In Re Initiative Petition No. 364

1996 OK 129, 930 P.2d 186, 67 O.B.A.J. 3874, 1996 Okla. LEXIS 144, 1996 WL 709162

• Court: Supreme Court of Oklahoma
• Decided: December 10, 1996
• Docket: 86828
• Status: Published

Opinions

SIMMS, Justice:

This is an original action brought pursuant to 34 O.S.Supp.1992 § 8 by protestant, James C. Thomas, to challenge the legal sufficiency of Initiative Petition No. 364, State Question No. 673, and an appeal by proponent, Joe R. Windes, as chairman of OHahoma Term Limits, from the ballot title prepared by the Attorney General, pursuant to 34 O.S. § 10. We conclude that the measure is facially violative of the constitutions of OHahoma and the United States and may not be placed on the ballot for submission to the people.

I

OKLAHOMA AND THE TERM LIMITS BATTLE

In 1994, OHahoma became the first state to enact term limits for its Congressional representatives. This was achieved through an amendment to the OHahoma Constitution by way of an initiative election. See In re Initiative Petition No. 360, 879 P.2d 810 (Okla.1994). In that election, the state question garnered 67 per cent of the vote. Twenty-one other states had adopted term limit measures at the time the United States Supreme Court held them unconstitutional on May 22, 1995, in United States Term Limits v. Thornton, — U.S. -, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). The Court suggested that such a fundamental change in the federal constitutional framework “must come not by legislation adopted either by Congress or by an individual state, but rather — as have other important changes in the electoral process — through the amendment procedures set forth in Article V.” Id. at -, 115 S.Ct. at 1871 (footnote omitted).

Congressional term limits supporters have begun a campaign to get two-thirds of the states to apply to Congress to call a federal constitutional convention on the question. One effort in that campaign is Initiative Petition No. 364.

II

INITIATIVE PETITION NO. 364 and PROTESTANT’S LEGAL CHALLENGE

This initiative measure declares that the people of Oklahoma desire that the Oklahoma Legislature apply to Congress for the calling of a Federal Constitutional Convention leading to the adoption of the specific proposed amendment which is set forth in full, and the voters should be kept informed of their legislators’ efforts in this regard.¹ The proposed application to Congress on behalf of the People and the Legislature pursuant to their power under Article V to call a convention is set forth. The measure then states the public policy of Oklahoma regarding term limits, namely “that the term of members of the United States Congress should be limited to three terms for members of the House of Representatives and two terms for members of the Senate, and the United States Constitution should be amended to so provide.”² It then instructs “each member of the Oklahoma Legislative to use all his or her delegated powers to make application under article V of the United States Constitution to the United States Congress calling for an article V convention” to propose the federal term limits amendment it specifies.³ The measure requires that the clause “FAILED TO COMPLY WITH CONSTITUTIONAL INSTRUCTION ON TERM LIMITS” be printed next to the name of any member of the State Legislature appearing on any ballot following a legislative term in which the legislator failed to support the calling of a constitutional convention or failed to support the specified term limit amendment.⁴ The Secretary of the State Election Board is charged with the duty to determine whether the ballot notation shall appear on any ballot.⁵ The provisions of the measure are severable.⁶

Protestant urges that the initiative measure is violative of the constitutions of the United States and the State of Oklahoma. His major argument regarding state constitutional grounds is that the initiative violates Art. 5, section 1 as it is not a valid exercise of the people’s reserved power because: (1) it is neither a “law” nor an amendment to the state constitution, and (2) it seeks ultimately to amend the Constitution of the United States by mandating and coercing members of the Oklahoma Legislature to vote in favor of a federal constitutional convention. He also asserts that the proposal violates the multiple subject prohibition of Art. 24 sec. 1. Protestant contends that the initiative violates the Constitution of the United States in several ways: (1) it proposes to amend the Constitution by a process which does not conform to Article V, and (2) it denies Oklahoma State Legislators their right to free speech by instructing them how to vote, and (3) it denies equal protection of the laws to incumbent Legislators who will be denied equal access to impartial ballots by reason of their political expression.

We conclude that the initiative measure is constitutionally invalid and cannot be submitted to the people. We find protestant’s arguments regarding issues arising under Article V of the Constitution of the United States and Art. 5, see. 1 of the Oklahoma Constitution are persuasive and determinative of the challenge. The measure is facially violative of both provisions and must be stricken in its entirety. Accordingly, we limit our discussion to those contentions.

