Steele v. Pruitt

378 P.3d 47

2016 OK 87

Kris Steele, Rev. Dr. George E. Young, Tom Ward and Oklahomans for Criminal Justice Reform, Inc., Petitioners,

v.The Honorable Scott Pruitt, Attorney General of Oklahoma, Respondent.

No. 115,190

Supreme Court of Oklahoma.

FILED AUGUST 8, 2016

Rehearing Denied August 19, 2016

D. Kent Meyers, Melanie Wilson Rughani, and Paige Masters, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Petitioners.

Cara N. Rodriguez, General Counsel and Sarah A. Greenwalt, Assistant Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Respondent.

COMBS, V.C.J.:

FACTS AND PROCEDURAL HISTORY

¶ 1 On January 27, 2016, the proponents of Initiative Petition No. 404, State Question 780 and Initiative Petition No. 405, State Question 781, Kris Steele, Rev. Dr. George E. Young, Sr., Tom Ward, and Oklahomans for Criminal Justice Reform, Inc. (collectively Petitioners), filed both petitions and their ballot titles with the Secretary of State pursuant to 34 O.S. Supp. 2015, § 8 (A). The ballot titles read as follows:

The Petitioners' Original Filed Ballot Titles (January 27, 2016) :

Initiative Petition No. 404 :

This measure amends statutes to reform criminal sentences for certain property and drug offenses. It makes certain property offenses misdemeanors. It makes simple drug possession a misdemeanor. Property offenses where the value of the property is one thousand dollars or more remain felonies, and the distribution, possession with intent to distribute, transportation with intent to distribute, manufacture, or trafficking of drugs remain felonies.

Initiative Petition No. 405 :

This measure creates the County Community Safety Investment Fund. The fund consists of costs saved by reclassifying as misdemeanors certain property crimes and drug possession. The funds must be distributed to counties for the purpose of funding rehabilitative programs, such as mental health and substance abuse treatment programs. This measure only becomes effective if voters approve State Question 780 the Oklahoma Smart Justice Reform Act.

¶ 2 Neither petition was challenged pursuant to 34 O.S. Supp. 2015, § 8 (C) and accordingly, both were circulated throughout the state for signatures. On June 2, 2016, the Petitioners filed their signed petitions with the Secretary of State. Thereupon, the Secretary of State submitted a copy of the Petitioners' proposed ballot titles to the Attorney General, Scott Pruitt (Respondent), pursuant to 34 O.S. Supp. 2015, §§ 8 (H) and 9 (D), for his review of their legal correctness. On June 9, 2016, the Respondent notified the Secretary of State that the ballot titles did not comply with the law and he would submit alternate ballot titles. The Respondent had the following issues with the Petitioners' ballot titles:

Initiative Petition 404 Ballot Title¹ :

It fails to explain in basic words the effect of the proposition because:

1. It fails to explain that distinctions within simple drug possession charges are no longer made based on the type of drug possessed.

2. It fails to explain that enhancements based on the number of possession offenses and on the location of the offense have been removed.

3. It fails to state that the value of the property for the identified felony property offenses increased from $500 to $1000.

Initiative Petition 405 Ballot Title² :

It fails to explain in basic words the effect of the proposition because it does not explain that the Office of Management and Enterprise Services will be responsible for calculating the funds to be deposited in the County Community Safety Investment Fund and that these calculations will be based on actual data or best available estimates.

¶ 3 On June 22, 2016, the Respondent submitted the following rewritten ballot titles:

AG Rewritten Initiative Petition 404 Ballot Title:

This measure changes state law to reduce the punishments for drug possession and certain property offenses.

Under current law, drug possession is a felony when, for example:

• The drug is one that has a high potential for abuse;

• The person possessing the drug has a prior conviction for drug possession;

• The person possessed the drug within 1,000 feet of a public or private school or public park; or

• The person possessed the drug in the presence of a child under the age of twelve.

If voters approve this measure, these sorts of drug possession crimes would be misdemeanors instead of felonies.

The measure also changes the law for certain property crimes like grand larceny, embezzlement, and writing two or more bogus checks. Under current law, if the value of the property involved in those crimes is more than $500, the crime is a felony. If it is less than $500, the crime is a misdemeanor. This measure would raise that amount to $1000, so that any crime involving less than $1000 worth of property would be a misdemeanor, rather than a felony.

