In re Initiative Petition No. 366

• Decision Date: 02 April 2002
• Docket Number: No. 95,070.,NO. 366,366,95,070.
• Citation: 46 P.3d 123,2002 OK 21
• Parties: In re INITIATIVE PETITION NO. 366, State Question No. 689.
• Court: Oklahoma Supreme Court

46 P.3d 123

2002 OK 21

In re INITIATIVE PETITION NO. 366, State Question No. 689.

No. 95,070.

Supreme Court of Oklahoma.

April 2, 2002.

Matthew F. Stowe, Patton Boggs, Washington, DC, for Proponent Carol Martin.

Ron Kirby, Lawton, OK, Pro Se Proponent.

James C. Thomas, Tulsa, OK, for Protestant, Delilah Christine Gentges.

John E. Parris, Fannie Bates, Norman, OK, for Protestant Fannie Bates.

Neal Leader, Senior Assistant Attorney General, Oklahoma City, OK, for Amicus Curia Attorney General W.A. Drew Edmondson.

Steven M. Presson, Jackson & Presson, Norman, OK, for American Civil Liberties Union of Oklahoma Foundation, American Civil Liberties Union Foundation of Northern California, Inc., Mexican American Legal Defense and Education Fund, Asian American Legal Defense and Educational Fund, Employment Law Center of the Legal Aid Society of San Francisco.

Julian K. Fite, David A. Mullon, Jr., Richard D. Osburn, Cherokee Nation, Tahlequah, OK, for amicus curiae Cherokee Nation.

HODGES, J.

I. HISTORY

¶ 1 May 10, 2000, Oklahoma State Senator Carol Martin and Oklahoma State Representative Ron Kirby (proponents) started a petition drive for Initiative Petition No. 366¹ to enact a new statute. The proposed statute designates English as Oklahoma's official language; requires all official documents, transactions, proceedings, meetings and publications of the State of Oklahoma and its political subdivisions to be in English only, requires the return to the general revenue fund of all money appropriated or designated for translation or printing materials in a language other than in English, and prohibits all future expenditure of funds for translation services and printing in a language other than English. The petition provides for exceptions for conflicts with the federal constitution, laws, and regulations and with the Oklahoma Constitution. The petition makes an exception for educational institutions subject to rules adopted by the Board of Education and State Board of Regents.

¶ 2 Oklahoma's Attorney General, deeming the ballot title proposed by the proponents to be legally inadequate, submitted a substitute ballot title.² A protest to the signatures was lodged and then abandoned. Numerous protests and letters were submitted and have been considered by this Court.³ The proponents attempted to withdraw Petition No. 366 after it was submitted to the Secretary of State. The motion to withdraw the petition was denied. The matter is now before this Court on the merits. The proponents have declined to submit briefs to this Court.

II. ISSUES

¶ 3 The issues in this case are: (1) whether this Court should conduct a pre-election review of Petition No. 366, and (2) whether Petition No. 366 is constitutionally flawed. We hold that it is appropriate for this Court to address the constitutionally of the petition and that the petition is constitutionally flawed.

III. PROPRIETY OF REVIEW

¶ 4 The right of initiative petition and referendum is a right protected by the Oklahoma Constitution and Oklahoma Statutes.⁴ This right is not without limitations.⁵ This Court has entertained pre-election attacks on initiative petitions to avoid costly and unnecessary elections.⁶ As discussed below, Initiative Petition No. 366 is fraught with infirmities. It would be a disservice to the citizens of Oklahoma to submit a petition which could not withstand a constitutional attack to a state-wide vote.⁷

IV. BACKGROUND

¶ 5 Twenty-two states,⁸ as well as a number of municipalities,⁹ have English only laws. In contrast to Initiative Petition No. 366, most of the laws make English the official language of the governmental entity and are non-prohibitive, brief, and symbolic.¹⁰ Arizona adopted a constitutional provision similar to Petition No. 366.¹¹ The Arizona provision was labeled as one of the most restrictive state measures.¹² Petition No. 366 is even more restrictive than Arizona's provision. Like the Arizona provision, Petition No. 366 makes exceptions for conflicts with federal law. However, the Arizona provision made exceptions for protection of public health and safety and for the protection of the rights of criminal defendants. Petition No. 366 does not make these exceptions. The Arizona provision was declared unconstitutional by both the Court of Appeals for the Ninth Circuit¹³ and the Arizona Supreme Court.¹⁴