Ill

ISSUES ARISING UNDER ARTICLE V OF THE CONSTITUTION OF THE UNITED STATES

Article V of the federal constitution provides the process by which that document may be amended. It sets forth alternative methods of proposing constitutional amendments, by vote of Congress or on application of two-thirds of state Legislatures calling for a constitutional convention. It states:

“The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

To date, all the amendments have been proposed by Congress and no effort to call a constitutional convention has been successful.

Protestant contends that this proposal would allow the people to do indirectly what they cannot do directly — propose amendments to the Constitution of the United States. We agree. To the extent that the initiative applies for a constitutional convention or requires the Legislature to do so, it is facially violative of Article V. The law is plain that the application for a convention must come from the Legislature acting freely without restriction or limitation, not from the people through exercise of their initiative power. The legislative power in the amendment process of Article V includes only that power which has been delegated to the representative bodies of the several states, it does not include the reserved legislative power of the people.

In Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920), the United States Supreme Court held that a provision in the Ohio Constitution which would have extended the referendum to the action of the General Assembly ratifying the proposed prohibition amendment to the Constitution of the United States conflicts with Article V. Answering the question, ‘What did the framers of the Constitution mean in requiring ratification by ‘legislatures’?”, the Court determined that under Article V “[b]oth methods of ratification by Legislatures or conventions call for action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people.” Id. at 226-27, 40 S.Ct. at 497. See also Hawke v. Smith, No. 2, 253 U.S. 231, 40 S.Ct. 498, 64 L.Ed. 877 (1920), concerning the same question but involving the Nineteenth Amendment extending the right of suffrage to women.

The Oklahoma Supreme Court had almost immediate occasion to follow the authority of Hawke in State, ex rel. Gill v. Morris, 79 Okl. 89, 191 P. 364 (1920) where it refused to allow the prohibition amendment to be submitted to a vote of the people after it had been ratified by the Oklahoma Legislature. The Court held that the referendum provision of the State Constitution could not be applied in the ratification process of an amendment to the United States Constitution without violating Article V of that document. Our Court upheld the position of respondent in that action, that Article V excluded the people of the several states from voting directly on amendments to the Constitution and gave that right only to the “Legislature”, which word was found to refer to a representative legislative body and did not refer to or comprehend the Legislative authority of a state.

The people may not place limitations on the deliberative process of the Legislature. In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922) the United States Supreme Court turned away a challenge to the validity of the ratification of the Nineteenth Amendment on the ground that Article V prohibited the limitations placed on Legislatures by their state constitutions in an effort to impair their power to ratify the Amendment. Striking the limitations, the Court stated:

“[T]he function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.” At 137, 42 S.Ct. at 217-218.

Recent similar attempts at directing state legislatures to call a federal constitutional convention have been held to violate Article V. Amer. Fed. of Labor-Congress v. March Fong Eu, 36 Cal.3d 687, 206 Cal.Rptr. 89, 686 P.2d 609 (1984), and State of Montana ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984), addressed the issue in the context of initiatives which proposed balanced budget amendments. Both decisions held that “a state may not, by initiative or otherwise, compel its legislators to apply for a constitutional convention, or to refrain from such action.” Eu, 206 Cal.Rptr. at 102, 686 P.2d at 622; Waltermire, 691 P.2d at 831. Legislators must be free to deliberate and vote their own considered judgment, being responsible to their constituents through the electoral process. “A rubber stamp legislature could not fulfill its function under Article V of the Constitution.” Eu, 206 Cal.Rptr. at 102, 686 P.2d at 622. No court has reached the conclusion that the people of a state may compel their legislators to call for a federal constitutional convention and direct them to vote for a specified amendment.

Proponents argue that the challenged initiative measure merely requests the Oklahoma Legislators to use their lawful delegated power toward a lawful end in following Article V amendment procedure. They assert that nothing in the proposal could “actually force” a legislator to make the convention call and they contend that to sustain protestant’s position is to deny citizens their most basic rights of free political expression and communication with their elected representatives.

