In Re Initiative Petition No. 348, State Question No. 640

820 P.2d 772, 1991 WL 217871

Opinions

LAVENDER, Justice.

This is an original action brought pursuant to 34 O.S.1981 § 8 challenging the legality of Initiative Petition 348, State Question 640 (Petition). The Petition purports to amend by the initiative process¹ Article V, § 33 of the Oklahoma Constitution. The amendment would impose severe limitations upon the Legislature’s ability to raise new revenue.

We begin by emphasizing that our inquiry is limited to those challenges fundamental to the validity of the Petition as a whole. We will not attempt to resolve uncertainties ensuing from the interpretation or application of the Petition. Such issues are better reserved for a day when they can be directly challenged. Likewise, we will not deliberate the wisdom of the proposed amendment, as that question will be answered by the voters of Oklahoma, rather than this court.² With those qualifications in mind, we conclude, the Petition survives alleged infirmities and is therefore legally sufficient for submission to the people of Oklahoma.

FACTS

Oklahoma’s Constitution, Article V, § 33 reads:

All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the five last days of the session.

The Petition, if adopted, would require all revenue raising bills* be approved by a majority of the people at the next general election unless such revenue bill was approved by a three-fourths vote of both houses. If approved by three-fourths of both houses, the bill would not be subject to an emergency measure provision and would not go into effect until ninety (90) days after the bill’s approval by the Legislature and appropriate action by the Governor. Such a bill could still be defeated or its effective date delayed by a referendum of the people during the ninety day period.⁴

Multiple protests have been alleged on behalf of two Protestants, Thomas and Brown, however, given the similarity of the arguments, we address them concurrently. Specifically, Protestants assert the Petition violates Article XXIV, § 1 of the Oklahoma constitution in that it embraces more than one general subject; that the Petition is misleading and deceptive and violative of 34 O.S.1981, §§ 3 & 9; that it directly conflicts with other articles of the constitution and threatens the constitutional plan for financing state government. Protestants further argue the Petition contravenes the constitutional guarantee of a republican form of government. Finally, Protestants maintain the Petition is invalid because the power of the initiative is not without limits and this amendment exceeds the power reserved to the people. We address Protestants’ arguments in order to establish the legal sufficiency of this petition; our inquiry begins with a general analysis of the right of the initiative.

ANALYSIS

The people’s right to institute change through the initiative process is a fundamental characteristic of Oklahoma government. Oklahoma’s constitution Article V, § 1 provides:

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).

The right of the initiative is not absolute in that there are both constitutional and statutory limitations,⁵ however, this power, reserved by the people, grants them the constitutional right to amend even these limitations. Whether right or wrong, this reserved power, authorizes the people of the state of Oklahoma to amend⁶ the constitution they created.

In other words, ... it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will... .⁷

Understandably, given this constitutional foundation, we have repeatedly maintained our defense of the initiative process. In Oliver v. Tulsa8 we quoted with approval the following persuasive language from another state court:

The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.... 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 In re Referendum Petition No. 18,⁹ we articulated, “[t]he right to petition for a vote of the people by Initiative and Referendum provided by Art. 5, § 2, of the Constitution of Oklahoma is a sacred right to be carefully preserved.”

In Ruth v. Peshek,¹⁰ we declared:

The people reserved to themselves the power to propose laws and amendments to the Constitution.... This power so reserved to the people should not be crippled, avoided, or denied by technical construction by the courts. It is the duty of the courts to construe and preserve this right as intended by the people in adopting the Constitution, and thereby reserve unto the people this power.

Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern. If the people are to be self-governed, it is essential that they shall have a right to vote upon questions of public interest and register the public will.

Under these constitutional mandates and precedential principles of law, we consider the proposed Petition.

A. ONE SUBJECT RULE/MISLEADING EFFECT

Article XXIV, § 1 of the Oklahoma Constitution provides:

No proposal for the amendment or alteration of the Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of the Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.

In In re Initiative Petition No. 314¹¹ we held this section was applicable to initiative petitions.

Protestant Thomas concedes the petition on its face does not encompass more than one subject, that subject being taxation. Rather, Protestant charges the petition violates the one subject rule because it would affect more than one subject. Further, Protestant contends the Petition is misleading in that the voter is not given notice of the affected articles. Protestant Brown makes in essence the same argument.