V. CONSTITUTIONAL IMPLICATIONS

¶ 6 In an apparent attempt to avoid the constitutional infirmaries of the Arizona provision, Petition No. 366 makes a specific exception for conflicts with the United States and Oklahoma constitutions and with federal statutes and regulations.¹⁵ Petition No. 366 states that it should not be construed to limit the constitutional rights of "any citizen, state employee, private business or corporation.. . ." These two provisions are mere surplusage because a statutory provision that conflicts with either the United States Constitution or the Oklahoma Constitution is unenforceable.¹⁶ In assessing the First Amendment infringements of the Arizona provision, the Arizona Supreme Court and the Ninth Circuit Court of Appeals did not consider the exception for conflicts with federal law as curing the constitutional abridgements.¹⁷

A. Free Speech and Right of Petition

¶ 7 We first note that the Oklahoma Constitution is more protective of speech than is the United States Constitution.¹⁸ Article 2, section 22 of the Oklahoma Constitution provides:

Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right: and no law shall be passed to restrain or abridge the liberty of speech or of the press. . . .

Article 2, section 3 of the Oklahoma Constitution provides:

The people have the right peaceably to assemble for their own good, and to apply to those invested with the power of government for redress of grievances by petition, address, or remonstrance.

¶ 8 In order to determine whether these constitutional provisions have been abridged, it is necessary to ascertain the exact impact of section B of Petition No. 366. Section B of the petition requires "[a]ll official documents, transactions, proceedings, meetings, or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language."

¶ 9 Rules of statutory construction require words be given their plain meaning considering the context.¹⁹ "Official" means "[p]ertaining to an office; invested with the character of an officer; proceeding from, sanctioned by or done by, an officer."²⁰ An "official act" is "[o]ne done by an officer in his official capacity under color and by virtue of his office."²¹ Applying the rules of statutory construction, section B would prohibit all governmental communications, both written and oral, by government employees, elected officials, and citizens, of all words, even those which are of common usage, in any language other than English when conducting state business. This construction of section B is in keeping with the encompassing words of the petition.

¶ 10 By restricting all governmental communications to the English language, section B seeks to prevent citizens of limited English proficiency from effectively communicating with government officials and from receiving, when available, vital information about government. This restriction is prohibited by both sections 3 and 22 of article 2 of the Oklahoma Constitution.

¶ 11 In Gaylord, this Court discussed the importance of freedom of speech in the political context.²² The freedom of speech protected by section 22 and the freedom to petition the government for redress of grievances protected by section 3 are closely related.²³ Protection of these freedoms is an essential part of the right to participate in self-government.²⁴ Information and meaningful discussion are necessary for a self-governing society.²⁵ "There should be `no potential interference' with a meaningful dialogue of ideas concerning self-government; nor should there be a threat of liability that causes self-censorship."²⁶ These protections are afforded, not only the speaker but also the listener.²⁷ These rights apply equally to those proficient in the English language and those who are not.²⁸

¶ 12 It is difficult to envision a situation where these protections are more necessary than in communications between government officials, whether electees or employees, and citizens. Restricting all governmental communications to English prevents citizens who are of limited English proficiency from effectively communicating with their government. Even with the exceptions for constitutional conflicts, Petition No. 366 would disenfranchise segments of Oklahoma citizens by interfering with their ability to access vital information necessary for a self-governing society and cause self-censorship by inhibiting communications with government officials. All of this in contravention of the Oklahoma Constitution.

B. Vagueness

¶ 13 The due process clause of the Oklahoma Constitution requires statutory prohibitions to be clearly defined.²⁹ Statutory prohibitions which are not clearly defined will be void for vagueness.³⁰ Laws must afford "[a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that [the person] may act accordingly."³¹

¶ 14 There are several inherent dangers of vague laws. Vague laws "may trap the innocent" by failing to provide fair warning.³² By failing to provide explicit standards, vague laws delegate basic policy matters to judges and juries for ad hoc resolution resulting in discriminatory enforcement.³³ A vague law restraining speech causes citizens to avoid lawful conduct for fear of entering the forbidden zone.³⁴ "[A] law which interferes with the right of free speech" is subject to heightened scrutiny³⁵ because "[t]he threat of sanctions may deter [free speech's] exercise almost as potently...