They rely on Kimble v. Swackhamer, 439 U.S. 1385, 99 S.Ct. 51, 58 L.Ed.2d 225 (1978), for support of their argued right to “communicate” freely with their legislators by way of initiative referendum. That case is inappo-site, however. There the Legislature of the State of Nevada submitted a nonbinding advisory question to the voters of Nevada to obtain their views regarding the proposed equal rights amendment. The measure was challenged as violative of Article V but the Nevada Supreme Court in Kimble v. Swackhamer, 94 Nev. 600, 584 P.2d 161 (1978), found that the question did not violate Art. V. because it was purely advisory; the Legislature was able to vote for or against ratification or refrain from voting at all, without regard to the advisory vote. The Supreme Court of Nevada distinguished Hawke and Leser because this purely advisory question was not a limitation on legislative power.

Still challenging only the issue of conflict with Article V, the protestants sought a stay from the United States Supreme Court. Justice Rehnquist, sitting as Circuit Judge, refused all requested interim relief. He did not believe a federal question was presented and found protestant’s reliance on Hawke and Leser misplaced. He observed that he saw no federal constitutional “obstacle” to the Nevada Legislature submitting a nonbinding advisory referendum to the people which provided by its terms that “the result of voting on this question does not place any legal requirement on the legislature or any of its members.” The matter was dismissed for want of a federal question at 439 U.S. 1041, 99 S.Ct. 713, 58 L.Ed.2d 700 (1978).

Proponents of today’s challenged measure argue that the Oklahoma Legislature would still have the power to disregard its direction concerning the convention call. That assertion is not correct.

This measure, if adopted, would be neither nonbinding nor purely advisory in its federal aspects. Its very words distinguish it from the measure at issue in Kimble. The initiative states “[t]he People ... instruct each member of the Oklahoma Legislature ... to make the specific application under Article V[to] Congress calling for an Article V Convention for the purpose of proposing the following Amendment to the United States Constitution.” This is an express mandate from the people to the Legislature to take a specific action. Also, if a Legislator failed to follow the directive, his or her failure would be noted on the ballot. Under these constraints, the application made by the Legislature would violate Article V as interpreted in Hawke and Leser. Legislative deliberation cannot exist where the outcome is a predetermined specific action.

Our conclusion that these provisions of the measure which apply for a constitutional'eon-vention or seek to compel the Legislature to do so are facially violative of Article V of the United States Constitution, necessarily raises questions of severability and the validity of the remaining provisions under State constitutional challenges.

IV

ISSUES ARISING UNDER THE OKLAHOMA CONSTITUTION, ART. 5, § 1

Protestant contends that this proposed measure is beyond the power of the initiative granted the people in the Oklahoma constitution. We agree.

Article 5, § 1 of the Oklahoma Constitution reserves to the people the legislative power of the initiative and the referendum. It 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.”

The initiative process was designed to propose laws and amendments to our State Constitution and the power of the people may not be extended past those limits. The initiative measure does not propose a law. While it purports to be an amendment to the Constitution it is merely a nonbinding legislative resolution. The people have no reserved authority to propose nonbinding resolutions by the initiative process. Our constitution is not unique in this regard and we are not alone in this view.

In State ex rel. Harper v. Waltermire, supra, the people of that state proposed, through the initiative process, to amend the Montana Constitution to direct the 1985 legislature to adopt a resolution requesting Congress to call a constitutional convention for the purpose of adopting a balanced budget amendment. The initiative also provided that if the resolution was not adopted within 90 days after the voters passed the initiative, the Legislature would be required to remain in session without compensation until the resolution was adopted. Finding that the initiative process in the Montana Constitution was “designed to enact laws ”, the Montana Supreme Court held that the initiative power does not include the power to enact legislative resolutions. The Court observed that while the document had the form and label of a constitutional amendment, the “subject matter reveals its true nature. It is a directive to the Legislature to take a specific action: to adopt a- resolution.” The Court pointed out that just labeling a document a constitutional amendment does not make it one and invalidated the citizens’ attempt to create a legislative resolution by direct vote of the people. The Court stated: “A constitutional amendment facade does not enlarge the initiative power granted the people by the Montana Constitution to include the power of legislative resolution. The electorate cannot circumvent their Constitution by indirectly doing that which cannot be done directly.”

