In re the Oklahoma Boll Weevil Eradication Organization

¶ 1 Acting in the exercise of its cognizance mandated by the Boll Weevil Eradication Act¹ [Act], the court approves today the proposed $5 Million Assessment Note, Series 1998 [Note] that represents bonded indebtedness to be issued by the Oklahoma Boll Weevil Eradication Organization [OBWEO or applicant]. The court's endorsementrests solely on the applicant's compliance with statutoryrequirements for the issuance of bonds whose proceeds will provide funds for the boll weevil eradication program.

¶ 2 I must recede from placing imprimatur upon the proposed bond issue. This is so because, when our cognizance of the subject matter is gauged by the standards of Mullane,²Schroeder³ and Mennonite,⁴ the court is patently without in personam jurisdiction over the issues in the case. Moreover, anterior to passing on the constitutional sufficiency of notice — given here solely by publication — I would call upon the applicant to brief another equally criticalissue of whether the "assessment referendum" that gave birth to the bond issue now before us is constitutionally infirm because it was conducted in a *Page 1038 manner offensive to the teachings of Kramer⁵ andCipriano.⁶ I NOTICE TO COTTON GROWERS MUST PASS DUE PROCESS MUSTER ¶ 3 Oklahoma cotton producers approved, at a 1997 "election",⁷ a boll weevil eradication program to be funded solely from assessments to be made against them. Only the members of that class of electors received personalnotice and were permitted to vote in the referendum.⁸ In furtherance of the eradication program, OBWEO approved a $5 million note, to be repaid solely from assessment-derived revenue. It now seeks this court's validation of the bond issue. In conformity with the Act's provisions, notice⁹of this legislatively mandated original proceeding was given solely by publication informing the public that interested persons may file protests against the Note's issuance as well as present themselves to contest its legality.

¶ 4 For the decision that is to be made in this proceeding the Mullane/Schroeder/Mennonite trilogy¹⁰ requiresmore than service solely by publication. Notice conformable to the standards of due process is a sine quanon element of judicial cognizance.¹¹ Jurisdiction must rest on notice that under all the circumstances is reasonably calculated to apprise interested parties of the pendency of a proceeding and to afford them an opportunity to present their objections.¹² As the *Page 1039 Constitution inexorably commands, no one's rights may be adversely affected in the absence of due and timely notice that affords a full and fair opportunity to defend. Actual notice is constitutionally due to all those persons whose interest in the litigation to be prosecuted is "known or very easily ascertainable".¹³

¶ 5 Once a person has been identified as one to whom notice is due, diligence must be exercised in ascertaining that person's last whereabouts for giving personal notice of the pendency of proceedings at a meaningful time and in a meaningful manner.¹⁴ This state's own jurisprudence,¹⁵ implemented by Rule 16, Rules for the District Courts,¹⁶ clearly articulates this very notion. In every case of statutorily mandated originaljurisdiction, such as the present, this court should always insist on the very same notice standards as those that constitutionally govern like proceedings conducted in the district courts.

¶ 6 While the Act provides that eligible voters shall be allowed — by future assessment referenda — periodically to decide whether the assessments are to continue,¹⁷ the borrowing program (and the pledged assessments to repay) cannot be terminated until all outstanding OBWEO indebtedness has been retired.¹⁸ The cotton growers who were eligible to vote in the 1997 "referendum" (and were notified by mail of that election) are hence entitled to a better notice of this proceeding than that which is prescribed by the pertinent provisions of the Act.¹⁹ They are in this case to be treated as known and easily ascertainable interest holders to whom personal notice is due under the standards of the trilogy and of those prescribed by Pope.²⁰ Just as the landowners and the mortgage lender in Mennonite²¹ were held entitled to a personal post-delinquency notice of a scheduled tax sale (to be conducted in order to satisfy the tax liability *Page 1040 owed the county), so, too, the cotton growers' constitutional due here is to receive timely personal notice of a proceeding thatwill afford them the very last chance to prevent the $5 millionbonded indebtedness from becoming their individual assessment liability.

