In re Initiative Petition No. 358, State Question No. 658

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In re Initiative Petition No. 358, State Question No. 658
1994 OK 27
870 P.2d 782
65 OBJ 886
Case Number: 82041
Decided: 02/24/1994
Supreme Court of Oklahoma

IN RE INITIATIVE PETITION NO. 358, STATE QUESTION NO. 658.

ORIGINAL PROCEEDING PROTEST TO INITIATIVE PETITION No. 358, STATE QUESTION No. 658.

¶0 Initiative Petition No. 358, State Question No. 658, proposes a statutory scheme that would establish a state lottery. Protest to the sufficiency of Initiative Petition No. 358 was timely filed, challenging the constitutionality of the contents of the proposed legislative measure. We find Initiative Petition No. 358 is sufficient and it should be submitted to a vote of the people as State Question No. 658.

INITIATIVE PETITION No. 358 IS SUFFICIENT TO BE SUBMITTED TO A VOTE OF THE PEOPLE AS STATE QUESTION No. 658

Daniel J. Hoehner, Chubbuck, Bullard & Hoehner, Duchess Bartmess, Oklahoma City, for protestants.

Lee Slater, Thomas L. Spencer, York & Slater, Oklahoma City, for proponents.

ALMA WILSON, Justice:

[870 P.2d 783]

¶1 The issue presented is whether Initiative Petition No. 358 is insufficient because the proposed legislative measure violates the Oklahoma Constitution. We find and hold that Initiative Petition No. 358 is sufficient and should be submitted to a vote of the people of the State of Oklahoma as State Question No. 658.

¶2 On April 19, 1993, Oklahoma Best, Inc., Douglas A. Branch and Melvin C. Hall (proponents) caused Initiative Petition No. 358, State Question No. 658 to be filed with the Secretary of State. The signed copies of the initiative pamphlets were returned to the Secretary of State within ninety days, on July 15, 1993.

¶3 Initiative Petition No. 358, State Question No. 658 proposes enactment of the "Oklahoma Lottery Act" which consists of thirty-one sections including the short title, severability clause and repealer of conflicting provisions. Review of the proposed statutory scheme reveals that its contents are generally explained in the suggested Ballot Title and the gist of the proposition set forth on the [870 P.2d 784] signature pages which provide:

¶4 The protest and briefs in support assert that the proposed measure is unconstitutional on its face and that its implementation will violate our state constitution. The Protestants contend that resolution of their constitutional challenges will avoid a needless election and spare the people of the futile effort of voting on a measure which could not be applied or enforced because its provisions are constitutionally unacceptable. Proponents respond that the proposed Lottery Act is not unconstitutional on its face, but if any provision is found to be facially invalid, that part should be stricken under the severability clause and the petition, as amended, should be submitted to a vote of the people. While agreeing with protestants that this Court may review the constitutional challenges to the proposed legislation, proponents argue that this Court may not withhold the proposed measure from the voters except upon a finding that the constitutional violation strikes at the very heart of the proposed measure.

¶5 This Court has jurisdiction to entertain protests to initiative petitions pursuant to Section 8 of Title 34 of the Oklahoma Statutes.

[870 P.2d 785]

¶6 With the 1973 statutory change, exception to the Threadgill rule of withholding pre-election determination of the constitutionality of the contents of a proposed legislative measure was carved out in In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, 534 P.2d 3 (Okla. 1975). The exception to Threadgill v. Cross formulated in In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma is grounded in the separation of powers doctrine, which prevents the Legislature from enjoining purely administrative duties upon this Court, and the inherent power of this Court, upon a proper request, to grant extraordinary relief from the costly expenditure of public revenues on a needless election.

¶7 The doctrine of separation of powers

¶8 Previously this Court reviewed the contents of an initiative measure proposing a statutory scheme for a state lottery and determined the initiative petition to be invalid. In re Initiative Petition No. 332, 776 P.2d 556 (Okla. 1989). In that case, the proposed statutes would have allowed the Lottery Commission to distribute lottery proceeds for public purposes without any guidelines as to the object or state agency to be benefitted or the amounts to be disbursed. We held that the proposed measure, on its face, would delegate the purely legislative power of appropriation contrary to Art. IV, § 1 and Art. V, § 55, Okla. Const.