In State of Nebraska ex rel. Brant v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984), the Supreme Court of Nebraska rejected a proposed initiative petition seeking to express the views of the populace on a nuclear freeze and forwarding that statement of position to those in power in the United States and the Soviet Union, finding it was merely a nonbinding expression of public opinion which was not a proper subject for the initiative. Nebraska’s Constitution, like Oklahoma’s, gives the people the power to enact “laws”. The Beermann court reviewed with approval a discussion by the Supreme Judicial Court of Massachusetts in Opinion of the Justices Relative to the Eighteenth Amendment, 262 Mass. 603, 160 N.E. 439 (1928) considering a similar question where that court was asked whether a “proposed law” introduced by an initiative petition was really a “law” within the meaning of the initiative provisions of the constitution. Holding it was not a law, but only a nonbinding expression of public opinion, the Massachusetts court set forth the following which is relevant to our situation:

“Without undertaking to frame a definition of ‘law⁵ as used in this amendment sufficiently accurate and comprehensive to meet all the conditions of the future, reference may be made to two definitions given in other jurisdictions in discussing the force and effect of statutes. In American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 512 (53 L.Ed. 826, 16 Ann. Cas. 1047), it was said by Mr. Justice Holmes:

‘Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.’

In In re Opinion of the Justices, 66 N.H. 629, 632, 33 A. 1076, 1078, (1891) appears this pertinent discussion:

‘Law⁵ is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. * * *

The word ‘law¹ imports a general rule of conduct with appropriate means for its enforcement declared by some authority possessing sovereign power over the subject; it implies command and not entreaty; it is something different in kind from an ineffectual expression on opinion possessing no sanction to compel observance of the views announced. The text of the proposed law accompanying this initiative petition does not prescribe a general rule of conduct. It merely invites, a declaration of opinion by voters on a subject over which the people of the commonwealth possess no part of the sovereign power. Amendment of the Constitution of the United States and repeal of amendments thereof constitute federal functions derived in every particular entirely from the Constitution of the United States. That instrument transcends all provisions sought to be enacted by the people or by the legislative authority of any state. The voters of the several states are excluded by the terms of article 5 of the Constitution of the United States from participation in the process of its amendment. By that article all power over the subject is vested exclusively in the Legislatures of the several states. Hawke v. Smith (No. 1) 253 U.S. 221, 227, 40 S.Ct. 495, 497, 64 L.Ed. 871, 10 A.L.R. 1504; Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 217-18, 66 L.Ed. 505. The result of the vote as proposed in this initiative petition would be lacking in any effective force. The proposed law is wanting in features essential to constitute its provisions a law within any permissible conception of the meaning of that word. Superficial appearances cannot clothe with the attributes of law something in substance vain and inoperative. The mandate to the secretary of the commonwealth in section 2 to tabulate the returns of the votes and to ‘transmit copies * * * to each Senator and Representative in Congress from this commonwealth’ is subsidiary and incidental to the main purpose of the proposed law; it relates to a matter which standing alone possesses no legal force; it cannot convert into a law something in itself ineffectual.” Opinion of the Justices Relative to the Eighteenth Amendment, 262 Mass. 603, 160 N.E. 439, 440 (1928).

In Paisner, et al. v. Attorney General, et al., 390 Mass. 593, 458 N.E.2d 734 (1983), the Supreme Judicial Court of Massachusetts, relying on Opinion of the Justices, supra, held that an initiative which would be no more than a nonbinding expression of opinion is not a law and is not an appropriate subject for the popular initiative.

In Amer. Fed. of Labor-Congress v. March Fong Eu, supra, an initiative was held to be invalid as a whole because it failed to adopt a “statute” and thus did not fall within the reserved initiative power set out in the California Constitution. The proposed initiative mandated the California Legislature to apply to Congress for a constitutional convention for the purpose of adopting a balanced budget amendment. The California Supreme Court observed that the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body. Those powers are limited, under their State constitution, to the adoption or rejection of “statutes”.

