Initiative Petition No. 358, State Question No. 658, In re

• Decision Date: 24 February 1994
• Docket Number: No. 82041,82041
• Parties: In re INITIATIVE PETITION NO. 358, STATE QUESTION NO. 658.
• Court: Oklahoma Supreme Court

Page 782

870 P.2d 782

1994 OK 27

In re INITIATIVE PETITION NO. 358, STATE QUESTION NO. 658.

No. 82041.

Supreme Court of Oklahoma.

Feb. 24, 1994.

Rehearing Denied March 24, 1994.

ORIGINAL PROCEEDING PROTEST TO INITIATIVE PETITION No. 358, STATE QUESTION No. 658.

Initiative Petition No. 358, State Question No. 658, proposes a statutory scheme that would establish a state lottery. Protest to the sufficiency of Initiative Petition No. 358 was timely filed, challenging the constitutionality of the contents of the proposed legislative measure. We find Initiative Petition No. 358 is sufficient and it should be submitted to a vote of the people as State Question No. 658.

INITIATIVE PETITION No. 358 IS SUFFICIENT TO BE SUBMITTED TO A VOTE OF THE PEOPLE AS STATE QUESTION No. 658.

Daniel J. Hoehner, Chubbuck, Bullard & Hoehner, Duchess Bartmess, Oklahoma City, for protestants.

Lee Slater, Thomas L. Spencer, York & Slater, Oklahoma City, for proponents.

ALMA WILSON, Justice:

The issue presented is whether Initiative Petition No. 358 is insufficient because the proposed legislative measure violates the Oklahoma Constitution. We find and hold that Initiative Petition No. 358 is sufficient and should be submitted to a vote of the people of the State of Oklahoma as State Question No. 658.

On April 19, 1993, Oklahoma Best, Inc., Douglas A. Branch and Melvin C. Hall (proponents) caused Initiative Petition No. 358, State Question No. 658 to be filed with the Secretary of State. The signed copies of the initiative pamphlets were returned to the Secretary of State within ninety days, on July 15, 1993. ¹ The Secretary of State made a physical count of the signatures and, on July 30, 1993, certified that the total number of valid signatures of Oklahoma registered voters is 197,798, and the total number of signatures required for an initiative petition is 111,229. ² The signatures appearing to be numerically sufficient, ³ notice of the filing and time to protest was published on August 1, 1993. Within the time allowed, Dwayne Burrows of Sallisaw, Oklahoma, Larry Kettles of Guthrie, Oklahoma, David Vance of Edmond, Oklahoma, and David Murphy, Gary Simpson, Jeff True and Charles Wooden of Oklahoma City, Oklahoma, (protestants) filed their protest to Initiative Petition No. 358, State Question No. 658 on August 9, 1993. ⁴ Pursuant to this Court's order, protestants filed their brief in support of the protest on October 15, 1993; proponents filed their response brief on November 15, 1993; and protestants filed their reply brief on November 29, 1993. Additionally, on December 2, 1993, proponents filed an application requesting this Court to disregard the new issues raised in the reply brief and, on December 9, 1993, protestants filed their response to the application.

Initiative Petition No. 358, State Question No. 658 proposes enactment of the "Oklahoma Lottery Act" which consists of thirty-one sections including the short title, severability clause and repealer of conflicting provisions. Review of the proposed statutory scheme reveals that its contents are generally explained in the suggested Ballot Title and the gist of the proposition set forth on the signature pages which provide: ⁵

This measure would create a State Lottery. It would be operated by the Oklahoma Lottery Authority. The Authority would be run by a board of directors. The Governor would appoint the directors. The Authority would be an independent public body of the state. The Authority would be run with funds from the Lottery. It would not receive tax dollars. Around 50% of lottery money would go for prizes. The Authority would pay its own start-up costs. After that, it would give around 35% of the lottery money to the State. One-half of the State's share would be used by the Oklahoma Center for the Advancement of Science and Technology. At least 35% of the State's share would be used for the capital needs of educational entities. The rest of the State's share would be used for the capital needs of the State. The Authority would select people to sell lottery tickets. The Authority would choose the type of lottery games to be played. The Authority could not permit other forms of gambling. The State Lottery would be the only legal lottery. This measure contains many other laws. Those laws would regulate the Lottery and provide criminal penalties.