While appreciating Protestant Thomas’s approach in conceding what is apparent on its face, we nevertheless disagree with both Protestants' contention that an amendment, having an affect on other articles of the constitution, violates the one subject rule or is misleading. Moreover, assuming for the sake of argument such articles would be so affected, those issues are not yet ripe for review and therefore have no bearing on the sufficiency of this Petition.

In In re Initiative Petition No. 342,¹² we held:

The purpose of the one general subject criteria is to prevent deceit or the presentation of a misleading proposal and to prevent logrolling, the combining of unrelated proposals. In In re Initiative Petition No. 314, this court adopted the following test: If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and ’‘f, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition.

Protestants cite us two cases in which this court has recently struck down the proposed initiatives based on this single subject test, purporting that those cases are factually controlling. However, these cases offer no support for Protestants’ contention. Each of those proposed initiatives clearly contained more than one subject as evidenced by the following quoted language from In re Initiative Petition No. 34413 There we found the Petition contained:

numerous subjects from the method of the election of the LT. Governor, to changing the term of board and commission members including non-attorney members of the Judicial Nominating Commission, to giving the Governor the sole authority ‘to grant reprieves, commutations, and pardons’, to changing the Executive Branch to a cabinet form of government, to repealing the constitutional authority for certain boards. Some of the sections in the amendment are, at best, tenuously related to other sections. The sections are not so intertwined as to require that they be adopted at the same time in order to preserve the integrity of each section.... A voter supporting any one of these provisions could not reasonably be expected to support the principle of the others.

Further, in In re Initiative Petition No. 342.14 we determined there were:

numerous subjects covered by the Petition ranging from financial institutions holding stock in another financial institution to the power of eminent domain of foreign corporations to the fellow-servant doctrine rule. The only connection that these topics have to each other is that they all tangentially relate to the general subject of corporations. Otherwise, they are unrelated.

These cases are unlike the present proposed amendment. The only subject matter addressed in the petition is a procedural requirement allowing for direct participation by the people in the enactment of revenue measures. While the amendment, if adopted, may indeed affect other articles of the constitution, such as the emergency clause, the balanced budget act, the Governor’s veto, etc., that is insufficient reason for this court today to deny the people of Oklahoma the right to vote on this Petition, though indeed, the Petition’s effect may result in subsequent challenges.

Again, the dispositive test is that the proposed amendment itself not contain more than one subject, so as to enable the voter to make a choice and not be misled, or forced to choose between two different proposals presented in one amendment. While that choice may result in repealing other constitutional guarantees, that is a consequence of the voting process, rather than any fault of the proposed amendment. Moreover, were we to adopt Protestants’ test, the occasion may never arise in which an initiative could satisfy one that is so narrowly restrictive since, by their very nature, articles of the constitution interrelate. In Cowart v. Piper Aircraft Corp.,¹⁵ we held the constitution must be read in its entirety, and all articles construed together.

Our analysis persuades us the proposed amendment does not violate the single subject requirement. The Petition contains only one subject, a procedural requirement for raising revenue, albeit, an inordinately restrictive one. Likewise, we do not find the Petition misleading for failing to state what effect it will have on the entire constitutional scheme if the Petition is adopted.¹⁶ Finally, Protestants’ argument lacks authoritative support and does not substantiate invalidating the Petition.

B. DESTROYS STATE FINANCING/EXCEEDS RESERVED POWER

Protestants assert, however, the amendment not only impacts or conflicts with numerous articles of the constitution, but destroys the entire design for financing state government as organized in the Oklahoma Constitution. For example, Protestants assert this amendment would destroy the Legislature’s ability to balance the budget as provided for by the constitutional amendment of 1941. Furthermore, Protestants allege the Petition exceeds the power reserved under the initiative process as set forth in the Constitution.

Our analysis of the initiative process rebuts these challenges in that the people have the sovereign right under the reserved power to institute constitutional tax reform by way of the initiative process. Protestants contend, however, that Article 5, §§ 7 & 36 limits the people’s right of initiative. Section 7 provides:

The reservation of- the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the State and the Constitution of the United States.