Recognizing that the right of initiative is precious to the people and is one which the courts are zealous to protect and preserve, our cases have liberally construed the constitutionally reserved power of the people to enact “laws” through the initiative process. Oliver v. City of Tulsa, 654 P.2d 607 (Okl.1982). But even the most liberal interpretation will not include mere resolutions or expressions of popular opinion. Laws are the creation of, and subject to, formal statutory procedures and constraints. They must be introduced, passed and enacted according to our existing laws and they must be enforceable. A resolution is just a collective expression of opinion and desire. Explaining that difference in Hawks v. Bland, 156 Okl. 48, 9 P.2d 720 (1932), the Court noted that a bill and a resolution of the legislature “are entirely different in their creation, nature and purpose ... A resolution is not a law but merely the form in which the legislative body expresses an opinion ... [it] is ordinarily passed without the forms and delays which are generally required by constitutions ... prerequisites to the enactment of valid laws.” Id. 9 P.2d at 721. In Eu, the California Supreme Court observed that “a resolution, as distinct from a statute, is essentially an enactment which only declares a public purpose and does not establish means to accomplish that purpose.” Id. 206 Cal.Rptr. at 106 n. 23, 686 P.2d at 626 n. 23.

If enacted, the initiative could not be incorporated into our constitution as it is not law; it is not binding, it is incapable of being carried into effect, and it is incapable of being enforced.

There are two additional issues regarding the measure’s invalidity on state constitutional grounds. First, the subject matter of the initiative is such that, at best, the initiative would create a transient amendment for a specialized purpose: mandating the legislature to apply to Congress for a constitutional convention for the adoption of the proposed term limits amendment. A temporary initiative measure is not a “part of the permanent fundamental law of a state” and should not be submitted under the guise of a constitutional amendment. State ex rel. Harper v. Waltermire, 213 Mont. at 428-29, 691 P.2d at 828.

Four years ago, this Court held that the people’s legislative power as defined in article 5, section 1, of the Oklahoma Constitution does not include the power to use the initiative process to attempt to change federal constitutional law. In re Petition No. 319, State Question No. 642, 838 P.2d 1 (Okla.1992).

Initiative Petition No. 349 proposed to amend Oklahoma’s Constitution to ban most abortions. The measure was intended as a means of setting up a test case to see if the United States Supreme Court would overturn its abortion rights decisions. After noting that “[t]he goal clearly implicit in [the] ‘test case’ strategy is a change in federal constitutional law,” this Court held that the “initiative process guaranteed to our citizens was never intended to be a vehicle for amending the United States Constitution— nor can it serve that function in our system of government.” At 11.

The present initiative measure explicitly states the “desire that this Oklahoma constitutional amendment leads to the adoption of the United States Constitutional Amendment set forth in this amendment.” That desire is to be fulfilled by amending the Oklahoma Constitution in an attempt to force Oklahoma legislators to apply to Congress for a federal constitutional convention and the ratification of a specific congressional term limits amendment. Like the abortion initiative, this initiative measure is designed to trigger a process for changing federal constitutional law.

Proponents argue that this initiative measure is distinguishable from the abortion initiative because there is no United States Supreme Court ease “diametrically opposed” to it. Thus, they argue, the holding concerning the abortion initiative is limited to “test case” circumstances. Proponents’ reading of that case is much too narrow. The holding applies to any attempt to use Oklahoma’s initiative process to amend the United States Constitution and the initiative provisions are therefore invalid under article 5, sec. 1 of the Oklahoma Constitution to the extent they also attempt to effect an amendment to the United States Constitution.

It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. In re Initiative Petition on Proposed, Charter, 89 Okla. 184, 214 P. 186 (1923). “While 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, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional.” 214 P. at 188.

In Associated Industries of Oklahoma v. Oklahoma Tax Commission, 176 Okla. 120, 55 P.2d 79, (1936), the Court explained that the limitations on the power of the people to amend their constitution must be carefully guarded and enforced. The Court stated:

“It must be remembered that the people solemnly adopted a Constitution containing certain restrictions not only against its delegated officers and its established departments but also upon the people themselves, to the end that the Constitution should be perpetually maintained and upheld. Subject to the limitations imposed by the Federal Constitution, the reserved power of the people of the state to amend their Constitution is unlimited. But this power must be exercised in substantial conformity to the provision of the Constitution itself. Courts can approve only those acts of the people which are in substantial conformity with the procedure provided by or under authority of the Constitution.”

