In re Initiative Petition No. 365, 94,155.

• Decision Date: 02 July 2002
• Docket Number: No. 94,155.,94,155.
• Citation: 2001 OK 98,55 P.3d 1048
• Parties: In re INITIATIVE PETITION NO. 365, STATE QUESTION NO. 687.
• Court: Oklahoma Supreme Court

55 P.3d 1048

2001 OK 98

In re INITIATIVE PETITION NO. 365, STATE QUESTION NO. 687.

No. 94,155.

Supreme Court of Oklahoma.

July 2, 2002.

Rehearing Denied August 15, 2002.

D. Kent Meyers, Roger A. Strong, Paige S. Bass, Crowe & Dunlevy, Oklahoma City, OK, attorneys for Opponents Tom Hargus and James T. Tyler.

Larry L. Oliver, Larry L. Oliver & Associates, P.C., Tulsa, Oklahoma, and Lee Slater, Oklahoma City, OK, attorneys for Opponents James Talley, Kelly Barger, Sheryl Maize, George Day, Joseph Clinton Phillips, D.D.S., Mark Kelly, Judy Hamilton, Jeffrey Pearce, Bill McNatt, and Mark Urbanosky and "John Doe."

Marc Edwards, Phillips McFall McCaffrey McVay & Murrah, P.C., attorney for Petitioners.

PER CURIAM.

¶ 1 This is an original action brought pursuant to 34 O.S.Supp.2001, § 8 by Opponents Tom Hargus and James T. Tyler and by Opponents James Talley, Kelly Barger, Sheryl Maize, George Day, Joseph Clinton Phillips, D.D.S., Mark Kelly, Judy Hamilton, Jeffrey Pearce, Bill McNatt, and Mark Urbanosky and "John Doe" challenging the numerical and legal sufficiency of Initiative Petition No. 365, State Question No. 687 that seeks to ban cockfighting in the State of Oklahoma. We hold numerical and legal sufficiency is established and that the petition meets the standards for submission to the people.

¶ 2 Opponents' challenges to the petition fall into two categories, to-wit: challenges to the numerical sufficiency of the signatures and numerous constitutional challenges. Petitioners argue that Opponents fail to meet their burden of clear and convincing proof regarding the invalidity of certain signature challenges and contend that the constitutional challenges lack merit.

STANDARD OF REVIEW

¶ 3 The proceeding in this Court is authorized by 34 O.S.Supp.2001, § 8, 1992 Okla. Sess.Laws, ch. 92, § 7 and is not appellate in character but constitutes a transference to this Court by the Secretary of State "of all the papers and documents on file in his office relating to the initiative or referendum petition for an original investigation and hearing de novo." In re Initiative Petition No. 281, State Question No. 441, 1967 OK 230, ¶ 5, 434 P.2d 941, 945

.

¶ 4 This Court then transferred the matter to Referee Gregory Albert on February 22, 2000 to conduct hearings on the numerical and legal sufficiency of the signatures and to issue a report of his findings of fact and conclusions of law. The hearing commenced on October 2, 2000 and concluded on November 2, 2000. Referee Albert then issued an initial report on November 13, 2000. Petitioners made timely exceptions to this Report, and the Referee issued a Revised Report on November 28, 2000. The Referee's unchallenged findings will be accepted by this Court; we will review de novo those findings to which timely exceptions were made.

SIGNATURE CHALLENGES

¶ 5 When an opponent attacks signatures that appear on an initiative petition on the basis its signers were not registered voters, a presumption arises that the persons are registered voters. The opponent bears the burden of producing sufficient competent evidence to overcome this presumption. In re Initiative Petition No. 249, 1950 OK 238, ¶ 0, 222 P.2d 1032 (Syllabus). As we review Opponents' challenges herein, it is important to note that a successful challenge to a signature renders moot another challenge to that signature. Oklahomans for Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, ¶ 15, 501 P.2d 1089, 1092.

¶ 6 Const. Art. 5, § 2 requires that the petition be signed by a number of legal voters equal to at least eight percent (8%) of "the total number of votes cast at the last general election for the State office receiving the highest number of votes at such election." The election to which we look is that of November, 1998, and the number of signatures necessary to place the instant petition before the people is 69,887. The Secretary of State determined the total number of signatures on the petition to be 99,750. Opponents challenge the validity of 54,897 signatures. Successful challenge to 29,864 signatures would render the petition invalid. Opponents set forth the following individual challenges.

Signatures taken by circulator Robert Godwin: 3,205

¶ 7 Opponents challenge 3,205 signatures taken by a circulator named Robert Godwin, who refused to obey subpoenas and other court orders commanding him to appear. We deny this challenge because the evidence was not critical and it would penalize Petitioners, who are blameless with regard to this circulator's refusal to appear.

