in the statute to restrict the court's judicial power to hear and determine every material issue. School Dist. No. 37, Washita County, 126 P.2d at 283.

5 . The record appears to identify the Plaintiffs as current residents of the former school district. No citation of authority should be necessary for the proposition that a person has no right to contest an election that the voter was not entitled to participate in. Plaintiffs must have been electors of the school district at the time of the annexation election to possess standing to bring an election contest proceeding challenging the formation of the district. See Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 1900, 135 L.Ed.2d 207 (1996), where the Court explained circumstances where a voter residing outside of a district had no standing to challenge gerrymandering of the district. Plaintiffs who were not electors of the district, either because they resided elsewhere, or had not reached majority, and thus did not possess a statutory right to contest the election' — are not merely lacking a remedy — they do not possess a right to challenge the election in a contest proceeding. Cf. Wagoner County Election Bd. v. Plunkett, 1956 OK 329, 305 P.2d 525, 529-530, (Court explained that equity would not be used to correct the absence of a remedy when there was an absence of a right).