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

1994 OK 27, 870 P.2d 782, 65 O.B.A.J. 886, 1994 Okla. LEXIS 30, 1994 WL 61028

• Court: Supreme Court of Oklahoma
• Decided: February 24, 1994
• Docket: 82041
• Status: Published

Opinions

ALMA WILSON, Justice:

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.

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, 1993.¹ The Secretary of State made a physical count of the signatures and, on July 30, 1993, certified that the total number of valid signatures of Oklahoma registered voters is 197,798, and the total number of signatures required for an initiative petition is 111,229.² The signatures appearing to be numerically sufficient,³ notice of the filing and time to protest was published on August 1, 1993. Within the time allowed, Dwayne Burrows of Sallisaw, Oklahoma, Larry Kettles of Guthrie, Oklahoma, David Vance of Edmond, Oklahoma, and David Murphy, Gary Simpson, Jeff True and Charles Wooden of Oklahoma City, Oklahoma, (protestants) filed their protest to Initiative Petition No. 358, State Question No. 658 on August 9, 1993.⁴ Pursuant to this Court’s order, protestants filed their brief in support of the protest on October 15,1993; proponents filed their response brief on November 15, 1993; and protestants filed their reply brief on November 29,1993. Additionally, on December 2, 1993, proponents filed an application requesting this Court to disregard the new issues raised in the reply brief and, on December 9, 1993, protestants filed their response to the application.

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, sever-ability 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 signature pages which provide:⁵

This measure would create a State Lottery. It would be operated by the Oklahoma Lottery Authority. The Authority would be run by a board of directors. The Governor would appoint the directors. The Authority would be an independent public body of the state. The Authority would be run with funds from the Lottery. It would not receive tax dollars. Around 50% of lottery money would go for prizes. The Authority would pay its own start-up costs. After that, it would give around 35% of the lottery money to the State. One-half of the State’s share would be used by the Oklahoma Center for the Advancement of Science and Technology. At least 35% of the State’s share would be used for the capital needs of educational entities. The rest of the State’s share would be used for the capital needs of the State. The Authority would select people to sell lottery tickets. The Authority would choose the type of lottery games to be played. The Authority could not permit other forms of gambling. The’ State Lottery would be the only legal lottery. This measure contains many other laws. Those laws would regulate the Lottery and provide criminal penalties.

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.

This Court has jurisdiction to entertain protests to initiative petitions pursuant to Section 8 of Title 34 of the Oklahoma Statutes.⁶ Prior to 1973, protests were filed with the Secretary of the State and reviewed by this Court in original actions seeking extraordinary relief. With strict adherence to the separation of powers doctrine,⁷ judicial review of the contents of a measure proposed by an initiative petition and opinion upon the constitutionality thereof were withheld from the extraordinary relief available. Threadgill v. Cross, 26 Okla. 403, 109 P. 558 (1910).⁸

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.⁹ Subsequent to In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma and under its rule, federal constitutional challenges to the contents of proposed statutes¹⁰ and proposed constitutional amendments¹¹ and state constitutional challenges to the contents of proposed constitutional amendments¹² have been reviewed to prevent costly expenditure of public revenues on needless elections.

The doctrine of separation of powers ¹³ prevents judicial interference with the initiative law-making process with the same force that it prevents legislative restriction upon this court’s inherent powers. In accordance with the notions of separation of powers, we have consistently confined our pre-election review of initiative petitions under 34 O.S.Supp.1993, § 8 to clear or manifest facial constitutional infirmities.¹⁴ Constitutional challenges to the interpretation, implementation or application of an initiative proposal present nothing more than abstract questions and will not be reviewed through this Court’s inherent power to grant relief from costly expenditure of public revenues on needless elections.¹⁵

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.

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.¹⁶ The language of the proposed measure authorizing the Lottery Authority to determine “net revenues” does not clearly contravene Art. IV, § 1 or Art. V, § 55, Okla. Const. Although it is conceivable that the implementation of the proposed measure may result in an unconstitutional usurpation of the legislative power of appropriation, we refrain from further consideration of this argument because implementation cannot be discerned from the face of the proposed measure.