Section 36 reads:

The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.

Protestants’ argument is without merit as these specific legislative grants of power will always be subject to the reserved power of the people under Article V, § 1.

While this Petition, if adopted, may prevail over other sections of the constitution on the same subject matter,¹⁷ this in and of itself is not fatal. In In re Initiative Petition No. 281,18 we held, “that the real purpose of an initiative petition is to secure a vote of the people upon a proposed law or constitutional amendment. The repeal of any conflicting provisions of law in effect at the time the proposed law is to become effective is merely incidental to the purpose of such a petition.”

Finally, it is mere conjecture as to whether this Petition will destroy the state financing scheme. While it is true, the Constitution grants the Legislature the right to raise additional revenues so as to balance the budget, if such revenues are not available, the Legislature could curtail or shut down government services in order to maintain the constitutionally required balanced budget. Moreover, though these things may occur, we cannot invalidate this Petition on such speculation. Thus, this challenge is insupportable and again, Protestants have failed to provide legal justification for declaring the Petition invalid.

C. SUFFICIENCY OF GIST AND BALLOT TITLE

Protestants assert the Petition is invalid because it violates 34 O.S.Supp.1990, §§ 3 & 9 in that neither the gist nor the ballot title explain the effect of the amendment. However, we are not persuaded by Protestants’ argument.

Section 3 states, “a simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet....” The gist on this Petition reads:

This measure will amend the Constitution to require any revenue raising bill passed by the legislature and sent to the Governor for action shall not become effective until it has been approved by a majority vote of the public, it allows a revenue raising measure to become effective without a vote by the public if it is approved by ¾ vote of each house of the legislature and acted on by the Governor but allows time for referendum by prohibiting enacting of emergency clause.

The pertinent part of Section 9 states, “The ballot title shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition....” The ballot title prepared by the Attorney General reads as follows:

This measure amends the State Constitution. It adds new provisions to Section 33 of Article 5. These would change the method by which state government makes laws that raise revenue. The measure requires that a bill to raise revenue be voted upon by the people at the next general election. A bill would not be effective until it was approved by a majority of the voters. The measure also provides a way that a revenue bill could become law without a vote of the people. A bill would have to be approved by a ¾ vote of each house of the legislature and go to the Governor for proper action. A revenue bill approved by a ¾ vote of each house of the legislature would not become effective until ninety days after the approval date. Such a bill would not be subject to the emergency measure provision.

Shall the proposed Constitutional amendment be approved?

( ) Yes, for the Constitutional Amendment?

( ) No, against the Constitutional Amendment?

Protestants’ cite us to In re Initiative Petition No. 344,19 as providing the standard for testing whether the gist and ballot title are legally correct. In that case, we pronounced, that they “must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition.” This case is factually distinguishable, however, in that the petition contained more than one subject and was therefore facially void.

The proposed Petition though does not contain more than one subject and satisfies the enumerated test. The gist and ballot title sufficiently appraises the voters what the measure is intended to do, i.e., “change the method by which state government makes laws that raise revenue.” We therefore approve the ballot title presented by the Attorney General of this state²⁰ and find it sufficient for submission to the people.

D. GUARANTEE CLAUSE

Protestants argue the proposed amendment violates the United States Constitution, Article IV, § 4 holding “[t]he United States shall guarantee to every State in this Union a Republican form of Government_”²¹ They assert the pro posed amendment violates our republican form of government (lawmaking by elected representatives) because it destroys the Legislature’s decision making power in the area of taxation.

In keeping with our directive in In re Supreme Court Adjudication of Initiative Petitions,²² we will review the constitutionality of questions presented by the people of this state not only as to procedure and form, but also subject matter. Accordingly, we consider whether the Petition violates Article IV, § 4 of the federal constitution.

In Kadderly v. City of Portland,23 the Oregon Supreme Court explained that the purpose of Article IV, § 4 of the U.S. constitution was:

to protect the people of the several states against aristocratic and monarchial invasions, and against insurrections and domestic violence, and to prevent them from abolishing a republic form of government. But it does not forbid them from amending or changing their Constitution in any way they may see fit, so long as none of these results is accomplished.

