Initiative Petition No. 347 State Question No. 639, In re, 76109
| Decision Date | 11 June 1991 |
| Docket Number | No. 76109,76109 |
| Citation | 813 P.2d 1019 |
| Parties | In re INITIATIVE PETITION NO. 347 STATE QUESTION NO. 639. |
| Court | Oklahoma Supreme Court |
B.J. Brockett, Anthony L. Jackson, J. Mark Spaeth, Oklahoma City, Stanley M. Ward, Norman, Duchess Bartmess, Oklahoma City, Gary L. Giessmann, Norman, for Proponents S.T.O.P. New Taxes.
D. Kent Meyers, Gayle L. Barrett, Roger A. Stong, Robert E. Bacharach, Crowe & Dunlevy, Oklahoma City, for Protestant Elizabeth Parker.
Thomas Dee Frasier, Frasier & Frasier, Laura Emily Frossard, Gary Dean Allison, James C. Thomas, Tulsa, for Protestants George A. Singer and Jason Brimer.
Michael Minnis, David McCullough, Michael Minnis & Associates, P.C., Oklahoma City, for amicus curiae.
Three major determinations are before the Court for resolution in this proceeding in reference to Initiative Petition No. 347. Protestants have filed objections to the count of signatures on the petition and objections to the legal sufficiency or validity. Lastly, the Court has been presented with an objection to the proposed ballot title.
Protests have been filed and briefed by two law firms representing three individuals. George A. Singer and Jason Brimer present one set of arguments while Elizabeth Parker presents another set of briefs. Proponents, S.T.O.P. New Taxes, resist the arguments presented by the two groups of protestants.
We first consider objections to the legal sufficiency of the proposed State Question No. 639. Summarized, these objections are as follows: The petition is invalid on its face because it seeks only to repeal House Bill 1017 and that power is not included in the reserved power of the initiative; the petition is facially invalid because it seeks to repeal comprehensive appropriation and tax legislation; the petition is invalid because it is deceptively worded, seriously misleading and not readily understandable.
Invalidity of the petition is also urged upon the basis that the petition contains multiple subjects. It is alleged that the gist of the proposal is deceptive and misleading both as a result of the language used and the omissions in that language. It is further alleged that § 5 of the petition prefers one religion over another and is therefore unconstitutional. Unconstitutionality is also premised upon the fact that the petition denies teachers due process of law in regard to nonrenewal of their contracts and additionally impairs the obligation of contract with respect to teachers. Finally, the protestant alleges that the petition does not include the full text of the proposed measure as required by Art. V § 2 of the Oklahoma Constitution.
The challenge by protestants Singer and Brimer to the legal sufficiency of Initiative Petition No. 347 on the basis that it seeks to repeal House Bill 1017 must fail. It is proposed here that repeal of a law is not one of the powers reserved to the people by initiative. Doubtless the petition does seek to repeal the House Bill, but that is only ancillary to the main purpose of restoring the State's taxation and education statutes to the position obtaining prior to the passage of that bill. There can be no dispute that as a referendum petition this state question would be invalid as is fully illustrated by In re Referendum Petition No. 1, 203 Okl. 298, 220 P.2d 454, at p. 459 (1950), wherein the following language is found:
... In effect it [the power of referendum] gives the people the right, upon a petition by a specific number of qualified electors, to withdraw from the legislature the power to finally enact legislation in certain instances. Thereunder when the legislative body has proposed and adopted certain legislation not declared to be necessary for the immediate preservation of the public peace, health, or safety, and not making appropriations for the maintenance of state institutions, and not pertaining to the support of public schools, the people, upon a petition signed by the requisite number of electors, have the right to take away from the legislature the ultimate right to determine whether such legislation shall be adopted and to decide for themselves by their vote whether such proposed legislation should be adopted or rejected.
This subject would not be appropriately addressed by a referendum petition, but the fact is that this petition is not classified as a referendum petition by virtue of the The protestants' second argument, in essence, that the petition is facially invalid because it seeks to repeal comprehensive appropriation and tax legislation is supported by citation to cases from other jurisdictions and to the Oklahoma Constitution. This argument stands partially upon the premise that this petition seeks only a repeal of taxation provisions and this point has been shown above to be fallacious. If, as argued the petition sought the repeal of the power to tax it would indeed be void under Art. X § 5. 1 The purpose of this petition is, however, to repeal one taxation and school finance agenda and replace it with another. The protestants' contention that the petition runs afoul of the constitutional mandate of Art. X § 2 to the effect that the legislature must provide taxation sufficient to defray the ordinary expenses of government is not a mandate that any specific level of expense must be maintained.
repeal provisions contained therein. In the case of Wyatt v. Clark, 299 P.2d 799, at p. 802 (Okl.1956), this Court was faced with the validity of a petition seeking only the repeal of Art. 12, §§ 1-13 of the charter of the city of Tulsa. Noting the petition was filed eight years after the charter provision was enacted, the Court stated that the situation there experienced was not a question of the power to repeal conflicting or overlapping laws, which is inherently a part of the power to enact new laws or amendments to old laws. In Wyatt, supra, the Court observed that the people have reserved unto themselves the power to repeal a law only by complying with procedural requirements and invoking the power of referendum or by making such a repeal an ancillary step in proposing a conflicting law or amendment under the power of the initiative. The example given in Wyatt, supra, states that confusion would ensue if the people of a community could repeal laws which establish the police department or other vital office without, at the same time, proposing some form of amendment to effect the performance of the duties placed upon those officers. This is exactly what has been done in regard to this petition--it has proposed laws and the repeal of laws to institute a different method of conducting education in this state than that which now obtains. It may be that some confusion could result from the adoption of this measure as protestants assert, but the simple repeal of state educational statutes which would classify this petition as a referendum petition is not the situation with which this Court is now faced. The wisdom of the proposed scheme is a legislative matter which would be decided in this instance by the people.
This Court has stated in dicta that matters of revenue and taxation MAY be proper subjects for the exercise of the powers of initiative and referendum in Quinn v. City of Tulsa, 777 P.2d 1331, at p. 1339 (Okl.1989). Protestants refer us to Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972) for the proposition that initiative and referendum procedures cannot be used to interfere in the management of the state school system. In that case 495 P.2d at p. 661, the Washington court observed that the notion that administrative decisions of school district officers are subject to revision by referendum is a novel one in the law which would enable the voters of any community to impede the purpose of Art. IX § 1 of that state's constitution which provides it is the paramount duty of the state to provide ample provision for the education of all children residing within its borders. This case is scant authority for invalidating this petition for three reasons. One, this petition seeks to amend legislative not administrative action. 2 Two, the constitutional authority it is based upon is dissimilar to any provision in the Oklahoma Constitution. Three, the case is Protestants also make an argument that the repeal of House Bill 1017, an integral portion of the initiative petition, would contravene the prohibition against deficit financing found in Art X §§ 23 and 24. 3 The fallacy with this argument is that since Protestants Singer and Brimer finally argue that this petition should be declared invalid on its face because it is deceptively worded and is misleading to the point that its effects are concealed and not readily understandable. In the main, the argument proposes that the gist of the proposal led persons to believe that the initiative petition served only to repeal tax legislation, further causing the public to believe that House Bill 1017 did no more than increase, taxes, thereby ignoring the many aspects of the bill referrable to education reform. These changes are listed in the footnote. 4 The only citation of authority
inapplicable because it revolves around the question of a referendum petition this petition is not a referendum petition, the repeal of House Bill 1017 would be...
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