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.¹⁷ Proponents respond that protestants’ have failed to show that an integral part of the proposed measure directly violates the constitution and that if any language is found to be unconstitutional it should be severed under the sever-ability clause.

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 ease, 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.

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.¹⁸ Protestants do not contend that the language providing these essential components directly contravenes the constitution. Instead, they contend that the implementation of various provisions authorizing the method of operation of the Lottery Authority will create constitutional infirmities. As we have already said, this Court will not interpret the contents of an initiative proposal, nor speculate implementation, at this pre-election stage. Further, if adopted and a constitutional infirmity becomes apparent in the implementation of any of the challenged provisions, the measure expressly provides for severability. Hence, we refrain from further consideration of these arguments.

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.

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.

HODGES, C.J., and HARGRAVE, SUMMERS and WATT, JJ., concur. OP ALA and KAUGER, JJ., concur in result. LAVENDER, V.C.J., and SIMMS, J., dissent.

1 . 34 O.S.Supp.1993, §§ 3 and 8.

2 . 34 O.S.Supp.1993, §§ 6.1 and 8.

3 . According to the Secretary of the State Election Board, the State office receiving the highest number of votes at the last general election held on November 3, 1992, was that of Presidential Elector for which the total votes cast were 1,390,359 and eight percent thereof is 111,229. The Oklahoma Constitution, Art. V, § 2, provides that eight percent of the legal voters shall have the right to propose any legislative measure and that the eight percent shall be based upon the total number of votes cast at the last general election for the State office receiving the highest number of votes at such election. We have heretofore accepted the votes cast for the Presidential Elector as the bases for this calculation. In re Initiative Petition No. 315, State Question No. 553, 649 P.2d 545, 552 (Okla.1982).

4 .34 O.S.Supp.1993, § 8. On August 11, 1993, the Oklahoma Christian Coalition, Inc. and Ami Shaffer, an individual registered voter, filed a protest challenging the form and constitutionality of the Initiative Petition and objecting to the count, but the protest and the objection to the count were withdrawn on August 26, 1993, and neither has been revived. Sixteen other registered voters filed notices of intent to protest on August 11, 1993, but submitted no other filings. The protestants herein do not challenge the sufficiency of the signatures.

5 . The ballot title and the gist of the proposition are identical. The protestants do not challenge either the ballot title or the gist of the proposition.

6 . Section 8 was amended in 1973 deleting the provisions for protest to the Secretary of State and adding provisions for protest before this Court. 1973 Okla.Sess.Laws, eh. 78, § 1.

7 . Okla. Const., Art. IV, § 1.

8 . In Threadgill v. Cross, a writ of mandamus was sought ordering the Secretary of State to file an initiative petition proposing a constitutional amendment. Secretary of State Cross had determined that the proposed repeal of the constitutional provisions that prohibited the sale of liquors was contrary to the state's Enabling Act of Congress which required the state of Oklahoma to prohibit the sale of liquors for a period of 21 years in that part of the state formerly Indian Territory. In rejecting the Secretary of State’s defense to the mandamus request, the Threadgill Court reasoned that the court may not restrain the enactment of an unconstitutional law under the fundamental doctrine of separation of powers of our three equal and independent departments of government. The Court found that the 1909 statutes governing the initiative process imposed upon the Secretary of State the ministerial and mandatory duty to file initiative petitions, the writ of mandamus issued. In this vein, the Threadgill Court said:

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 officer 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.

9 . In In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, protests were lodged against two initiative petitions relating to the same subject, utility rates to be charged by the municipal utility. One initiative petition proposed amendment to the city charter and the other proposed an ordinance. This Court held that the initiative petition proposing the ordinance was insufficient as a matter of law and the initiative petition proposing amendment to the charter was sufficient. In so holding, this Court said:

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.

