Sharp v. Tulsa County Election Board

SUPPLEMENTAL OPINION ON REHEARING

LAVENDER, Justice:

Petitioner, Mark A Sharp has requested rehearing of our opinion dated September 20, 1994. Respondent, Tulsa County Election Board and protestant, Hester Tyler White were afforded an opportunity to file responses to the petition by Order of this Court. Respondent filed a pleading waiving any response and protestant filed no response. We, therefore, rule on this matter without responses from respondent or protestant.

Petitioner asks for modification of our opinion to allow him to serve out the remainder of his term as a school board member for the Jenks public schools. He relies on a recent amendment to 70 O.S.Supp.1993, § 5-113 to support his position. The pertinent amendment was approved in June 1994 and can be found at 1994 Okla.Sess.Law Serv. Ch. 360, § 8 and is codified at 70 O.S.Supp. 1994, § 5-113. We grant rehearing and issue this supplemental opinion for the limited purpose of holding that petitioner be allowed to serve out the remainder of his term based on the recent amendment to § 5-113.

Between the time we initially granted the writ of mandamus requiring respondent to place petitioner’s name on the ballot for the school board election and issuance of our opinion vacating that writ and allowing petitioner to resign his seat on the board within thirty (30) days from the date our opinion becomes final, the Legislature amended § 5-113. The relevant change as pertinent here is that the “grandfather” clause contained in § 5-113 was amended to read as follows: “[The anti-nepotism] prohibitions shall not apply to prevent members of boards of education who are serving on September 1, 1994 from serving the term for which they were elected.” (emphasis added). Basically, petitioner argues the plain words of the amendment apply to him because he was serving on September 1, 1994 a term on the school board for which he was elected in February 1994. We agree the amendment applies to petitioner’s situation.1

In American Insurance Association v. State Industrial Commission, 745 P.2d 737 (Okla.1987), we held unless on review there is some liberty or property interest which requires us to apply to the accrued or vested rights in controversy the law in force at a fixed point in time prior to its most recent change, an amendment of controlling statutory law between the trial court and appellate decisions compels the appellate court to apply the latest version of the pertinent law. Id. at 740. In our view this principle applies to the instant matter.

The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Commission, 764 P.2d 172, 179 (Okla.1988). Further, the cardinal rule of statutory construction is to begin with the language used and courts should not read into a statute exceptions not made by the Legislature. Id. Here, the language of amended § 5-113 expressly provides that the anti-nepotism provisions of the statute shall not prevent members of boards of education who were serving in that capacity on September 1, 1994, from serving the remainder of the term for which they were elected. No exceptions are made by the Legislature.

Although petitioner most probably was only a de facto member of the board on September 1, 1994, the fact is that he was serving as a school board member on such date. Petitioner was in no different position on September 1, 1994 from any other school *847board member who was in violation of the anti-nepotism provisions of § 5-113, but was serving as a board member on said date. The only difference in petitioner’s case was that we issued a writ allowing him to be a candidate for such office because someone (Hester White Tyler) contested his candidacy. Such difference, in our view, is insufficient to warrant non-application of the new “grandfather” date to petitioner.

The bottom line here is that by extending the “grandfather” clause date from September 1, 1992 to September 1, 1994, the Legislature plainly expressed its intent to allow those board members serving on September 1, 1994, who were then in violation of the anti-nepotism provisions of § 5-113, to continue to serve the remainder of the term for which they were elected. In our view, this amendment expressly applies to petitioner because he was serving as a board member on such date.

Accordingly, we grant the petition for rehearing, apply amended § 5-113 to this matter and issue this Supplemental Opinion On Rehearing for the limited purpose of holding that petitioner be allowed to serve out the remainder of his term as a school board member. In conformity herewith petitioner need not resign his seat on the school board to avoid the penalties attached to violation of § 5-113 and he is not ineligible to serve on the School Board effective thirty (30) days from the date our opinion of September 20, 1994 becomes final. Except for the modifications set out herein our opinion of September 20, 1994 remains unchanged. IT IS SO ORDERED.

. In that we agree with petitioner's statutory argument it is unnecessary for us to discuss or rule on his alternative equitable argument to the effect we have the authority to and should allow him to serve out the remainder of his term in the interest of the public.