In re Initiative Petition No. 379

• Decision Date: 12 December 2006
• Docket Number: No. 102,999.,102,999.
• Citation: 155 P.3d 32,2006 OK 89
• Parties: In re INITIATIVE PETITION NO. 379, STATE QUESTION NO. 726.
• Court: Oklahoma Supreme Court

155 P.3d 32

2006 OK 89

In re INITIATIVE PETITION NO. 379, STATE QUESTION NO. 726.

No. 102,999.

Supreme Court of Oklahoma.

December 12, 2006.

Original Proceeding to Determine The Legality and Numerical Sufficiency of Initiative Petition No. 379.

¶ 0 Following the Secretary of State's (Secretary's certification of sufficient signatures to place Initiative Petition No. 379, State Question No. 726 (IP 379/initiative/TABOR) on the ballot, two protests were filed. The Court-assigned Referee heard evidence in the cause and issued a report finding significant evidence of illegal activity involving out-of-state circulators and determining that the petition failed for numerical insufficiency of signers. Protests to the Referee's report were filed. Following the filing of briefs, this Court issued an order indicating an official opinion would follow and providing that: the petition failed for insufficiency of signers; the evidence supported substantial illegal participation of out-of-state circulators; and denying the request for oral argument. We hold that: 1) because of the mass involvement of out-of-state circulators in the signature gathering process establishing a pervasive pattern of wrongdoing and fraud and the resultant resistance to discovery and continued secrecy surrounding the operation, the only effective way to protect the integrity of the initiative process and uphold the constitutional and statutory rights and restrictions associated therewith is to strike the TABOR petition in its entirety; and 2) the initiative petition fails for numerical insufficiency of signers.

INITIATIVE PETITION No. 379 IS DECLARED INVALID FOR ILLEGALITY AND FRAUD IN THE SIGNATURE COLLECTION PROCESS AND FOR NUMERICAL INSUFFICIENCY OF SIGNERS.

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

D. Kent Myers, Roger A. Strong, Mary Robertson, Jennifer A. Dutton, Jonathan D. Echols Jr., Crowe & Dunlevy, Oklahoma City, OK, for respondents/protestants, Keith Bailey, Clayton Bennett, G.T. Blankenship, John Brock, Bill W. Burgess Jr., Lynne A. Bussell, Luke R. Corbett, Marlin Glass, Jr., Fred Hall, V. Burns Hargis, Kirk Humphreys, George B. Kaiser, Albert Kel Kelly, Jr., Tom Love, Stanley Lybarger, John Massey, Aubrey McClendon, Melvin Moran, J. Larry Nichols, Joseph L. Parker, Jr., Stuart Price, H.E. Rainbolt, Carl R. Renfro, Stacy Shusterman, Sabra Tucker, Steve Turnbo.

Fannie Bates, Pro se respondent/protestant.

Neal Leader, Senior Assistant Attorney, General Oklahoma City, OK, Amicus curiae.

WATT, C.J.

¶ 1 Initiative Petition No. 379, State Question 726 is commonly known as TABOR, an acronym for Taxpayer Bill of Rights. The measure seeks to amend art. 10, § 23 of the Oklahoma Constitution setting limits on the growth of state spending and requiring any surplus funds to be placed in a constitutional emergency fund. Legislative expenditures over limits set by the initiative require voter approval with any citizen having the right to sue to enforce TABOR's provisions.¹

¶ 2 As previously indicated in the order issued on August 31, 2006, two issues are addressed.² Of uppermost concern is whether the circulation and signature gathering process associated with the TABOR petition is so tainted with illegality as to require the entire petition to be struck as invalid. Although the issue of the participation of out-of-state circulators may be determinative, we also address the issue of numerical insufficiency of signers.

¶ 3 The overwhelming evidence reveals involvement of out-of-state circulators in the signature gathering process establishing a pervasive pattern of wrongdoing and fraud. Furthermore, the resistance to discovery and the secrecy surrounding the petition process warrant the garnering of negative inferences concerning the entire operation. Therefore, we determine that the only effective way to protect the integrity of the initiative process and to uphold the constitutional and statutory rights and restrictions associated therewith is to strike the TABOR petition in its entirety. Finally, the initiative fails for numerical insufficiency of signers.

FACTS

¶ 4 At all times, Rick Carpenter (Carpenter/proponent) has been the named proponent of the initiative petition, appearing in person and by counsel in the legal proceedings. However, except for taking the physical steps necessary to file the initiative petition, Carpenter has acted only as a pro forma proponent. The entity actually responsible for the circulation and signature collection process is a Nevada corporation, National Voter Outreach (NVO),³ headed by Susan Johnson (Johnson) as its President.