Our own Bill of Rights, Article 2, § 1 of the Oklahoma constitution reads:

All political power is inherent in the people; and government is instituted for their protection, security, and benefit and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States.

(emphasis added).

Article 24, § 3 states that though the Legislature may also present proposals for amendments, this shall not impair the people’s right to amend the Constitution by initiative petition.

As evidenced by these various constitutional articles, and more specifically, Article V, § 1, which reserves the power for the initiative process, we conclude the people have the right under this reserved power to amend the constitution, provided, it remains a republican form of government as guaranteed by the United States Constitution. Thus the dispositive question presented is whether the Petition would so alter the existing system of government that it would constitute a loss of representative government. We have determined that while the Petition undoubtedly restricts, it does not abolish government by representation and thus does not breach the federal guaranty of Article IV, § 4.

What the court in Kadderly had to say concerning the Oregon petition is instructive in the case at bar:

The initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of the government, or substituted another in its place. The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, and may, in effect, veto or defeat bills passed and approved by the Legislature and the Governor; but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed.²⁴

We acknowledge Petitioner’s contention that the continued existence of any government is dependent on the right to tax. “[T]he power of taxation for revenue purposes is probably the most vital and essen tial attribute of the government. Without such power it cannot function.”²⁵ Under our system of government, the Legislature has been charged with this responsibility. It is this power by which the Legislature balances the budget and manages the finances of state government. It is this power by which the stability of state government is maintained.

Undeniably, however, a basic right of the people is the liberty to direct how much or how little government may spend. Indeed, this Petition represents the quintessential subject for the initiative process in that the issue of taxation has from the very beginning of this country been a topic of paramount concern.²⁶

After an extensive analysis, we conclude, the Petition, if adopted, would not result in the destruction of our representative form of government. Certainly, the Petition will impact significantly the governmental framework of this state and perhaps, not without difficulty and frustration given limited resources. However, the question presented is not whether this is a “good” or “bad” amendment, rather, if it is legal; we answer affirmatively.

CONCLUSION

Given the reasoning herein expressed, we find Initiative Petition No. 348 is declared LEGALLY SUFFICIENT. The Ballot Title presented by the Attorney General is thereby APPROVED.

HODGES, V.C.J., and HARGRAVE, ALMA WILSON and SUMMERS, JJ., concur. OPALA, C.J., and SIMMS and KAUGER, JJ., concur in result. DOOLIN, J., dissents.

Footnotes

1

. “Initiative is the power reserved to the people by the constitution to propose bills and laws and to enact or reject them at the polls independent of legislative assembly." Wyatt v. Clark, 299 P.2d 799, 801-01 (Okla.1956).

2

. In re Initiative Petition No. 314, 625 P.2d 595, 608 (Okla.1981) we opined:

Courts do not concern themselves with the expediency or wisdom of laws, but only with their legality. The social and economic policies affecting the general welfare of the people are committed exclusively to the legislative branch of government, and by our fundamental concept of government, the judiciary is not permitted to interfere therewith except in so far as the legislation may transgress fundamental legal restrictions. The chief executive may recommend, and the Legislature may enact, or the people exercising their reserved power, may initiate and approve at the polls, any legislation they may deem advisable.

3

. 'Revenue Bills’ are those that levy taxes in the strict sense of the word and are not bills for other purposes which may incidentally create revenue. Pure Oil Co. v. Oklahoma Tax Commission, 179 Okla. 479, 482, 66 P.2d 1097, 1100 (1936).

4

. The amendment if adopted would revise section 33 to read as follows:

A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills.

B. No revenue bill shall be passed during the five last days of the session.

C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise except as otherwise provided in subsection D of this section.

D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (¼) of the membership of the House of Representatives and three-fourths (³/t) of the membership of the Senate and is submitted to the Governor for appropriate action. Any such revenue bill shall not be subject to the emergency measure provisions authorized in Section 58 of this Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature and acted on by the Governor.

5

. In re Initiative Petition No. 344, 797 P.2d 326, 330 (1990).

