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City of Enid7/5/2005
Analysis under art. 5, § 59 is unnecessary and any such analysis would only contribute to the existing confusion of the separate requirements of each of these two constitutional provisions.
We note that Union surveyed numerous statutes containing population-based classifications and warned that this case may affect all those statutes. This warning is unfounded because each statutory classification challenged under either art. 5, § 46 or art. 5, § 59 must be considered in light of the subject of the particular statute.
VI. The Home-rule Doctrine
The City of Enid challenged the Act as contrary to the Okla. Const., art. 18, § 3(a) and the home-rule doctrine. Although the district court did not rule on this constitutional issue, the parties presented argument on the home-rule doctrine in their briefs filed in this Court. Without addressing a constitutional issue not ruled on below, we note that more than a quarter of a century ago, this Court put to rest a similar challenge to the firefighters and police officers arbitration statutes. Midwest City v. Cravens, 1975 OK 22, , 532 P.2d 829, 834, concluded that "the privilege of communicating with their respective employers with a collective voice involves a matter of state-wide concern and the Act authorizing them [firefighters and police officers] to speak through a collective voice supersedes any charter provisions to the contrary." City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, 845 P.2d 872; City of Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604. If the Act had been couched as a statewide concern applying to every city, the home-rule doctrine would not have prevented it. But the Act applies to only a very few cities, and therefore it is unconstitutional. The home-rule doctrine is not a dispositive issue.
VII. Severability
PERB and Union request that we save the Act by severing the 35,000-population restriction in the definition of "municipal employer" if we decide it causes a constitutional infirmity. The City of Enid suggests that the 35,000-population restriction was the compromise that garnered the votes to pass the legislation. It opposes severability.
A strong preference for severability is entrenched in our law. There is a statutory presumption that the provisions of an act are severable. 75 O.S.2001, § 11a. A principle goal of judicial rules of statutory construction is to save and to not destroy, and severability allows the non-offending language of an act to be saved. See Ethics Commission of State of Oklahoma v. Cullison, 1993 OK 37, 850 P.2d 1069. The offending language will be severed if it is apparent that the Legislature would have enacted the law without it and the non-offending language is capable of standing alone. In re Application of the Oklahoma Dep. of Trans., 2002 OK 74, , 64 P.3d 546, 553.
In Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, 714 P.2d 198, this Court severed a 35,000-population restriction that offended art. 5, § 46. In Maule, the school district collective bargaining statutes provided a means for determining labor unions' competing claims of representation in school districts with 35,000 or more average daily attendance (ADA). The defendant school district had less than 35,000 ADA but was faced with competing union claims of representation. Maule determined that the 35,000-ADA restriction was "an entirely arbitrary norm" and "would result in an unreasonable application of a special law" in violation of the Okla. Const., art 5, § 46. Id. at , 714 P.2d at 203-204. Concluding that the Legislature may not deal with any phase of public school administration except by a statute which has
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