OKLAHOMA ASSOC. OF OPTOMETRIC PHYSICIANS v. RAPER

2018 OK 13, 412 P.3d 1160
Supreme Court of Oklahoma·Decided February 6, 2018·No. Case Number: 115938·Published·Cited by 3 cases

Opinions

Colbert, J.

¶1 The sole issue presented for consideration is whether Initiative Petition No. 415, State Question No. 793, satisfies the single subject requirement of article 24, section 1, of the Oklahoma Constitution. We limit our inquiry to deciding the "challenges fundamental to the validity of the Petition as a whole." In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, ¶ 2, 820 P.2d 772, 774. In doing so, we reemphasize that it is the prerogative of the Oklahoma voters, not this Court, to determine the propriety of Initiative Petition No. 415. See Id. For the reasons expressed herein, we conclude that the proposed amendment embraces one general subject-the provision of optical care services within retail mercantile establishments-and therefore, complies with article 24, section 1, of the Oklahoma Constitution. In so holding, the proponents of the petition may proceed with the remaining statutory requirements.

I. BACKGROUND

A. The Current Law.

¶2 Current Oklahoma law prohibits any optometrist or optician from practicing their profession within a retail mercantile establishment. Okla. Stat. tit. 59, § 596.1 The purpose of the prohibition is to "establish a *1162minimum standard of sanitation, hygiene and professional surroundings." Okla. Admin. Code tit. 505:10-5-1. To this end, no optometrist may practice his or her profession within a room or part of a room occupied by a wholesale or retail mercantile establishment. Id. at 505:10-5-1 (4). In addition, all patient entrances for all optometric offices must open onto a "public street, hall, lobby or corridor." Id. at 505:10-5-1 (2). Further, the law directs the Oklahoma Board of Examiners for Optometry to prescribe such rules and regulations as necessary to effect the minimum health and safety standards and to determine what constitutes unprofessional or unethical actions in relation thereto. Okla. Stat. tit. 59, § 585 (A)(5).

B. The Challenged Measure.

¶3 On March 21, 2017, Kiley Raper and Gwendolyn Caldwell (Proponents) filed Initiative Petition No. 415, State Question No. 793 (Initiative Petition) with the Oklahoma Secretary of State. By initiative process, the Initiative Petition seeks to amend Article 20 of the Oklahoma Constitution by adding a new section. The proposed section, Section 3, changes existing law by permitting optometrists and opticians to practice their trades in retail mercantile establishments, such as a Wal-Mart or an enclosed shopping mall. The section purports to eliminate any location restraints on the two occupations by prohibiting laws that: (1) discriminate based on location or setting of the practice, (2) require an optometric office, within a retail mercantile establishment, to have an entrance opening onto a public street, hall, lobby or corridor, or (3) restrain, abridge or infringe on the ability of the retail mercantile establishment from selling, allowing the sale, or providing for the sale of optical goods and services, upon prescription, to the general public within the premises of the retail mercantile establishment. The proposed ballot title also preserves Legislative authority to "restrict optometrists from performing surgeries within retail mercantile establishments, limit the number of locations at which an optometrist may practice, maintain optometric licensing requirements, require optometric offices to be in a separate room of a retail mercantile establishment, and impose health and safety standards."2

*1163¶4 Petitioners, Oklahoma Association of Optometric Physicians (OAOP) and Dr. Michelle Ward (collectively Opponents), filed an Application to Assume Original Jurisdiction, seeking review of the Initiative Petition's constitutionality under article 24, section 1, of the Oklahoma Constitution. Opponents allege that optometrists and opticians are two distinct professions, one a medical provider/prescription writer; and the latter, a supplier/prescription filler. Because of the distinctions, Opponents contend that including both professions in one initiative petition that permits their respective professions to render services in retail shops violates the general subject rule and constitutes logrolling under article 24, section 1.

¶5 Proponents defend the measure, emphasizing the long-standing interrelationship between the two professions in the commercial context. Proponents' express objective is based on the idea that each step in the optical care delivery chain-eye examination and prescription (optometrist), and fitting for eye wear (optician)-can be accomplished in one convenient location: retail mercantile establishments. According to the Proponents, eye wear retailers and retail mercantile establishments should be able to compete with optometrists who can offer the convenience of one stop shopping for eye examination and purchase of eye wear. Thus, the effect and stated goal of the petition is to permit the expansion of optical care services into retail mercantile establishments.

II. DISCUSSION

¶6 "The first power reserved by the people is the initiative ...". Okla. Const. art. 5, § 2. Inherent, is "the power to propose *1164laws 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." Okla. Const. art. 5, § 1. When presented with a challenge to an initiative petition, this Court will assume original jurisdiction to determine the validity of the proposed initiative petition. In re Initiative Petition 403, State Question No. 779, 2016 OK 1, ¶ 3, 367 P.3d 472, 474. A proposed ballot initiative, then, will not be refused or declared invalid in advance of a vote of the people without a "clear or manifest" showing of unconstitutionality.

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OKLAHOMA ASSOC. OF OPTOMETRIC PHYSICIANS v. RAPER, 2018 OK 13, 412 P.3d 1160 (Okla. 2018).

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OKLAHOMA ASSOC. OF OPTOMETRIC PHYSICIANS v. RAPER
2018 OK 13 (Supreme Court of Oklahoma, 2018)