AG Rewritten Initiative Petition 405 Ballot Title:

This measure creates the County Community Safety Investment Fund (“Fund”), but only if voters also approve State Question 780, the Oklahoma Smart Justice Reform Act.

This measure presumes that the Oklahoma Smart Justice Reform Act will save the State money by making drug possession and certain property crimes misdemeanors instead of felonies. The measure requires the State's Office of Management and Enterprise Services to use either actual data or its best estimate to determine how much money was saved on a yearly basis. The amount that is determined or estimated to have been saved must be deposited into the Fund and distributed to counties in proportion to their population to pay for rehabilitative programs like mental health and substance abuse treatment programs.

The measure does not identify a revenue source that will be used to pay the amount that is determined or estimated to have been saved. Payment into the Fund of this amount would be made from the General Revenue Fund, the primary fund used to pay for state government.

¶ 4 On July 6, 2016, this Court, pursuant to 34 O.S. Supp. 2015, § 8 (H), determined the signed petitions appeared to be numerically sufficient and ordered the Secretary of State to publish the notice required by 34 O.S. Supp. 2015, § 8 (I), informing the public that an objection may be filed.³ The Secretary of State, on July 14, 2016, published the required notices. On July 20, 2016, the Petitioners filed their application to assume original jurisdiction to object to the rewritten ballot titles for Initiative Petition 404, State Question 780 and Initiative Petition 405, State Question 781, pursuant to 34 O.S. Supp. 2015, § 8 (I).

STANDARD OF REVIEW

¶ 5 The ballot title must reflect the character and purpose of the measure and not be deceptive or misleading. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶ 25, 879 P.2d 810. The test is whether it is written so that voters are afforded an opportunity to fairly express their will and whether it apprises voters with substantial accuracy what they are asked to approve. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97 at ¶ 25, 879 P.2d 810.

ARGUMENTS AND ANALYSIS

¶ 6 The Petitioners assert both rewritten ballot titles misrepresent the effect of the measures and are contrary to 34 O.S. Supp. 2015, § 9's prohibition on partiality and argument. Section 9 provides various requirements which must be met before the ballot title may be submitted to a vote of the people.⁴ These requirements include: a ballot title shall use basic words of general usage, shall not contain words with special meaning not commonly known, and shall not reflect partiality in its composition or contain any argument for or against the measure. Title 34 O.S. Supp. 2015, § 9 (B) (4). A person who is dissatisfied with the wording of a ballot title may appeal to this Court by petition and offer a substitute ballot title. 34 O.S. Supp. 2015, § 10. Upon review by this Court, we may correct or amend the ballot title, accept the substitute ballot title, or draft a new ballot title conforming to 34 O.S. Supp. 2015, § 9. Id.

I. Initiative Petition 404

¶ 7 The Petitioners first challenge Initiative Petition 404's rewritten ballot title. They assert the Respondent's version is misleading and fails to adequately explain the effect of the proposition. Section 3 of Initiative Petition 404 amends 63 O.S. Supp. 2012, § 2–402, a section of law concerning various crimes and punishments related to controlled dangerous substances. The section changes the classification of certain crimes from felonies to misdemeanors. The Petitioners argue the rewritten ballot title focuses on only portions of the law which evoke emotionally charged responses and uses other terms of art which are misleading and may not be well understood by the citizenry. Specifically, they allege the Respondent's rewritten ballot title focuses on isolated unrepresentative examples selected to appeal to public emotion and fear, then vaguely states “these sorts of drug possession crimes would be misdemeanors instead of felonies.” These examples include possessing drugs within 1000 feet of a public or private school or public park and possessing drugs in the presence of children under the age of twelve. The Petitioners note that the current law applies to more than just public and private schools and public parks. It applies to “public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas.” 63 O.S. Supp. 2012, § 2–402 (C). Emphasizing one aspect of the law over the others they claim is meant to cause fear. They assert, under current law a college student found with marijuana or Adderall, without a prescription, would also be convicted under the same felony. The Petitioners argue that the complete omission of these far more problematic examples while including two examples focused on drugs and children is misleading....