10 . In In re Initiative Petition No. 349, State Question No. 642, 838 P.2d 1 (Okla.1992), we considered a challenge to proposed legislation on abortion as facially violative of federal law.

11 . In In re Initiative Petition No. 341, State Question No. 627, 796 P.2d 267 (Okla.1990), we considered challenges to the face of a proposed constitutional amendment that would establish the Ethics Commission as facially violative of the First Amendment to the Constitution of the United States and the separation of powers provisions of our state constitution.

12 . Many protests to initiative petitions have been decided under the one subject rule, Art. XXIV, § 1, Okla. Const. Oklahomans for Modem Alcoholic Beverage Controls, Inc. v. Shelton, 501 P.2d 1089 (Okla. 1972), was handed-down in October, just before the 1973 amendments to § 8 of Title 34, wherein the need for this Court to consider facial violations of the one subject rule to prevent the chilling effect of multiple subjects on the right of the voters to express their opinions on a single subject was voiced. Opinion concurring in part and dissenting in part by Hodges, J., at page 1095. We adopted those views in In re Initiative Petition No. 314, 625 P.2d 595, 607 (Okla.1981). See also, In re Initiative Petition No. 342, State Question No. 628, 797 P.2d 331 (Okla.1990); In re Initiative Petition No. 344, State Question No. 630, 797 P.2d 326 (Okla.1990). Although we must necessarily review the contents of a proposed measure when considering a challenge under the one subject rule, at issue is the sufficiency of the form of the initiative petition and not the constitutionality of the contents of the proposed measure.

¹³

14 . In re Initiative Petition No. 349, State Question No. 642, 838 P.2d 1 (Okla.1992); In re Initiative Petition No. 348, State Question No. 640, 820 (Okla.1991); In re Initiative Petition No. 347, State Question No. 639, 813 P.2d 1019 (Okla.1991).

15 . In In re Initiative Petition No. 348, State Question No. 640, 820 P.2d 772, 774 (Okla.1991), we refused to consider issues "ensuing from the interpretation or application" of the proposed amendment until same are directly challenged, without considering whether the challenged provisions were integral and non-severable. In that case, we reviewed the contents of the proposed constitutional amendment to require voter approval of new tax statutes which were challenged as facially violative of the one subject rule in Art. XXIV, § 1, Okla. Const, and the Guarantee Clause of the United States Constitution.

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.

16 . Section 16 of the proposed measure, with minimal guidelines, authorizes the Lottery Authority to determine "net revenues” and it authorizes the Authority to pay all start-up costs. However, that section specifies that, after the initial start-up costs or after the first year, a minimum of 35% of gross revenues shall be deposited in the state treasury and approximately 50% of gross revenues shall be used for prizes. On its face, the proposed measure does not delegate fiscal policy making to the Lottery Authority. Further unlike the earlier proposed lottery measure, § 16 specifies the purposes for which the 35% of gross lottery revenues transferred to the state treasury shall be appropriated by the Legislature.

17 . Protestants urge us to glean the private nature of the Lottery Authority from the provision that would exclude the Lottery Authority, its president and employees, from the term "state agency" except when a contrary intention appears specifically in a statute or the Lottery Act and the provisions that would grant to the Lottery Authority the power to close meetings, determine which records are open, create its own budget, adopt regulatory provisions free from the administrative procedure statutes, hire employees free from the statutory control except the ethics statutes, void contracts at will, fix costs and fees to be charged, deposit money in accounts other than in the state treasury, create its own budget, determine its net proceeds and establish its own fiscal year.

18 . The unchallenged Ballot Title and gist of the proposition advise the voters that the proposed measure would create a State Lottery to be operated by the Oklahoma Lottery Authority and that the Authority would be a independent public body run by a board of directors appointed by the Governor. It is conceivable that any Lottery Authority could administer the proposed measure so as to function as a private entity independent of public scrutiny and governmental controls, but such administration is mere speculation at this stage.