¶ 7 OBWEO's failure to provide each eligible cotton grower with personal notice of this proceeding plainly violates dueprocess. Because its vitiating defect has a jurisdictional dimension, this court may and is duty-bound to raise it suasponte.²² II DOES THE ASSESSMENT REFERENDUM CLAUSE OF THE BOLL WEEVIL ERADICATION ACT VIOLATE THE ONE-PERSON, ONE-VOTE EQUAL PROTECTION DOCTRINE BY CONFINING PARTICIPATION ONLY TO COTTON GROWERS? ¶ 8 There is another fundamental-law problem the court must reach in this case anterior to passing on the issues tendered. That one concerns the constitutional validity of the legislatively restricted franchise for participation in the referendum which gave rise to the bonded indebtedness. If that election was indeed constitutionally infirm, the bond issue before us today cannot be approved. It maynot be rested upon an enactment whose very foundation impermissiblyrestricts franchise.

¶ 9 By the Fourteenth Amendment's command, no state may "deny to any person within its jurisdiction the equal protection of the laws." Amend. XIV, U.S. Const. In the context of state and local balloting, the Fourteenth Amendment guarantee means that in elections of general interest no voting restriction may be imposed other than that based on residence, age, or citizenship, unless, of course, the proponent of a more narrow (or constrictive) regime is able to demonstrate that the restriction is necessary to promote a compelling state interest.²³ This equal protection doctrine, known as the "one-person, one-vote" rule,²⁴ requires that any attempt to dilute the value of votes²⁵ or to withholdthe franchise²⁶ from eligible voters in state or local elections is subject to strict judicial scrutiny. Federal constitutional jurisprudence has struck down election schemes *Page 1041 which restricted — to real property owners — participation in certain special elections. Cipriano²⁷ and City ofPhoenix²⁸ declare that the "one person, one vote" principle governs residents of units of local governments exercising general governmental power. Kramer²⁹ extended the principle to school district elections. A very narrow exception to the rule came to be fashioned for elections that concern special-purpose units of government with a limited function, whose impact is found disproportionatelygreater on the few who are entitled to vote.³⁰

¶ 10 I would first call on the applicant to inform us by brief that because the Act's assessment referendum provisions³¹ do not impermissibly restrict the franchise for participation in that balloting, they do pass muster under the special-interest exception.

III SUMMARY ¶ 11 Because in this case service solely by publication fails to meet the constitutional standard for notice prescribed by theMullane/Schroeder/Mennonite trilogy, this court is without jurisdiction to proceed on the application pressed before it.

¶ 12 Anterior to adjudication of the issues tendered herein the court must decide whether the "assessment referendum" of the Act is valid. Franchise for participation in that referendum stands withheld from all qualified electors except only those who are eligible cotton growers with qualifications prescribed in 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9](C).³² Whether that restriction is constitutionally valid should be resolvedafter inviting briefs that would inform us on the issue.

¹ 2 O.S.Supp. 1997 §§ 3-50.1[2-3-50.1] et seq. Section 3-50.7 [2-3-50.7](B)(20) of the Act mandates this court's consideration of this cause.

² Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306,313-15, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950).

³ Schroeder v. City of New York, 371 U.S. 208, 211,83 S.Ct. 279, 281-282, 9 L.Ed.2d 255 (1962).

⁴ Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798,103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983).

⁵ Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621,89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

⁶ Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897,23 L.Ed.2d 647 (1969).

⁷ The election, called an assessment referendum, was conducted by mail. The votes were cast by ballots returned to the Oklahoma Department of Agriculture.

⁸ OBWEO compiled a list of cotton producers statutorily eligible to participate in the referendum, to whom ballot forms, voting instructions and a return envelope were mailed. According to an undated Oklahoma Department of Agriculture letter (entitled Election Procedures for the Oklahoma Boll Weevil Eradication Referendum) "[a]ll individuals, firms, corporations or partnerships that are actively engaged in the production of cotton (1997) or who were actively engaged in the production of cotton two (2) of the last three years (1994, 1995, 1996) wereeligible to vote in this referendum." (Emphasis supplied). The Department's letter follows the statutory text. 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9](C).

