Initiative Petition No. 362 State Question 669, In re

• Decision Date: 11 July 1995
• Docket Number: No. 84769,84769
• Citation: 1995 OK 77,899 P.2d 1145
• Parties: In re INITIATIVE PETITION NO. 362 STATE QUESTION 669.
• Court: Oklahoma Supreme Court

Page 1145

899 P.2d 1145

1995 OK 77

In re INITIATIVE PETITION NO. 362 STATE QUESTION 669.

No. 84769.

Supreme Court of Oklahoma.

July 11, 1995.

APPEAL OF BALLOT TITLE AND PROTEST TO INITIATIVE PETITION NO. 362, STATE QUESTION 669.

Initiative Petition 362, State Question 669, proposes significant constitutional changes to Oklahoma's system for ad valorem taxation of real estate. Both Proponents and some Protestants appeal the Attorney General's ballot title and all Protestants challenge the constitutionality of the Initiative.

THE BALLOT TITLE IS DEFICIENT AND A SUBSTITUTE SHALL BE PRINTED ON THE BALLOTS. INITIATIVE PETITION NO. 362, STATE QUESTION 669, IS LEGALLY SUFFICIENT AND SHALL BE SUBMITTED TO THE PEOPLE OF THE STATE OF OKLAHOMA FOR A VOTE.

Gary W. Gardenhire, Norman, for proponents, Oklahomans for Property Tax Reform, and John Branscom.

Michael C. Turpen, Richard A. Mildren, Riggs, Abney, Neal, Turpen, Obison & Lewis, Tulsa, and Doug Wilson, Corley & Ganem, Tulsa, for protestants, Paul Barby, Frank Kellert, Merlin Short, Johnnie R. DeSpain, The Ass'n of County Com'rs of Oklahoma, The Oklahoma Public Employees Ass'n, Cooperative Council for Oklahoma School Administration, Oklahoma Vocational Ass'n, and the Oklahoma State School Boards Ass'n.

D. Kent Meyers, Roger A. Stong, Crowe & Dunlevy, Oklahoma City, for protestants Barbara Smith, Leslie Kelly, and Rosalie Carlyle.

WATT, Justice.

In this opinion we will consider an appeal from the Attorney General's wording of the ballot title for Initiative Petition 362, State Question 669, and decide whether the gist of the proposition is sufficient. We will also pass on Protestants' claim that, if passed, the Initiative would be unconstitutional. The

Initiative would amend the Oklahoma Constitution to both limit the dollar amount of ad valorem taxes payable on real property, and change the manner in which such taxes could be increased.

I.

THE BALLOT TITLE AND GIST ISSUES

A. The ballot title is incomplete and misleading and must be

corrected.

Proponents, and some Protestants, have appealed from the Attorney General's wording of the ballot title. ¹ Proponents contend that the language in part b of the first paragraph, "not less than 60% of the qualified voters of an assessing jurisdiction [must] approve a percentage increase ...," misstates the true requirement of the proposed amendment. Proponents accept the balance of the Attorney General's ballot title.

Some Protestants urge us to substitute the words "qualified electors" for the words "voters" and "qualified voters" in parts a and b of the first paragraph of the Attorney General's ballot title. For the reasons stated below we find that part a is sufficient, but part b must be changed.

Section 9E.B.2 of the proposed amendment states that any ad valorem tax increase must be approved by "not less than sixty percent (60%) of the qualified electors of an assessing jurisdiction, voting at an election held on the first Tuesday following the first Monday in November." ² The phrase has two components:

it requires, (1) that at least 60% of those voting in an ad valorem tax election vote to authorize the increase, and (2) any such election be held on a first Tuesday after a first Monday in November. The Attorney General's ballot title would fail to inform the electorate of either component. The Attorney General's ballot title could also lead voters to believe that 60% of all registered voters in an assessing jurisdiction have to approve any ad valorem tax increase, whether or not they voted in the tax increase election. These inaccuracies must be corrected.

The requirements for ballot titles are set forth in 34 O.S.Supp.1994 § 9.B. ³ Part b of Neither the Attorney General's ballot title nor Protestants' suggested changes refer to the language in § 9E.B.2, "voting at an election held on the first Tuesday following the first Monday in November." In describing the term, "voting at an election held on the first Tuesday following the first Monday in November," in our substituted ballot title, we have substituted the term "General Election" for "at an election held on the first Tuesday following the first Monday in November" because 26 O.S.1991 § 1-101 provides that "General Elections" are those held "on the first Tuesday succeeding the first Monday of November."

the first paragraph of the Attorney General's ballot title does not accurately "explain ... the effect of the proposition." Id. When we determine that a ballot title does not satisfy § 9.B's requirements, 34 O.S.1991 § 10.A authorizes us to correct it. ⁴ Consequently, we have rewritten part b of the ballot title to more adequately explain the number of votes required to raise taxes and when elections to raise taxes must be held.