¶9 The protestants rely on In re Initiative Petition No. 332 for their contention that the instant proposed measure would unconstitutionally delegate fiscal policy making because the Lottery Authority has unbridled authority to create the formula for determining gross revenues and net revenues. Unlike the clear facial constitutional infirmity found in In re Initiative Petition No. 332, the instant proposed measure specifies the percentage of gross lottery revenues to be paid into the state treasury and the purposes for which the revenues may be appropriated by the Legislature.

¶10 Protestants also argue that the proposed measure, taken as a whole, would legalize lottery gaming for the profit of a special class of the five members of the board of directors and that the Lottery Authority will be vested with powers of all three branches of government to be exercised free from state control contrary to several constitutional provisions. They assert that the benefits to the state are too speculative to establish a relationship between the Lottery Authority and the state and therefore the proposed measure creates a private corporation contrary to Art. V, § 59, Okla. Const., with special privileges contrary to Art. 11, § 32 , Art. V, § 51, and Art. IX, § 38, Okla. Const.

¶11 In In re Initiative Petition No. 315, State Question No. 553, 649 P.2d 545, 547 (Okla. 1982), this Court said that if a part of a proposed measure which could not be severed without defeating the whole is challenged, then the contents of the proposed measure would be reviewed under the authority of In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, supra. In that case, we found that two sections relating to taxation and county option were integral to the proposed parimutuel betting scheme and non-severable and, hence, reviewed those sections for constitutional infirmity.

¶12 The integral parts of the instant proposed measure are those provisions which authorize a state lottery and provide a mechanism for operation of the lottery.

¶13 The protestants also contend that the proposed measure would amend existing law by reference contrary to Art. V, § 57, Okla. Const., and that, in vague, ambiguous and conflicting language, the proposed measure would vest the Lottery Authority with executive and judicial powers contrary to Art. IV, § 1, Okla. Const. Again, these arguments require interpretation of the proposed measure and will not be reviewed. Because we refuse to consider protestants' constitutional challenges to the interpretation and implementation of the contents of the legislation proposed by Initiative Petition No. 358, proponents' application that we disregard arguments raised for the first time in protestants' reply brief is rendered moot.

¶14 Initiative Petition No. 358 is legally sufficient for submission to a vote of the people as State Question No. 658. Petitions for Rehearing, if any, shall be filed within twenty days of the filing of this opinion with the Clerk of the Appellate Courts.

¶15 HODGES, C.J., and HARGRAVE, SUMMERS and WATT, JJ., concur.

¶16 OPALA and KAUGER, JJ., concur in result.

¶17 LAVENDER, V.C.J., and SIMMS, J., dissent.

Footnotes:

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If placing of such duties upon such ministerial officers gives in turn to them the right and power to question the validity of any or all the amendments proposed, and to refuse to act when they decide that such proposed measure will be invalid, then the most subordinate ministerial officers of the state having any duties to perform in connection with an election may himself do indirectly that which he could not have, nor any other citizen of the state have the courts do by proceeding instituted for that purpose, to wit, pass upon the validity of the proposed measure and stay the election by a judicial decree, if it be determined that the proposed measure is invalid.

Threadgill v. Cross, 109 P. at 562.

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Both proponents and opponents of these initiative petitions have argued the constitutional questions. In considering the sufficiency of these petitions, this court was made cognizant of its statement as to consideration of the constitutionality of an initiative petition in Oklahomans for Modern Alcoholic Beverage Controls v. Shelton, 501 P.2d 1089 (1972). There Threadgill et al. v. Cross, 26 Okla. 403, 109 P. 558 (1919) was cited. Under present initiative procedure, 34 O.S.Supp. 1973 § 8 , administrative duties formerly placed on administrative officials have been legislated directly to this court. We believe this court is not limited solely to the duties of an administrative officer or act. It may consider the constitutionality of matters to be considered under the initiative and referendum process as to procedure form and subject matter, when raised, and if in this court opinion such a determination could prevent a costly and unnecessary election.

In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, 534 P.2d at 8.

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In In re Initiative Petition No. 347, State Question No. 639, 813 P.2d 1019 (Okla. 1991), we considered the federal constitutional challenge and some state constitutional challenges to proposed legislation on public school funding. We refused to consider constitutional challenges to sections of the proposed measure that appear to be severable and therefore would not prevent a costly and potentially unnecessary election expressly relying upon Threadgill v. Cross.