⁹ The terms of 2 O.S.Supp. 1997 § 3-50.7[2-3-50.7](B)(20)(b) are:

"Notice of the hearing on each application shall be given by a notice published in a newspaper of general circulation in the state that on a day named, the board of directors will ask the court to hear its application. Such notice shall inform all persons interested that they may file protests against the validation or approval and be present at the hearing and contest the same. Such notice shall be published one time, not less than ten (10) days prior to the date named for the hearing, and the hearing may be adjourned from time to time at the discretion of the court." (Emphasis supplied).

¹⁰ Under Mullane, supra note 2, 339 U.S. at 313-15,70 S.Ct. at 656-57, and its progeny, one who seeks to alter another's legal rights must give actual notice to the latter before a court can act upon the claim. In Schroeder,supra note 3, 371 U.S. at 211, 83 S.Ct. at 282, the Court concluded that posted and published notice of condemnation proceedings is inadequate to afford the landowners an opportunity to defend against the loss of their rights in land. Actual notice, the Court opined, is due all "known or very easily ascertainable" holders of interest to be affected. Id.371 U.S. at 212-13, 83 S.Ct. at 282. In Mennonite, supra note 4, 462 U.S. at 798, 103 S.Ct. at 2711, the Court reinforcedMullane by announcing that notice by mail or other means equally effective is the minimum constitutional requirement. More than publication notice is required when the proceeding adversely affects the property interests of reasonably ascertainable persons. The state's failure to provide the mortgagee with actual notice of the tax sale violates due process, because "reasonably diligent efforts" could have identified the mortgagee and ascertained its address. Id.

¹¹ Mullane, supra note 2, 339 U.S. at 313-15,70 S.Ct. at 656-57; Schroeder, supra note 3,371 U.S. at 211, 83 S.Ct. at 282; Mennonite, supra note 4,462 U.S. at 798, 103 S.Ct. at 2711. See also Cate v. Archon Oil Co., 1985 OK 15, 695 P.2d 1352, 1355-56; Bomford v. Socony Mobil Oil Co., 1968 OK 43, 440 P.2d 713, 718.

¹² Mullane, supra note 2, 339 U.S. at 314,70 S.Ct. at 657. Due process is violated by the mere act of exercisingjudicial power upon process not reasonably calculated to appriseinterested parties of the pendency of an action. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187,14 L.Ed.2d 62 (1965); Schroeder, supra note 3,371 U.S. at 211, 83 S.Ct. at 282; Riverside Dan River Cotton Mills v. Menefee, 237 U.S. 189, 35 S.Ct. 579, 59 L.Ed. 910 (1915); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363,1369 (1914); Cate, supra note 11, at 1356; Bomford,supra note 11, at 719. Due process requires adequate notice, a realistic opportunity to appear and the right to participate in a meaningful manner. Lack of notice constitutes a jurisdictional infirmity Mullane, supra note 2, 339 U.S. at 313-15,70 S.Ct. at 656-57; Cate, supra note 11, at 1356;Bomford, supra note 11, at 718; Pointer v. Hill, 1975 OK 73,536 P.2d 358, 361.

¹³ Schroeder, supra note 3, 371 U.S. at 212-13,83 S.Ct. at 282-83; Mennonite, supra note 4,462 U.S. at 798, 103 S.Ct. at 2711.

¹⁴ Mennonite, supra note 4, 462 U.S. at 798-99,103 S.Ct. at 2711-2712;Schroeder, supra note 3, 371 U.S. at 212-13,83 S.Ct. at 282-83; Greene v. Lindsey, 456 U.S. 444, 455,102 S.Ct. 1874, 1881, 72 L.Ed.2d 249, 258-259 (1982);Armstrong, supra note 12, 380 U.S. at 552,85 S.Ct. at 1191.

¹⁵ Bomford, supra note 11, at 715; Cravens v. Corporation Commission, 1980 OK 73, 613 P.2d 442, 444; Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16,732 P.2d 438, 443 n. 25; Cate, supra note 11, at 1356.