In the substituted ballot title we have substituted the term "registered voter" for the proposal's "qualified elector," and the Attorney General's "qualified voter." We have made this change because Article III § 1, Okla. Const., provides that the term "qualified elector" includes legislatively imposed exceptions to the right of qualified electors to vote. ⁵ Thus, the term "qualified elector," standing alone might be misunderstood to mean any person over the age of 18 residing in the taxing district, although it would be impossible to accurately count how many such persons there were. Title 26 O.S.1991 §§ 4-101 and 4-102 require that qualified electors must be registered to vote. ⁶ Construing these statutes together with 26 O.S.1991 § 1-101 and Article III § 1, Okla. Const. we conclude that "qualified elector" as used in the proposal must mean "registered voter," and we have used the term "registered voters voting on the question" in the substituted ballot title.

The changes we have made in the ballot title make clear that any vote to raise ad valorem taxes must be held at a general election. In other words, the Initiative would prohibit such votes from being held at special, primary, or runoff elections. For this reason we have expressly said in the substituted ballot title that any such vote must be held at a general election. Our changes also show that the 60% requirement refers to voters voting on the question, and

no one else. The substituted ballot title shall be as follows: ⁷

BALLOT TITLE

This measure would add a new section to Article X of the Oklahoma Constitution. The new section would limit the total amount of property tax that could be levied on a parcel of real property. Under this new limitation, the actual dollar amount levied on a parcel of land could not exceed the amount levied on that parcel in 1993. Under specified conditions, increases in overall property taxes could occur when:

a. Voters approve additional millage, or

b. By vote, which must be held during a General Election, 60% or more of registered voters voting on the question approve increasing property taxes; no increase may exceed 3% of the previous tax paid;

Under specified conditions, increases in property taxes on individual parcels could occur when:

a. There is a conveyance or transfer of ownership;

b. Permanent improvements are placed upon the real property; or

c. Termination of the tax exempt status of the land occurs.

Increases in the tax on individual parcels could not, however, be based only on increases in value--no matter how great. The new section makes other changes.

SHALL THIS PROPOSAL BE APPROVED BY THE PEOPLE?

___ Yes, for the Proposal

___ No, against the Proposal

The Attorney General is directed to notify the Secretary of State and the State Election Board of the substituted ballot title and insure that the substituted ballot title, without the emphasis shown in part b of the first paragraph, appears on the printed ballots.

B. The gist of the Initiative satisfies statutory requirements.

Some Protestants complain that the gist of the proposition fails to adequately explain the proposition. ⁸ These Protestants contend that the gist of the proposition fails to explain the extent of the changes that would actually be made. Protestants would require too much of the gist of an initiative petition. The gist of a proposition, which is required by law to appear at the top of each signature page, need only contain "a simple statement of the gist of the proposition." 34 O.S.Supp.1992 § 3. The gist need not satisfy the more extensive requirements for ballot titles contained in 34 O.S.Supp.1994 § 9. In re Initiative Petition No. 347, State Question No. 639, 813 P.2d 1019, 1026 (Okla.1991); In re Initiative Petition No. 341, State Question No. 627, 796 P.2d 267, 274 (Okla.1990). The gist of a proposition must be short. As it must appear at the beginning of every page of the petition, it can contain no more than a shorthand explanation of a proposition's terms. This Initiative's gist explained that the proposition would limit annual increases in property taxes, establish a vote of the people to increase them, and define procedures for increasing them. This was sufficient. The statement of the Initiative's gist satisfies 34 O.S.Supp.1992 § 3.

II. THE CONSTITUTIONAL ISSUES

Protestants claim that the Initiative would be unconstitutional if passed, and urge us to declare it invalid and refuse to submit it to a vote of the people. For the reasons discussed in the balance of this section, we hold that the Initiative is not facially violative of constitutional requirements. It is, therefore, legally sufficient and we direct that it be submitted to the people for their vote.

This Court has traditionally refused to declare a ballot initiative invalid in advance of a vote of the people except where there is a "clear or manifest" showing of unconstitutionality. In re Initiative Petition No. 358, State Question No. 658, 870 P.2d 782 (Okla.1994). The right to pass legislation and change the Constitution through the initiative process is a fundamental right of the people and must be jealously guarded. Our Constitution provides, "the people...