In re Initiative Petition No. 382, O-103,021.

• Decision Date: 20 June 2006
• Docket Number: No. O-103,021.,O-103,021.
• Parties: In re INITIATIVE PETITION NO. 382, State Question No. 729.
• Court: Oklahoma Supreme Court

142 P.3d 400

2006 OK 45

In re INITIATIVE PETITION NO. 382, State Question No. 729.

No. O-103,021.

Supreme Court of Oklahoma.

June 20, 2006.

Rehearing Denied September 11, 2006.

COPYRIGHT MATERIAL OMITTED

¶ 0 This is an original proceeding to challenge the sufficiency of Initiative Petition No. 382, State Question No. 729; and an appeal from the ballot title prepared by the Attorney General. Initiative Petition No. 382 proposes to add a new section to Title 27 of the Oklahoma Statutes that would prohibit (with certain exceptions) the use of the power of eminent domain when the taken property would be ultimately transferred to a private entity and that would require a payment of just compensation (with some exceptions) to any property owner whose property value was adversely affected by the enactment or enforcement of a zoning law. Because we find that Initiative Petition No. 382 is violative of the "single subject rule" of Okla. Const. art. 5, § 57, we hold that it may not be submitted to a vote of the people. Consequently, the appeal of the ballot title is rendered moot.

INITIATIVE PETITION NO. 382 IS DECLARED INVALID; ORDERED STRICKEN FROM THE BALLOT.

Jack S. Dawson, Kieran D. Maye, Jr., Robert E. Norman, Miller Dollarhide, Oklahoma City, OK, for proponent, Rick Carpenter.

Margaret McMorrow-Love, Diane M. Drum, Oklahoma City, OK, for protestants, Oklahoma Professional Economic Development Council, Inc., The Oklahoma Association of Business and Industry, d/b/a The State Chamber, The Greater Oklahoma City Chamber of Commerce, and Don Woods.

Kenneth Dale Jordan, Diane Lewis, Oklahoma City, OK, for amicus curiae, The City of Oklahoma City.

KAUGER, J.

¶ 1 The issue presented is whether Initiative Petition 382 is constitutional and thus able to be submitted to a vote of the people. We hold that because it violates the single subject rule of art. 5, § 57 of the Oklahoma Constitution, it may not, and we order that it be stricken from the ballot.

FACTS

¶ 2 On September 21, 2005, Rick Carpenter (the proponent) filed Initiative Petition 382 (IP 382) with the Secretary of State, and within 90 days after it was filed, the proponent submitted signatures to the Secretary of State. On January 31, 2006, the Secretary of State verified that it contained the required number of signatures and delivered IP 382 to this Court. On February 7, 2006, Attorney General Drew Edmondson determined that the ballot title did not comply with 26 O.S. 2001 § 6-113¹, and attached an amended ballot title noting that the measure deals with two subjects.² The proponent filed an appeal of the ballot title on March 9, 2006. On February 13, 2006, this Court ordered that notice of the purported sufficiency of IP 382 be published, and notice was published on February 20th. The Oklahoma Professional Economic Development Council, Inc., The Oklahoma Association of Business and Industry, d/b/a The State Chamber, The Greater Oklahoma City Chamber of Commerce, and Don Woods (the protestants) filed their protest on May 1, 2006. The briefing cycle was completed on May 22, 2006.

¶ 3 Art. 5, §§ 1 and 2 of the Oklahoma Constitution endow the citizens of Oklahoma with the right of the initiative. Section 1 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.

Section 2 provides in pertinent part:

The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so proposed. . . . The ratio and per centum of legal voters hereinbefore stated shall be based upon 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 right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law.³ Because the right of the initiative is so precious, all doubt as to the construction of pertinent provisions is resolved in favor of the initiative.⁴ The initiative power should not be crippled, avoided, or denied by technical construction by the courts.⁵ However, the right of the initiative is not absolute, and is subject to constitutional and statutory limits.⁶

¶ 4 IP 382 seeks to add a new section to Title 27 of the Oklahoma Statutes.⁷ The proposed new section to Title 27 would limit the power of public bodies to take private property by eminent domain and require just compensation to be paid to any landowner whose property value is negatively affected by a zoning law. IP 382 first proposes that no private property may be taken by a public body if any interest in that property is subsequently conveyed to a private party, with the following exceptions: 1) takings to protect public health and safety; 2) takings of certain interests to finance the property's purchase; 3) takings of property for transportation or utility facilities; 4) takings of property for transmission systems; and 5) conveyances of interests in public facilities to private retail businesses who primarily serve the facility's customers.

¶ 5 IP 382 next proposes that an owner of private real property is entitled to just compensation for any reduction in the fair market value of the property caused by the enactment or enforcement of a zoning law, with the following exceptions: 1) zoning laws that protect public health and safety; 2) zoning laws required by federal law or nuisance law; 3) zoning laws limiting the use of property for nude dancing or selling pornography; and 4) zoning laws enacted prior to the effective date of the proposed act. IP 382 also contains provisions placing the burden of proof on the public body and providing for an award of attorney fees, costs, and expenses to the landowner. IP 382 sets no minimum amount of reduction in property value to constitute an actionable claim, does not establish the method of valuing property, does not delineate how a landowner may establish causation between a reduction in property value and a zoning law, and sets no statute of limitations for making a claim. Construed broadly, IP 382 renders inefficacious any zoning law that falls outside of the exceptions in subsection 3.

¶ 6 BECAUSE INITIATIVE PETITION 382 VIOLATES THE SINGLE SUBJECT RULE OF ART. 5, § 57 OF THE OKLAHOMA CONSTITUTION, IT MAY NOT BE SUBMITTED TO A VOTE OF THE PEOPLE.

¶ 7 Protestants argue that IP 382 violates the single subject rule of art. 5, § 57 of the Oklahoma Constitution because it addresses the separate subjects of: 1) limiting public bodies' power to take private property by eminent domain; and 2) requiring public bodies to pay landowners compensation when property values are adversely affected by zoning laws. The proponent contends that IP 382 addresses the single subject of regulating the government's power to take and damage private property, and that it merely attempts to restrict both physical and regulatory takings, each of which falls under the auspices of the single subject of comprehensively regulating governmental taking power.

¶ 8 Art. 5, § 57 of the Oklahoma Constitution provides: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title . . . ." This provision is commonly known as the "single subject rule." The purposes of the single subject rule are: 1) to ensure that the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation;⁸ and 2) to prevent "logrolling,"⁹ the practice of assuring the passage of a law by creating a proverbial "Hobson's choice"¹⁰ in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted.¹¹ The single subject rule applies to legislative acts promulgated through the initiative process, as well as those promulgated through the Legislature.¹²

¶ 9 This Court interprets the single subject rule using a "germaneness" test: if the provisions are germane, relative, and cognate to a readily apparent common theme and purpose, the provisions are related to a single subject.¹³ The most relevant questions under this analysis are whether a voter is: 1) able to make a choice without being misled; and 2) forced to choose between two unrelated provisions contained in one measure.¹⁴

¶ 10 The first provision in IP 382 involves curtailing the power of public bodies to take private property by eminent domain. The inherent power of an entity to take private property for public use is called the power of eminent domain.¹⁵ The power of eminent domain is limited by the Fifth Amendment to the United States Constitution. It provides in pertinent part:

No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The power of eminent domain is also limited in art. 2, §§ 23 & 24 of the Oklahoma Constitution. Section 23 provides:

No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.

Section 24 provides in pertinent part:

Private property shall not...