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KAUGER, Justice, concurring in result:

¶1 I concur with the result reached by the majority. However, I write separately to emphasize that the majority opinion should not be read to signal a return to the teaching of Threadgill v. Cross, 26 Okla. 403, 109 P. 558 (1910). Threadgill prohibited the consideration of even a patently unconstitutional measure before it was submitted to the vote of the people. After In re Initiative Petition [870 P.2d 788] No. 349, 838 P.2d 1, 11 (Okla. 1992), In re Supreme Court Adjudication of Initiative Petition in Norman, Oklahoma No. 74-1 & 74-2, 534 P.2d 3, 8 (Okla. 1975) and Oklahomans for Modern Alcoholic Beverage Control v. Shelton, 501 P.2d 1089 (Okla. 1972), Threadgill is viable only to the extent that: a proposed provision is not severable; the constitutional challenge is "nothing more than an abstract opinion on a hypothetical question";

¶2We advised parties of the dangers of relying on the narrow teachings of Threadgill in In re Initiative Petition No. 349, 838 P.2d 1, 11 (Okla. 1992). We said:

"Even though the proponents continue to cling to Threadgill v. Cross, 26 Okla. 403, 109 P. 558, 562 (1910), this Court implicitly recognized in 1975, that the Threadgill doctrine was frequently nothing more than a rationalization for deferring obvious issues of constitutionality. The effect of this doctrine, especially when it involves transparently unconstitutional proposals, is subject to the perception by the citizens of our state that their votes, so eagerly solicited, are ultimately meaningless acts in an elaborate charade. The danger of Threadgill is that, in effect, citizens may be led to believe that their votes on matters of intense public concern count, when this Court is already fully aware that the proposed measure is subject to being struck down as unconstitutional within months should the voters approve it. Conversely, the vote on an indisputably unconstitutional measure will almost certainly be distorted by wide-spread citizen awareness of the invalidity of the measure. In any event, a truly meaningful vote on the initiative becomes impossible.

The underlying sense of our cases dating back to 1975 is that Threadgill trumpets a triumph of form over substance which calls into question the very legitimacy of the initiative process itself by merely postponing the inevitable. For seventeen years, the majority of this Court has understood that the Threadgill doctrine has been modified to the extent that it no longer operates as a bar to the pre-submission review of constitutional defects in initiative proposals."

¶3 The public should be advised that this Court will not refrain from addressing viable constitutional challenges to a measure in order to prevent a costly and meaningless election. Likewise, the inclusion of abstract constitutional challenges to possible defects will not result in a judicial activism intended to circumvent the right of the people to cast their votes in the initiative process.

Footnotes:

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OPALA, Justice, concurring in result.

¶1 The court declares today that the initiative measure under consideration - which would establish a state-run lottery - qualifies for submission to a vote of the people. While I concur in clearing the measure for an election. I write separately to reiterate my views on the outer limit of permissible scrutiny an initiative measure may undergo when it is before us upon a protest for alleged legal deficiency.

¶2 I would not undertake to test the validity of a measure's content before its adoption by a vote of the people. My commitment to the undiluted force of Threadgill v. Cross

¶3 While on its journey to the ballot box a measure proposed by initiative petition is entitled to the same judicial deference that is accorded a legislative bill in progress. Judges cannot police the lawmaking process for conformity to the constitution without raising an impermissible restraint on the free exercise of political activities.

THREADGILL AND ITS PROGENY

¶4 Threadgill, which enjoyed full and unlimited sway from 1910 until 1975, teaches that an initiative petition need only pass a procedural threshold test to qualify for submission to a vote of the people. It must (a) be in substantial compliance with the sine qua non procedural requirements for submission and bear the requisite number of valid signatures, (b) address but a single subject and (c) deal with a subject not explicitly excluded from the people's lawmaking power. Unless a fatal procedural impediment be found in one of these categories, a petition must be cleared for a vote. All constitutional challenges to an initiative's content will be postponed to await the measure's adoption as enforceable law. They may later be pressed in the context of a lively forensic controversy between antagonistic adversaries by parties with legal standing to sue.