The protest and briefs in support assert that the proposed measure is unconstitutional on its face and that its implementation will violate our state constitution. The protestants contend that resolution of their constitutional challenges will avoid a needless election and spare the people of the futile effort of voting on a measure which could not be applied or enforced because its provisions are constitutionally unacceptable. Proponents respond that the proposed Lottery Act is not unconstitutional on its face, but if any provision is found to be facially invalid, that part should be stricken under the severability clause and the petition, as amended, should be submitted to a vote of the people. While agreeing with protestants that this Court may review the constitutional challenges to the proposed legislation, proponents argue that this Court may not withhold the proposed measure from the voters except upon a finding that the constitutional violation strikes at the very heart of the proposed measure.

This Court has jurisdiction to entertain protests to initiative petitions pursuant to Section 8 of Title 34 of the Oklahoma Statutes. ⁶ Prior to 1973, protests were filed with the Secretary of the State and reviewed by this Court in original actions seeking extraordinary relief. With strict adherence to the separation of powers doctrine, ⁷ judicial review of the contents of a measure proposed by an initiative petition and opinion upon the constitutionality thereof were withheld from the extraordinary relief available. Threadgill v. Cross, 26 Okla. 403, 109 P. 558 (1910). ⁸ With the 1973 statutory change, exception to the Threadgill rule of withholding pre-election determination of the constitutionality of the contents of a proposed legislative measure was carved out in In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, 534 P.2d 3 (Okla.1975). The exception to Threadgill v. Cross formulated in In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma is grounded in the separation of powers doctrine, which prevents the Legislature from enjoining purely administrative duties upon this Court, and the inherent power of this Court, upon a proper request, to grant extraordinary relief from the costly expenditure of public revenues on a needless election. ⁹ Subsequent to In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma and under its rule, federal constitutional challenges to the contents of proposed statutes ¹⁰ and proposed constitutional amendments ¹¹ and state constitutional challenges to the contents of proposed constitutional amendments ¹² have been reviewed to prevent costly expenditure of public revenues on needless elections.

The doctrine of separation of powers ¹³ prevents judicial interference with the initiative law-making process with the same force that it prevents legislative restriction upon this court's inherent powers. In accordance with the notions of separation of powers, we have consistently confined our pre-election review of initiative petitions under 34 O.S.Supp.1993, § 8 to clear or manifest facial constitutional infirmities. ¹⁴ Constitutional challenges to the interpretation, implementation or application of an initiative proposal present nothing more than abstract questions and will not be reviewed through this Court's inherent power to grant relief from costly expenditure of public revenues on needless elections. ¹⁵

Previously this Court reviewed the contents of an initiative measure proposing a statutory scheme for a state lottery and determined the initiative petition to be invalid. In re Initiative Petition No. 332, 776 P.2d 556 (Okla.1989). In that case, the proposed statutes would have allowed the Lottery Commission to distribute lottery proceeds for public purposes without any guidelines as to the object or state agency to be benefitted or the amounts to be disbursed. We held that the proposed measure, on its face, would delegate the purely legislative power of appropriation contrary to Art. IV, § 1 and Art. V, § 55, Okla. Const.

The protestants rely on In re Initiative Petition No. 332 for their contention that the instant proposed measure would unconstitutionally delegate fiscal policy making because the Lottery Authority has unbridled authority to create the formula for determining gross revenues and net revenues. Unlike the clear facial constitutional infirmity found in In re Initiative Petition No. 332, the instant proposed measure specifies the percentage of gross lottery revenues to be paid into the state treasury and the purposes for which the revenues may be appropriated by the Legislature. ¹⁶ The language of the proposed measure authorizing the Lottery Authority to determine "net revenues" does not clearly contravene Art. IV, § 1 or Art. V, § 55, Okla. Const. Although it is conceivable that the implementation of the proposed measure may result in an unconstitutional usurpation of the legislative power of appropriation, we refrain from further consideration of this argument because implementation cannot be discerned from the face of the proposed measure.

Protestants also argue that the proposed measure, taken as a whole, would legalize lottery gaming for the profit of a special class of the five members of the board of directors and that the Lottery Authority will be vested with powers of all three branches of government to be exercised free from state control contrary to several constitutional provisions. They assert that the benefits to the state are too speculative to establish a relationship...