Signatures collected by Don Card: 4,120

¶ 8 Opponents challenge the validity of petitions circulated by Don Card on the basis Mr. Card was not a qualified elector as required in 34 O.S.Supp.2001, § 3.1 and under Oklahoma Constitution Article 3, § 1 that states, "Subject to such exceptions as the Legislature may prescribe, all citizens of the United States, over the age of eighteen (18) years, who are bona fide residents of this state, are qualified electors of this state." We note that a circulator is required only to be a "qualified elector," not a registered voter. Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, ¶ 8, 501 P.2d 1089, 1092.

¶ 9 Evidence at the hearing established Mr. Card is a United States citizen over eighteen years of age. However, Opponents presented sufficient evidence at the hearing to support a finding that Mr. Card is not a qualified elector. Therefore, we must disqualify these 4,120 signatures.

Signatures taken by circulator Billy Calvin: 7,542

¶ 10 Opponents challenge 7,542 signatures gathered by a circulator named Billy Calvin. The evidence at the hearing established Mr. Calvin is a bona fide resident of the State of Oklahoma and is over the age of eighteen. Therefore, Mr. Calvin is a qualified elector and eligible to circulate the petition. As such, we deny this challenge. Signatures of persons whose signatures on the petition pre-dated their voter registration dates: 143 net [433 total, 290 previously disqualified because collected by Don Card]

¶ 11 Opponents challenge these signatures and presented conclusive evidence 143 persons [net] applied for voter registration at the time they signed the petition. Pursuant to 34 O.S.Supp.2001, §§ 3, 6 and 23, only registered voters have the right to sign initiative petitions. Therefore, we must disqualify these 143 net signatures.

Signatures collected by Arling Medina: 3,366

¶ 12 One of the petition circulators, Mr. Arling Medina, testified that at no time did he appear before a notary public to execute the affidavits attached to the signatures he gathered. He also testified he did not sign such affidavits under oath. His testimony was corroborated by a co-worker who testified that a Ms. Herrian, the circulator in charge who notarized Mr. Medina's signature, came to Mr. Medina's office to gather previously signed pamphlets. Evidence showed that Ms. Herrian's notary logs did not reflect any record of notarization for Mr. Medina. We have held that the failure of an affiant to appear personally before a notary destroys the verification and invalidates the signatures on those sheets. See, e.g., In re Initiative Petition No. 347, 1991 OK 55, ¶ 48, 813 P.2d 1019, 1035,

[citing In re Initiative Petition No. 142, State Question No. 205, 176 Okl. 155, 55 P.2d 455 (1936) and In re Initiative Petition No. 281, State Question No. 441, 434 P.2d 941 at pp. 953-956 (Okl.1967)]. Therefore, we must disqualify these 3,366 signatures.

Signatures involving defects arising from notarization Signatures on petitions where the notaries failed to file proper notary bonds: 1,246

¶ 13 Before entering upon the duties of the office, a notary must file his or her commission from the Secretary of State and a one thousand dollar ($1,000.00) bond with the court clerk for the county in which the notary resides or is employed. 49 O.S.Supp. 2001, § 2. The circulator's affidavit is required along with a valid notarization pursuant to 34 O.S.Supp.2001, § 6 and 12 O.S.Supp.2001, 432, respectively. We disqualified signatures on pamphlets in which the circulator's verification was before a notary public whose commission had expired in Oklahomans for Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, ¶ 18, 501 P.2d 1089, 1093. The undisputed evidence in the instant case established the notaries on these 1,246 challenged signatures failed to file their bonds. As such, they were without power to perform notarial acts. We must disqualify these 1,246 signatures.

Signatures challenged for defective notarization: 300

¶ 14 Opponents challenge 300 signatures for defective notarization. The circulator of the petitions on which these signatures appear, Ms. Inez Blandon, testified she signed her petition affidavits in the presence of Ms. Evalena Herrian, a notary. Ms. Blandon testified at the hearing that she believed Ms. Herrian's husband, Dean Herrian, might have been present when her petition affidavits were notarized. Evidence received during the course of the hearing revealed that, in fact, it was Mr. Herrian, not Mrs. Herrian, who actually notarized Ms. Blandon's affidavits. However, Ms. Blandon's confusion does not impeach her oath as a circulator, wherein she attested to her status as a qualified elector, to the execution of the petition signatures in her presence and to her belief in the correctness of the signers' addresses. In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, ¶ 49, 813 P.2d 1019, 1036. Therefore, we deny this challenge.

Signatures challenged for illegible notary names on petitions: 153

¶ 15 Opponents challenge 153 signatures on petitions for illegible notary names. At the hearing, Petitioners elicited testimony that established these notaries were properly qualified. Therefore, we deny this challenge.

Signatures challenged on the basis the notary public's bond was not filed with the Oklahoma County Court...