6

. Black’s Law Dictionary (abr. 5th ed. 1983) defines the word amend as, ”[t]o change for the better by removing defects or faults. To change, correct, revise, improve.”

7

. In re Initiative Petition No. 314, 625 P.2d at 608.

8

. 654 P.2d 607, 613 (Okla.1982) (emphasis added).

9

. 417 P.2d 295, 297 (Okla.1966) (emphasis added).

10

. 153 Okla. 147, 150, 5 P.2d 108, 111 (1931) (emphasis added).

11

. 625 P.2d at 600.

12

. 797 P.2d 331, 332 (Okla.1990) (citations omitted).

13

.797 P.2d at 329.

14

. 797 P.2d at 333 (emphasis added).

15

. 665 P.2d 315 (Okla.1983).

16

.The ballot title presented by the Attorney General and herein approved by this court, does include information to the effect that this amendment changes the method by which state government raises revenue.

17

. Sharpe v. State ex rel. Oklahoma Bar Association, 448 P.2d 301, 306 (Okla.1968), cert. denied, 394 U.S. 904 (1969).

18

. 434 P.2d 941, 946 (Okla.1967).

19

. 797 P.2d at 330.

20

. See Covey v. Williamson, 265 P.2d 457 (Okla.1953).

21

. The Guaranty Clause has generated considerable discussion over the years. Prior to 1962, the United States Supreme Court held that the clause was judicially unenforceable because it presented a political question. Then in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), the Supreme Court issued factors for determining when a question is political. Prominent among those factors was whether there was a "textually demonstrable constitutional commitment of the issue to a coordinate political department_” Though the Court did not find the Guaranty Clause justiciable in that case, in Reynolds v. Sims, 377 U.S. 533, 582, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964) the Court indicated this was not necessarily always true when it opined, "As we stated in Baker v. Carr, some questions raised under the Guaranty Clause are nonjusticiable, where "political in nature and where there is a clear absence of judicially manageable standards." (emphasis added). But see City of Rome v. United States, 446 U.S. 156, 182 n. 17, 100 S.Ct. 1548, 1564 n. 17, 64 L.Ed.2d 119 (1980) where the Court citing Baker noted the guaranty clause was nonjusticiable. In Gregory et al, Judges v. Ashcroft, Governor of Missouri, — U.S. -, 111 S.Ct. 2395, 2402, 115 L.Ed.2d 410 (1991), the Court considered whether a state constitutional provision requiring mandatory retirement age for most state judges violated the federal Age Discrimination in Employment Act of 1967. After citing a number of cases in which the Court had relaxed its scrutiny given the issues rested firmly on a State’s constitutional prerogative, the Court concluded:

These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It Is an authority that lies at ‘the heart of representative government.’ It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States ‘guarantee[s] to every State In this Union a Republican Form of Government.’ (citations omitted).

For a sister state court's analysis concluding the Guaranty Clause is justiciable see Vansickle v. Shanahan, 212 Kan. 426, 437-38, 511 P.2d 223, 234 (1973).

[T]he contention all cases arising under the guaranty clause are nonjusticiable has no historical precedent. Instead, as in other cases wherein the “political” controversy bar to judicial enforcement has been raised, we must look to the facts and circumstances surrounding the litigation, as well as the theory upon which the constitutional challenge is premised, to ascertain whether the issue may be resolved by the judicial process.

For further discussion on the guaranty clause see Merritt, The Guarantee Clause and State Autonomy: Federalism for A Third Century, 88 Colum.Rev., 1, 50-55 (1988); Linde, When Is Initiative Lawmaking Not "Republican Government”?, 17 Hastings Constitutional Law Quarterly, 159, 172 (1989).

22

.534 P.2d 3 (Okla.1975).

23

. 44 Or. 118, 144, 74 P. 710, 719 (1903) (emphasis added).

24

. Id., 44 Or. at 145-46, 74 P. at 720.

25

. Watchtower Bible & Tract Soc. v. Los Angeles County, 30 Cal.2d 426, 429, 182 P.2d 178, 180 (1947) cert. denied, 332 U.S. 811, 68 S.Ct. 112, 92 L.Ed. 389 (1947).

26

. Taxation without representation was a major source of contention and ultimately contributed to our break from England.