¹⁶ Rule 16, Rules of the District Courts, 12 O.S. 1991, Ch. 2 [12-2], App., provides procedure to be followed before a judgment may be rendered against a defendant served solely by publication.See Carlile, supra note 15, at 443 n. 26. The rule concretizes the standards of U.S. jurisprudence on the outer limit of publication service as a constitutionally permissible device for affording substitute notice. It specifies what kind of mailing must be effected, apart from publication, to afford personal notice that is required by Mullane,supra note 2.

¹⁷ 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9](L)(1).

¹⁸ 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9](L)(2).

¹⁹ For the terms of 2 O.S.Supp. 1997 § 3-50.7[2-3-50.7](B)(20)(b), see supra note 9.

²⁰ See Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 490-91, 108 S.Ct. 1340, 1348, 99 L.Ed.2d 565 (1988), where after citing Mennonite, supra note 4, 462 U.S. at 800, 103 S.Ct. at 2712, the Court reasoned that a probate creditor's claim is considered a property interest protectible by the Due Process Clause. Upon weighing the probate creditor's interest in recovery against the state's interest in the speedy settlement of estates, the Court held that knownor reasonably ascertainable probate creditors, whose claims arenot merely "conjectural," are entitled to actual notice of thedeadline for submitting claims to the estate's representative.Id. See also Matter of Estate of Pope, 1990 OK 125,808 P.2d 640, 644.

²¹ Mennonite, supra note 4, 462 U.S. at 800,103 S.Ct. at 2712. There, the Court held that "a mortgagee'sknowledge of delinquency in the payment of taxes is notequivalent to notice that a tax sale is pending." Id. (emphasis supplied).

²² Jurisdictional inquiries into judicial cognizance may be considered and examined at any stage of the proceedings, either on motion or sua sponte. Lincoln Bank and Trust Co. v. Okla. Tax Com'n, 1992 OK 22, 827 P.2d 1314, 1318 n. 14; Fields v. A B Electronics, 1990 OK 7, 788 P.2d 940, 941; Hall v. Edge,1989 OK 143, 782 P.2d 122, 124; Baylis v. City of Tulsa,1989 OK 90, 780 P.2d 686, 688; April v. City of Broken Arrow, 1989 OK 70,775 P.2d 1347, 1355; Snyder v. Smith Welding Fabrication,1986 OK 35, 746 P.2d 168, 171; Luster v. Bank of Chelsea, 1986 OK 74,730 P.2d 506, 508; Matter of Initiative Petition Filed Nov. 15, 1983, 1986 OK 13, 718 P.2d 1353, 1354; Cate, supra note 11, at 1356 n. 12; Spain v. Kernell, 1983 OK 105, 672 P.2d 1162,1164-1165; Woods Petroleum Corp. v. Sledge, 1981 OK 89,632 P.2d 393, 394; Pointer, supra note 12, at 361.

²³ Hill v. Stone, 421 U.S. 289, 297, 95 S.Ct. 1637, 1643,44 L.Ed.2d 172 (1975) (the Court found invalid state laws tying voting eligibility to property ownership in elections to approve issuance of bonds to finance a city library).

²⁴ For over thirty years the equal protection clause of theFourteenth Amendment has been consistently interpreted by the U.S. Supreme Court to require "one person, one vote" when electing officials of public entities with general governmental functions.See, e.g., Gray v. Sanders, 372 U.S. 368, 379-80,83 S.Ct. 801, 808-09, 9 L.Ed.2d 821 (1963).

²⁵ In the landmark case of Reynolds v. Sims, 377 U.S. 533,84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court announced that "as a basic constitutional standard, the Equal Protection Clause requires" that the seats in a state legislature "be apportioned on a population basis." Id. at377 U.S. at 568, 84 S.Ct. 1385. This principle is based on the proposition that "people govern themselves through their elected representatives and that `each and every citizen has an inalienable right to full and effective participation in the political processes.'" Board of Estimate v. Morris, 489 U.S. 688,693, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) (quotingReynolds, supra, 377 U.S. at 565,84 S.Ct. 1362). Later cases extended the scope of this doctrine to elections for units of local government. Id.489 U.S. at 692-93, 109 S.Ct. at 1438; Hadley v. Junior College District,397 U.S. 50, 54-55, 90 S.Ct. 791, 794, 25 L.Ed.2d 45 (1970); Avery v. Midland County, 390 U.S. 474, 480-81, 88 S.Ct. 1114, 1118,20 L.Ed.2d 45 (1968) (the Court applied to municipalities the one-person, one-vote doctrine).

