St. Chamber of Okla. v. Cobbs

545 P.3d 1216

2024 OK 13

STATE CHAMBER OF OKLAHOMA, Oklahoma Farm Bureau Legal Foundation, Chad Warmington, and Tommy Salisbury, Protestants/Petitioners,

v.Kelsey COBBS and Dustin Phelan, Proponents/Respondents.

No. 121,777

Supreme Court of Oklahoma.

Filed March 4, 2024

Rehearing Denied April 1, 2024

ORDER

¶1 The Court hereby assumes original jurisdiction pursuant to 34 O.S.2021, § 8 and denies all relief. Title 34 O.S.2021, § 8(B) provides the public with a right to "file a protest as to the constitutionality of the [initiative] petition, by a written notice to the Supreme Court and the proponent or proponents filing the petition." Subsections (C) and (D) of section 8 provide for a hearing for and against the sufficiency of the petition and for this Court to decide whether such petition is in the form required by the statutes. Initiative Petition No. 446 does not clearly or manifestly violate either the Oklahoma or United States Constitution. See In re Initiative Petition No. 420, State Question No. 804, 2020 OK 9, ¶ 14, 458 P.3d 1088, 1093-94; In re Initiative Petition No. 362, State Question 669, 1995 OK 77, ¶ 12, 899 P.2d 1145, 1151. Initiative Petition No. 446 is legally sufficient. See In re Initiative Pet. No 358, 1994 OK 27, ¶ 7, 870 P.2d 782, 785. Respondents may proceed in the gathering of signatures on the initiative petition.

¶2 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 4^TH DAY OF MARCH, 2024.

/s/ Douglas L, Combs

ACTING CHIEF JUSTICE

KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH, and DARBY, JJ., concur.

KUEHN, J. (by separate writing), concurs in part and dissents in part.

KANE, C.J. (by separate writing), and ROWE, V.C.J. (by separate writing), dissent.

KUEHN, J. CONCURRING IN PART, DISSENTING IN PART:

¶1 I agree with the Majority that Initiative Petition 446 should go to a vote of the people. I disagree with its decision to determine whether the Petition itself violates the Oklahoma Constitution.

¶2 This challenge offers this Court the opportunity to review the extent of its jurisdiction under Title 34, which governs the initiative and referendum process. I take that opportunity in the context of the Oklahoma Constitution, a notoriously populist document, which states that "[a]ll political power is inherent in the people…[,]" who may alter or reform its government for the public good, in accordance with the United States Constitution. Okla. Const. art. 2, § 1. The ability to legislate by initiative petition is the first power reserved to the People in the Oklahoma Constitution. Okla. Const., art. 5, § 2. The People reserved power to themselves to propose laws, pass on legislation, amend the Constitution, and vote on those proposals without legislative action. Okla. Const. art. 5, § 1. "The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law." In re Initiative Petition No. 382 State Question No. 729, 2006 OK 45, ¶ 3, 142 P.3d 400, 403. "All doubt as to the construction of pertinent provisions is to be resolved in favor of the initiative and such legislation is to be given the same liberal construction as that afforded election statutes generally." In re Initiative Petition No. 348 State Question No. 640, 1991 OK 110, ¶ 5, 820 P.2d 772, 775 (quoting Oliver v. City of Tulsa, 1982 OK 121, ¶ 31, 654 P.2d 607, 613).

¶3 We first considered initiative petitions in 1910 and concluded that the judiciary should not interfere with the initiative petition process by determining the constitutionality of the merits of a petition before it was put to a vote. Threadgill v. Cross, 1910 OK 165, ¶¶ 15-22, 26 Okla. 403, 109 P. 558, 561- 62. This remained our position for decades. In 1975 our previous path of restraint ended. We decided that where an initiative petition violated the Oklahoma Constitution, and this Court’s "determination could prevent a costly and unnecessary election," we may intervene in the initiative petition process before an election is held. In re Supreme Court Adjudication of Initiative Petitions in Norman, Okla. Numbered 74-1 and 74-2, 1975 OK 36, ¶ 19, 534 P.2d 3, 8. As late as 1992, however, this Court recognized a limitation to this authority. In re Supreme Court Adjudication etc. allowed review of constitutional claims where the provisions were not severable from the remainder of the petition, but "[w]here the questioned provision is severable, and resolution of constitutional issues prior to the act becoming law would not prevent a costly and potentially unnecessary election. ," Threadgill would apply. In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, ¶ 25, 813 P.2d 1019, 1030-31; see, e.g., In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, ¶ 7 n. 15, 870 P.2d 782, 786 n.15; In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 15 n. 18, 838 P.2d 1, 7 n.18; In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, ¶ 5, 649 P.2d 545, 548. Under this interpretation, of course, Threadgill would apply here, since the provision at issue in Initiative Petition 446 is severable from the petition as a whole. However, we appear to have abandoned even this simple safeguard, and the exception has swallowed the rule.