Proponent, Joe Windes, through his attorney, filed an application on November 13, 1996, to allow proponent Windes to withdraw the 204,901 signatures to this initiative petition, and have this Court dismiss these proceedings as moot. He states he wishes to advance a different but undisclosed constitutional procedure. No legal authority is cited in the application which would permit a proponent to withdraw signatures from an initiative petition after the petition has been submitted to a court for determination of the legality of the petition, nor has this Court found any such authority. The right to sign an initiative petition is a personal privilege, and the right to withdraw a signature from a petition can be exercised only by the person directly concerned. State, ex rel, Hindley v. Superior Court, 70 Wash. 352, 126 P. 920, 923 (1912). In re Initiative Petition No. 2, City of Chandler, 170 Okla. 507, 41 P.2d 101 (1935), and cases therein cited, hold that one who has signed an initiative petition may withdraw his signature after the petition has been filed only so long as action has not been taken to determine the sufficiency of the signatures.

The sufficiency of the number of signatures upon the petition in this case was made long ago. Furthermore, the legal issues arising from this initiative petition ease fall within the rubric of public law questions, and one party or proponent may not unilaterally invalidate the signatures to the petition and attempt to moot the issues. Therefore, this belated application to withdraw the signatures from the initiative petition is DENIED.

The term limits initiative is invalid as a whole because it is beyond the reserved initiative power of the people set out in article 5, see. 1 of the Oklahoma Constitution. It may not be submitted to the people.

Our decision today to invalidate Initiative Petition No. 364, State Question No. 673 is based upon separate, adequate, and independent State law grounds. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, (1983).

KAUGER, V.C.J., and LAVENDER, SIMMS, OP ALA (concurs specially) and WATT, JJ., concur. SUMMERS, J., concurs in part, dissents in part. ALMA WILSON, C.J., and HODGES and HARGRAVE, JJ., dissent.

1 .The People of Oklahoma find and declare that:

Whereas, the People of our State voted by over sixty-six percent to limit the terms of U.S. Representatives to three terms and limit U.S. Senators to two terms, and Whereas, the U.S. Supreme Court has ruled that an amendment to the U.S. Constitution is necessary to limit terms of members of Congress, and

Whereas, there are two methods to propose amendments to the U.S. Constitution that must then be ratified by three-fourths of the States, or thirty-eight. These methods are (1) for two-thirds of both houses of the United States Congress to so vote, or (2) for thirty-four States to apply for an Article V convention to so vote, and

Whereas, the Congress has refused to propose such an amendment, and by a clear majority, defeated the same term limits passed by over sixty-six percent of the Voters of our State in 1994, and

Whereas, the Congress has a clear conflict of interest in proposing term limits on its own members.

Therefore, We, the People of Oklahoma, hereby amend our state constitution pursuant to our power under that constitution.

We, the People of Oklahoma, hereby state our desire that this Oklahoma constitutional amendment leads to the adoption of the United States Constitutional Amendment set forth in this amendment.

We, the People of Oklahoma, find that the Voters of our State should be informed regarding incumbent state legislators’ support for the following proposed application to Congress:

We, the People and Legislature of the State of Oklahoma, due to our desire to establish Term Limits on the Congress of the United States, hereby make application to Congress, pursuant to our power under Article V, to call an Article V Convention.

2 . Section 2 — Public Policy of Oklahoma Regarding Federal Term Limits.

It is hereby declared to be the Public Policy of the State of Oklahoma that the terms of office of Members of the United States Congress should be limited to three terms for members of the House of Representatives and two terms for Members of the Senate, and the United States Constitution should be amended to so provide.

3 . Section 3 — Instruction to the Legislature Regarding Federal Term Limits.

In furtherance of the Public Policy stated in Section 2 of this Amendment, the People of Oklahoma hereby instruct each Member of the Oklahoma Legislature to use all of his or her delegated powers to make application under Article V of the United States Constitution to the United States Congress calling for an Article V Convention for the purpose of proposing the following Amendment to the United States Constitution: CONGRESSIONAL TERM LIMITS AMENDMENT

Section A. No person shall serve in the office of United States Representative for more than three terms, but upon ratification of this amendment no person who has held the office of United States Representative or who then holds the office shall serve for more than two additional terms.

Section B. No person shall serve in the office of United States Senator for more than two terms, but upon ratification of this amendment no person who has held the office of United States Senator or who then holds the office shall serve for more than one additional term. Section C. This amendment shall have no time limit within which it must be ratified to become operative upon the ratification of the legislatures of three-fourths of the several States.