²⁶ Kramer, supra note 5; Cipriano, supra note 6; City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990,26 L.Ed.2d 523 (1970).

²⁷ Supra note 6. The Court struck down a Louisiana law that restricted the franchise in revenue bondelections to property owners. Id. 395 U.S. at 706,89 S.Ct. at 1900. See also Police Jury of Parish of Vermilion v. Hebert, 404 U.S. 807, 92 S.Ct. 52, 30 L.Ed.2d 39 (1971), summarily rev'g 258 La. 41, 245 So.2d 349 (in road improvement bond elections the franchise cannot be limited to property holders).

²⁸ Supra note 26. In City of Phoenix the Court extended Cipriano, supra note 6, by striking down Arizona's law that limited suffrage in general obligationbond elections to property-owning taxpayers. The Court held that the interests of property owners and nonproperty owners in the bond issue were not sufficiently disparate to justify excluding those who own no real property. Not only did the persons excluded from voting have a great interest in approving or disapproving municipal improvements, the Court noted, but they also contributed to the servicing of bonds both directly through local taxes and indirectly through increased rents and costs. Id. 399 U.S. at 209-13,90 S.Ct. at 1994-96.

²⁹ On the same day that Cipriano was decided, the Court in Kramer, supra note 5, invalidated a New York statute restricting franchise in school district elections to those residents who owned or leased taxable real property within the district or had a child enrolled in the local school. Applying the strict scrutiny standard of review, the Court opined that any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.Id. 395 U.S. at 627, 89 S.Ct. at 1890.

³⁰ Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) (the Court approved limiting the franchise to landowners for choosing the board of directors of a local water storage district); Ball v. James, 451 U.S. 355, 370, 101 S.Ct. 1811, 1820, 68 L.Ed.2d 150 (1981) (extending the Salyer special-purpose exception to encompass a water district serving nearly half the population of the state, the Court notes that "an aspect of that limitedpurpose is the disproportionate relationship the District'sfunctions bear to the specific class of people whom the systemmakes eligible to vote"). The Court summarized the exception it had created in Salyer by stating that "the electorate of a special-purpose unit of government . . . may be apportioned to give greater influence to the constituent groups found to be most affected by the governmental unit's functions." Town of Lockport v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259, 266, 97 S.Ct. 1047, 1052-53, 51 L.Ed.2d 313 (1977).

The dissenters in Salyer respond that because the activities of the water district implicate the entire community, the franchise in water district board elections must be extended to all residents. Salyer, supra, 410 U.S. at 735,93 S.Ct. at 1234 (Douglas, J., dissenting). The Ball dissenters, on the other hand, view the Court's opinion asmisapplying the limited-exception recognized inSalyer. They point out that (a) the water district's broad authorization over the field of energy transcends the limited functions of the district in Salyer; and (b) the burdens of the water district in Salyer fell entirely on the landowners served by the district, but the financial burden in Ball had been shifted from the landowners to allconsumers of electricity. Ball, supra,451 U.S. at 375-76, 101 U.S. at 1823-24 (White, J., dissenting).

³¹ The pertinent terms of 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9] are:

"A. At the request of the board of directors, the Department shall provide for a referendum among cotton growers upon the question of whether an assessment shall be levied upon cotton growers in the state to offset the cost of boll weevil eradication.

* * *

C. All cotton growers actively engaged in the production of cotton in the year of the calling of such referendum or who were actively engaged in production of cotton in any two (2) of the three (3) years immediately preceding the calling of the referendum shall be entitled to vote in any such referendum. The board of directors shall determine any questions of eligibility to vote.* * *"

³² For the pertinent provisions of 2 O.S.Supp. 1997 § 3-50.9[2-3-50.9], see supra note 31.

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