¶4 In its current interpretation of the law, this Court may control whether an initiative petition goes to the people for a vote by considering and deciding its constitutional merits. However, Supreme Court Adjudication of Initiative Petitions in Norman did not articulate in a legal context how this exception to an inherent power reserved to Oklahoma citizens exists. We noted that Title 34, Section 8 placed with this Court administrative duties regarding the initiative petition procedure, and stated, "We believe this court is not limited solely to the duties of an administrative officer or act." Supreme Court Adjudication of Initiative Petitions in Norman, 1975 OK 36, ¶ 19, 534 P.2d at 8. Belief is not a legal reason. It is a justification. The Court was justifying its desire to decide the constitutional issue. But our authority does not come from the beliefs of either individual Justices or the Court as a whole.

¶5 This Court’s expansion of our pre-election review of initiative petitions exceeds our constitutional mandate. Our jurisdiction is limited to "all cases at law and in equity." Okla. Const. art. VII, § 4. We may decide what the law is, but we cannot "say what law shall or shall not be enacted." Cress v. Estes, 1914 OK 361, 43 Okla. 213, 142 P. 411, 412. The Legislature has provided for appeals to this Court from a protest to an initiative petition. 34 O.S. §§ 8, 10. Any citizen may protest the sufficiency or constitutionality of an initiative petition by filing written notice with its proponents and this Court. 34 O.S. § 8(B). However, the scope of our review is limited and does not include a determination of constitutionality pre-election. The Legislature merely authorizes the Court, upon review, to "decide whether such petition is in the form required by the statutes," and determine the "numerical sufficiency or insufficiency" of the signatures. 34 O.S. § 8(D), (H). Upon review of a ballot title this Court may correct or amend it, accept a proposed substitute, or draft a new title conforming to statutory provisions. 34 O.S. § 10(A). These statutory provisions empower this Court to ensure that the form of a proposed initiative petition is correct but say nothing about review of the substance of the petition.

¶6 Justice Rowe, in dissent, concludes that Section 8(B) implicitly authorizes us to review a constitutional challenge pre-election. But that is not what Section 8 says. We must read statutes as a whole, giving effect to each provision. Oklahoma Dept. of Corrections v. Byrd, 2023 OK 97, ¶ 27, 542 P.3d 845. The literal language of the statute (a) sets forth the types of challenges which may be made, and (b) sets forth the scope of this Court’s review. The two are not contemporaneous. Of course, this Court has the authority to hear a constitutional challenge to any measure which is passed and enacted into law. But neither the Oklahoma Constitution nor the initiative petition statute compels this Court to address such a challenge before it is ripe—before there is any law to discuss. As Justice Wyrick said, "If our job is to ‘say what the law is,’ and in a constitutional challenge thus to say whether the Constitution prohibits another law from having an effect on these parties, then we cannot do that without first having a law." Oklahoma Independent Petroleum Association v. Potts, 2018 OK 24, ¶ 12, 414 P.3d 351, 365 (Wyrick, J., specially concurring). And I cannot agree to rely on case law precedent to weigh a pre-election constitutional challenge, as that precedent—justifying our inferred authority from Section 8(B)—rests on nothing more than this Court’s "belief" that it has that authority.

¶7 Why, then, has the Court since 1975 insisted on its ability to review and decide these constitutional questions? After reviewing the case results I reluctantly conclude that over the last few decades this Court has been motivated by a desire to ensure that certain measures are either on or off the ballot—to decide for itself what the People should or should not put to a vote.

¶8 This Court claims that it will step in only where a petition is clearly or manifestly unconstitutional. See, e.g., In re Initiative Petition No. 362 State Question 669, 1995 OK 77, ¶ 12, 899 P.2d 1145, 1151. First, neither art. 5 nor Title 34 says that the People may only introduce and pass laws which comport with current statutory or constitutional law. Citizens may use the initiative petition to articulate state policy, in order to prepare for potential changes in the law or influence subsequent case law or legislation. Oklahoma Independent Petroleum Association, 2018 OK 24, ¶¶ 15-18, 414 P.3d at 365-67 (Wyrick, J.,...