Edmondson v. Pearce, No. 98,754.

• Court: Supreme Court of Oklahoma
• Writing for the Court: PER CURIAM
• Citation: 91 P.3d 605,2004 OK 23
• Parties: Attorney General W.A. Drew EDMONDSON, District Attorneys Virginia D. Sanders, John David Luton, James Thornley, Richard Gray, Mitchell D. Sperry, Robert E. Christian, Robert C. Schulte, Eddie Wyant and Max Cook, the Governor of Oklahoma and the Oklahoma State Bureau of Investigation, Petitioners, v. Jeffrey PEARCE, George Day, Eugene Eubanks, Shermon Coombes, Robert Crittenden, Clarence Stockton, Tommy Fannin, Brad Weger, Jimmy Beal, Charlie Woolard, Judy Hamilton, Merle E. Gregory, Jeffery C. Harris, Larry C. Hull, Jim Parnell, Sam Ryals, Val Holland, Sal Corillo, David Bates, Gary Carter, J.W. Chadwick, Gary Gilliam, Marci Gilliam, Louis Chaffin, Albert Dink Fair, Johnny Benett, G.W. Poyner, Frank Stansberry, Dale Hill, Danny L. Miller, Tillman L. Hammonds, Tony James, Paula Durant, Merilynn Cogburn, Robert Roebuck, John Mack Hampton, Kellyville Game Club, an Oklahoma Corp., Coleta Smith, an Individual, Clayton Smith, an Individual, Mary Knight, Jim Tyler, Earl Jones, Wilkie Flowers, Jr., T.J. Hogan, Debra E. McCarty, Odis Williamson, Steven D. Tankersley, Bob Melton, Olen Weaver, Barney Barnett, Mem Incorporated, an Oklahoma Corporation d/b/a Poultry Palace, Leanne Hornback, Kelly Barger, Barbara Bryant, Kevin Bryant, and Others Similarly Situated, Respondents.
• Decision Date: 30 March 2004
• Docket Number: No. 98,754.

91 P.3d 605
2004 OK 23

Attorney General W.A. Drew EDMONDSON, District Attorneys Virginia D. Sanders, John David Luton, James Thornley, Richard Gray, Mitchell D. Sperry, Robert E. Christian, Robert C. Schulte, Eddie Wyant and Max Cook, the Governor of Oklahoma and the Oklahoma State Bureau of Investigation, Petitioners,
v.
Jeffrey PEARCE, George Day, Eugene Eubanks, Shermon Coombes, Robert Crittenden, Clarence Stockton, Tommy Fannin, Brad Weger, Jimmy Beal, Charlie Woolard, Judy Hamilton, Merle E. Gregory, Jeffery C. Harris, Larry C. Hull, Jim Parnell, Sam Ryals, Val Holland, Sal Corillo, David Bates, Gary Carter, J.W. Chadwick, Gary Gilliam, Marci Gilliam, Louis Chaffin, Albert Dink Fair, Johnny Benett, G.W. Poyner, Frank Stansberry, Dale Hill, Danny L. Miller, Tillman L. Hammonds, Tony James, Paula Durant, Merilynn Cogburn, Robert Roebuck, John Mack Hampton, Kellyville Game Club, an Oklahoma Corp., Coleta Smith, an Individual, Clayton Smith, an Individual, Mary Knight, Jim Tyler, Earl Jones, Wilkie Flowers, Jr., T.J. Hogan, Debra E. McCarty, Odis Williamson, Steven D. Tankersley, Bob Melton, Olen Weaver, Barney Barnett, Mem Incorporated, an Oklahoma Corporation d/b/a Poultry Palace, Leanne Hornback, Kelly Barger, Barbara Bryant, Kevin Bryant, and Others Similarly Situated, Respondents

No. 98,754.

Supreme Court of Oklahoma.

March 30, 2004.

Rehearing Denied June 7, 2004.

As Corrected July 28, 2004.

91 P.3d 609

Sherry A. Todd, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, OK, for petitioners

Larry L. Oliver of Larry L. Oliver & Associates, P.C., Tulsa, OK, for all respondents except T.J. Hogan and Debra E. McCarty.

Tom C. Lane, Sr. of Tom C. Lane, Sr. & Associates and Gary E. Thompson, Sapulpa, OK, for respondents, Kellyville Game Club, an Oklahoma corporation, Coleta Smith, an individual and Clayton Smith, an individual.

PER CURIAM:

¶ 1 Petitioners, the Oklahoma Attorney General and Governor, certain district attorneys and the Oklahoma State Bureau of Investigation request us to assume original jurisdiction to grant declaratory relief upholding the constitutionality of 21 O.S.Supp.

91 P.3d 610

2003, § 1692.1 et seq., (the Act) passed by a vote of the electorate via the initiative process at the November 2002 election. Generally, the Act bans cockfighting (as defined) and related activities, outlaws being a knowing spectator at cockfighting events and sets criminal penalties for violating the Act's terms. The Act also contains a forfeiture provision that comes into play following a conviction under certain sections of the Act.¹

¶ 2 Petitioners initiated this case after respondents and others—individuals and companies involved in aspects of cockfighting— obtained temporary restraining orders (TROs) and/or temporary injunctions against enforcement and/or prosecution under the Act in several State district courts.² Respondents

91 P.3d 611

ask us to decline assuming original jurisdiction and, alternately, should we assume it, to hold the Act unconstitutional based on challenges raised by them under multiple provisions of the United States and Oklahoma Constitutions. We assume original jurisdiction and uphold the facial constitutionality of the Act over the challenges made by respondents.³

PART I. THE DISTRICT COURT ACTIONS AND RESPONDENTS' GENERAL CONSTITUTIONAL CHALLENGES.