4 .Section 4 — Information to the Voters Regarding Federal Term Limits.

In furtherance of the Public Policy stated in Section 2 of this Amendment and the Resolution of the People stated in Section 3 of this Amendment, all primary, runoff, and general election ballots shall have the notation "FAILED TO COMPLY WITH CONSTITUTIONAL INSTRUCTION ON TERM LIMITS" printed adjacent to the name of any Member of the State Législature seeking state legislative office who, during their preceding term of office:

(a) failed to sponsor or otherwise to propose, in a timely fashion, a legislative measure that would cause to be made the application to Congress set forth in Section 3 of this Amendment, if no other legislator has so sponsored or otherwise proposed such a measure; or

(b) failed to vote in favor of any measure to make application to Congress set forth in Section 3 of this Amendment when brought to a vote in the State Legislature or any committee or subcommittee thereof; or

(c) failed to vote against any change, addition, or modification to the application set forth in Section 1 of this Amendment; or

(d) failed to vote against any attempt to delay, table, or otherwise prevent a vote of the Legislature on any measure to make the application to Congress set forth in Section 3 of this Amendment; or

(e) failed in any way to ensure that all votes of the Oklahoma legislature on the application set forth above or any amendment sent to the States for ratification are recorded and made available to the People; or

(£) failed to vote in favor of the constitutional amendment set forth in Section 3 of this Amendment, if it is sent to the States for ratification; or

(g) failed to vote against any amendment with longer term limits if such an amendment is sent to the States for ratification.

The notation provided for in this section when required by any of subsections (a) through (e) shall not appear adjacent to the names of candidates for state legislature if the State of Oklahoma has made an application to Congress for an Article V convention pursuant to the Act and such application has not been withdrawn, or if a Congressional Term Limits Amendment has been submitted to the states for ratification.

The notation provided for in this section when required by any of subsections (f) through (g) shall not appear adjacent to the names of candidates for state legislature if the State of Oklahoma has ratified the proposed Congressional Term Limits Amendment set forth above.

The notation provided for in this section when required by any of subsections (a) through (g) shall not appear adjacent to the names of candidates for state legislature if the proposed Congressional Term Limits Amendment set forth above has become part of the Unites States Constitution.

5 . Section 5 — Determination of Applicability of Notation Regarding Federal Term Limits.

It shall be the ministerial duty of the Secretary of State Election Board to ascertain whether the notation provided in Section 4 of this Amendment shall be printed on any ballot adjacent to the name of any candidate. The Secretary of the State Senate and the Chief Clerk of the State House of Representatives shall provide to the Secretary of the Election Board such records as are necessary in order to ascertain whether the notation provided in Section 4 of this Amendment shall be so printed.

Within ten days following the last day of the filing period for state legislative offices, the Secretary of the Election Board shall cause to be published in a newspaper of general circulation a list of candidates whose names on the ballot shall be accompanied by the notation provided in Section 4 of this Amendment. Within ten days following the publication of the fist described in the preceding sentence, any person may file an objection with the Secretary of the State Election Board to have the notation placed on the ballot adjacent to the name of any candidate. Upon the filing of such objection, the notation shall be placed on the ballot unless the Secretary of the State Election Board finds, by clear and convincing evidence, that the candidate in question has fully compiled (sic) with this amendment.

6 . Section 6 — Severability.

The provisions of this Amendment are severa-ble, and if any part or provision of this Amendment shall be void, invalid, or unconstitutional, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this Amendment, and the remaining provisions of this Amendment shall continue in full force and effect.

1 . Plebiscite is a general term for any test of the people’s sentiment, preference, choice or will upon any issue. For the use of this term in a broad context see Kuniyuki v. Acheson, 94 F.Supp. 358, 365 (W.D.Wash.1950); Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1187 (Alaska 1985) (Moore, J., dissenting). A plebiscite is distinguishable from an initiative or referendum. The latter has a much narrower meaning. For an in-depth discussion of various forms of plebiscite, see generally Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990); Eule, Checking California’s Plebiscite, 17 Hastings Const.L.Q. 151 (1990).

5 . Hawke, supra note 3, 253 U.S. at 226-227, 40 S.Ct. at 496-497.