¶ 5 Carpenter filed IP 379 with the Secretary on September 19, 2005. Within 90 days thereafter, on December 19, 2005, the proponent submitted signatures to the Secretary.⁴ On January 24, 2006, the Secretary filed its verification of the required number of signatures and delivered the initiative petition to this Court. The Secretary noted numerous discrepancies contained within the content of the signature pamphlets.⁵

¶ 6 Pursuant to 34 O.S.2001 § 8 and this Court's order of February 6, 2006, notice of the collection of an adequate number of signatures was given along with the opportunity to file a protest within 10 days. Two protests were filed timely. A diverse political and economic group of Oklahoma citizens represented by counsel (collectively, protestants) and a pro se protestant, Fannie Bates (Bates), each filed objections to the signature count on multiple grounds. On March 6, 2006, the Court assigned the cause to a Referee to conduct a hearing on the numerical sufficiency of the initiative ordering that, at the conclusion of the inquiry, the Referee file a report with this Court summarizing the evidence, together with findings of fact and conclusions of law. At the Attorney General's behest, the Court entered an order granting an application to appear as amicus curiae in support of the protestants.⁶

¶ 7 On several occasions, the protestants found it necessary to file motions to assist in their discovery requests. On June 23, 2006, we issued an order recognizing that the parties and their agents had not voluntarily cooperated in the discovery and hearing process. The order acknowledged that the issue of out-of-state circulators in the signature gathering phase of the initiative process was before the Court and bore directly on the sufficiency of the petition. The Referee was instructed to entertain all discoverable evidence concerning the issue and the parties were ordered to cooperate in the discovery process. It was only subsequent to the issuance of this order that the protestants were able to depose two material witnesses. After the close of evidence, the protestants filed a brief asserting that the entire TABOR petition should be thrown out due to fraud, corruption, illegality and chicanery.

¶ 8 On July 24, 2006, the Referee issued a report finding that the initiative petition should be declared numerically insufficient and should not be placed on the November ballot. The report also outlined the significant evidence demonstrating the knowing and illegal utilization of out-of-state circulators in the initiative process. Exceptions to the Referee's report were filed by both the proponents and the protestants. We issued an order on August 4, 2006, setting a briefing schedule which was concluded with the filing of simultaneous answer briefs on August 24, 2006.

¶ 9 On August 31, 2006, we issued an order determining that: 1) the petition failed for numerical insufficiency of signers; 2) the evidence supported substantial illegal participation of out-of-state circulators; and 3) the request for oral argument should be denied. Furthermore, the order provided that a formal opinion would follow⁷ specifically addressing the issues of illegal activities by out-of-state circulators in the Oklahoma petition drive and the numerical insufficiency of signers. An order entered on September 8, 2006, affording the Attorney General the opportunity to file a brief addressing the issues identified in the August 31^st order. The Attorney General waived the opportunity to brief the issues outlined in his filing of September 12, 2006.

¶ 10 1) The involvement of out-of-state circulators in the signature gathering process establishes a pervasive pattern of wrongdoing and fraud which, combined with the resistance to discovery and continued secrecy surrounding the operation, require TABOR to be stricken in its entirety. Nothing less will protect the integrity of the initiative process and uphold constitutional and statutory rights and restrictions.

¶ 11 The organization officially responsible for the circulation of the TABOR petition and registered as the initiative's ballot committee is a non-profit organization, Oklahomans in Action (Action). Although it appears that either Rick Carpenter or Action contracted with some individuals to circulate petitions, NVO was brought in to manage the circulation process. It was this out-of-state organization's contractual responsibility to ensure that enough signatures of Oklahoma voters were collected to qualify the initiative for placement on the November ballot.⁸ Apparently, NVO then either contracted with another organization, PoliticalActivists.org, or authorized its independent contractors to open offices in Oklahoma and Tulsa under the Political Activist's name.⁹

¶ 12 a) TABOR is not an Oklahoma initiative funded by Oklahoma citizens interested in changing Oklahoma law.

¶ 13 One of the reasons given for bringing in the out-of-state organization was its prior success in qualifying initiative petitions in Oklahoma. Evidently, NVO has been involved in approximately ten other petition drives in this state.¹⁰ The contract between NVO and Action and/or Carpenter provided for payment of all signatures collected during the TABOR drive.¹...