[870 P.2d 790]

¶5 Threadgill should be kept in full force because it raises a necessary barrier of insulation between the judicial department's judicature and the people's lawmaking. The former is a function of judges, the latter of the people. Any departure from the basic teachings of Threadgill creates an impermissible burden on the people's fundamental-law power to initiate and pass measures that may change the state's constitution as well as her statutes.

The Prudential-Rule-of-Necessity Barrier To Deciding Purely Academic Questions

¶6 Moreover, the "prudential rule of necessity", adhered to by all state and federal courts, commands that constitutional issues not be resolved in advance of strict necessity.

II

CONSTITUTIONAL ORTHODOXY MAY NOT BE IMPRESSED ON THE POLITICAL PROCESS OF INITIATIVE LAWMAKING

¶7 The process of changing statutory law or the state's constitution by initiative petition is a form of lawmaking. Lawmaking is a political process. Judicial pre-enactment scrutiny of proposed legislation for constitutional flaws raises an impermissible restraint on the free exercise of political activity.

[870 P.2d 791]

¶8 Public debate on an unenacted measure and the electorate's claim to its adoption is every bit as protected by Art. 2, § 22 , Okl.Const.,

¶9 Only in the clearest case of firmly settled and stable constitutional jurisprudence that absolutely condemns a proposed measure as facially impossible of enforcement, application or execution - and then only if the protestants have standing to complain of constitutional infirmity - should this court ever undertake to trump an initiative petition that is on its journey to the ballot box.

SUMMARY

¶10 Because of my continued and unswerving commitment to Threadgill's teachings, I would not test for constitutional orthodoxy the content of an initiative petition in advance of its submission and adoption.

[870 P.2d 792]

¶11 The measure under consideration is fit for submission; I hence concur in the court's disposition of the protest but not in its pronouncement.

Footnotes:

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"Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right. . . ."

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"The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature." (Emphasis added.)

In Oklahoma Tax Commission v. Smith, Okl., 610 P.2d 794, 807 (1980), we stated that Art. 5, §§ 1, 2 and 7, Okl.Const., together "comprise an initiative system whereby both the people and the Legislature may propose legislation independently, and neither can block the effort of the other during the process. . . ." Our teaching in Smith applies with equal force to bar judicial as well as legislative interference with initiative process. Courts should be loath to impose judicial restraint on the electorate's power to make law. As the Arizona Supreme Court aptly remarked in State v. Osborn, 16 Ariz. 247, 248, 143 P. 117, 118 (1914), to place court-imposed restrictions "would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.

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Our constitution's initiative provisions not only guarantee the right to vote on a proposed measure, they also afford the people a valued opportunity to ventilate - i.e., to air issues in a free political debate. This court has a constitutionally mandated duty to uphold and safeguard free pre-election ventilation of political views. See In re Initiative Petition No. 314, Okl., 625 P.2d 595, 613 (1981) (Opala, J., concurring), where I observe that a measure's submission too close to an election would deprive its proponents as well as the contestants of a fundamental right to inform the public about the merits and demerits of the issue before the electorate.

"All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace, be privileged from arrest during their attendance on elections and while going to and from the same."

17The terms of Art. 2, § 4 , Okl.Const., are:

"No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right." (Emphasis added.)

18The right of a qualified elector to vote and have that vote counted is basic and fundamental. McCarthy v. Slater, Okl., 553 P.2d 489, 490 (1976); Sparks v. State Election Board, Okl., 392 P.2d 711, syllabus 1 (1964). See Jackson v. Maley, Okl., 806 P.2d 610, 623-624 (1991) (Opala, C.J., dissenting).

19The only options available as a remedy against invasive initiative power are (a) to curb - as Justice Mosk suggests - the people's power to create chaos by constitutional amendment defining areas of regulation that lie outside the reserved power of initiative or (b) to act judicially and invalidate an actually adopted measure when it visits crippling damage to the operations of government by causing institutional paralysis. In re Initiative Petition No. 348, supra note 2, 820 P.2d at 787 (Opala, C.J., concurring in result). For Justice Mosk's observations about the limits of the electorate's power to legislate by initiative petition, see Kennedy Wholesale v. Bd. of Equalization, 53 Cal. 3d 245, 279 Cal. Rptr. 325, 332, 806 P.2d 1360, 1367 (1991) (Mosk, J., concurring).