¶ 3 Although we have not been provided all trial court petitions filed in the district court cases, we have before us the trial court petition filed in McCurtain County. That case was filed by eight plaintiffs, who are also respondents here.⁴ Based on review of materials submitted by both petitioners and respondents, we understand the allegations and arguments made in McCurtain County are representative of the allegations and arguments made by respondents in the other district court cases.⁵

¶ 4 In the McCurtain County case, five plaintiffs allege involvement in the sport of cockfighting for many years and that they are subject to being prosecuted under the Act for their associations and actions in the cockfighting business. Another plaintiff is described in the petition as a long time cockfighter involved in all aspects of the industry and that he is also subject to being prosecuted under the Act. A seventh plaintiff is alleged to enjoy watching birds fight in his backyard and at cockfighting derbies and that his activities will subject him to criminal prosecution under the Act. The eighth plaintiff alleges: involvement in the sport of cockfighting for many years as a breeder and grower selling game fowl in the international market; he does not compete in fighting

91 P.3d 612

cocks; he stands to lose two hundred fifty thousand dollars ($250,000.00), including his farm if the law is enforced; and that he is subject to prosecution under the Act for his associations and actions in the cockfighting business

¶ 5 The McCurtain County petition also alleges that prior to passage of the Act cockfighting was legal in Oklahoma and that there were over fifty thousand (50,000) citizens like plaintiffs directly involved in cockfighting as breeders, owners, participants, spectators or as suppliers of feed and cockfighting-related products, who stand to sustain substantial damage by virtue of the Act becoming law. The petition also alleges cockfighting in Oklahoma is a major sporting industry with an estimated investment in the State in excess of one hundred million dollars ($100,000,000.00), there are an estimated five hundred thousand (500,000) game fowl in the State involved in the cockfighting industry and that major breeders of game fowl in Oklahoma have historically marketed their game fowl throughout the State, the United States and internationally. The petition also alleges the Act provides for no grace period for persons owning game fowl to protect their investment.⁶

¶ 6 The petition further, in effect, alleges the Act's terms, if enforced 1) constitute a deprivation of private property for public use without just compensation; 2) unconstitutionally impinge upon or impair the obligation of contracts, which one or more of the plaintiffs or others similarly situated are parties to, including contracts to sell birds to be used in cockfighting, contracts legal when made but which cannot legally be performed without violating the Act's terms; and 3) unconstitutionally infringe upon free speech and associational rights. In either the McCurtain County petition, a brief filed in that case or in briefs or submissions in this case, respondents attack the constitutionality of the Act under: U.S.CONST. art. I, § 10 (impairment of obligation of contracts); U.S.CONST. amend. I (First Amendment—speech, associational or assemblage rights); U.S.CONST. amend. V (Fifth Amendment—taking of private property for public use without just compensation); U.S.CONST. amend. XIV, § 1 (Fourteenth Amendment—vague and overbroad provisions violating liberty and property rights without due process); and as violative of the fundamental right to travel. The Act is also attacked under: OKLA. CONST. art. 2, § 2 (unconstitutionally denies inherent rights to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry); OKLA.CONST. art. 2, § 3 (right of assembly); OKLA.CONST. art. 2, § 7 (deprivation of liberty or property without due process); OKLA.CONST. art. 2, § 15 (impairment of obligation of contracts); OKLA.CONST. art. 2, § 22 (free speech rights); OKLA.CONST. art. 2, § 24 (taking or damaging private property for public use without just compensation); and, finally, OKLA.CONST. art. 5, § 57 (the Act unconstitutionally concerns multiple subjects not clearly expressed in the ballot title voted on by the electorate).⁷

¶ 7 We have also been provided with the Order Granting Temporary Injunction entered by the trial judge in the McCurtain County case, as consolidated with cases in Choctaw and Pushmataha Counties.⁸ The Order basically sets forth that testimony was presented by the plaintiffs at a hearing there to the effect that gamecocks are good for only one purpose, i.e., fighting each other, that these birds are not suitable for consumption or any other purpose and because

91 P.3d 613

there is no market for them, other than for fighting, their owners will be forced to destroy them or, if said birds are not destroyed, their owners will be subject to criminal prosecution under the Act. The trial judge, apparently relying on this testimony, actually concluded in the Order Granting Temporary Injunction that the State is, in effect, forcing them to destroy their birds, cockfighting equipment and other property.⁹

¶ 8 The Order Granting Temporary Injunction also indicates that evidence was presented indicating there are seven thousand (7,000) Oklahoma members of the Game Fowl Breeders Association; that some breeders have contracts for the sale of their birds, including futures contracts; gamecock operations range from three hundred (300) to seven hundred (700) birds with values ranging from seventy-five thousand dollars ($75,000.00) to one hundred thousand dollars ($100,000.00); and that some gamecock operations have mortgages under which the birds are considered net assets and pledged as collateral. The Order Granting Temporary Injunction further sets forth that none of the testimony offered by plaintiffs was challenged by the defendants there and defendants, who were represented either by an Assistant Attorney General or the local District Attorney, offered no witnesses.

¶ 9 With these matters understood, we turn to the issues of the propriety of assuming original jurisdiction and then to the constitutional challenges to the Act.

PART II. PROPRIETY OF ASSUMING ORIGINAL JURISDICTION.

¶ 10 When a matter involves a controversy over which both this Court and the district courts have concurrent jurisdiction (as here), the determination whether to assume original jurisdiction in a particular case is...