Initiative Petition No. 364, In re

• Decision Date: 10 December 1996
• Docket Number: No. 673,No. 86828,673,86828
• Citation: 930 P.2d 186
• Parties: In re INITIATIVE PETITION NO. 364, State Question
• Court: Oklahoma Supreme Court

Page 186

930 P.2d 186

1996 OK 129

In re INITIATIVE PETITION NO. 364, State Question No. 673.

No. 86828.

Supreme Court of Oklahoma.

Dec. 10, 1996.

Gary W. Gardenhire, Norman, for Proponent Joe Windes, Oklahoma Term Limits.

Neal Leader, Senior Assistant Attorney General, Oklahoma City, for State of Oklahoma.

Thomas Dee Frasier, Frasier and Frasier, Gary D. Allison, Tulsa, for Protestant James C. Thomas.

SIMMS, Justice:

This is an original action brought pursuant to 34 O.S.Supp.1992 § 8 by protestant, James C. Thomas, to challenge the legal sufficiency of Initiative Petition No. 364, State Question No. 673, and an appeal by proponent, Joe R. Windes, as chairman of Oklahoma Term Limits, from the ballot title prepared by the Attorney General, pursuant to 34 O.S. § 10. We conclude that the measure is facially violative of the constitutions of Oklahoma and the United States and may not be placed on the ballot for submission to the people.

I OKLAHOMA AND THE TERM LIMITS BATTLE

In 1994, Oklahoma became the first state to enact term limits for its Congressional representatives. This was achieved through an amendment to the Oklahoma Constitution by way of an initiative election. See In re Initiative Petition No. 360, 879 P.2d 810 (Okla.1994). In that election, the state question garnered 67 per cent of the vote. Twenty-one other states had adopted term limit measures at the time the United States Supreme Court held them unconstitutional on May 22, 1995, in United States Term Limits v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). The Court suggested that such a fundamental change in the federal constitutional framework "must come not by legislation adopted either by Congress or by an individual state, but rather--as have other important changes in the electoral process--through the amendment procedures set forth in Article V." Id. at ----, 115 S.Ct. at 1871 (footnote omitted).

Congressional term limits supporters have begun a campaign to get two-thirds of the states to apply to Congress to call a federal constitutional convention on the question. One effort in that campaign is Initiative Petition No. 364.

II INITIATIVE PETITION NO. 364 and PROTESTANT'S LEGAL CHALLENGE

This initiative measure declares that the people of Oklahoma desire that the Oklahoma Legislature apply to Congress for the calling of a Federal Constitutional Convention leading to the adoption of the specific proposed amendment which is set forth in full, and the voters should be kept informed of their legislators' efforts in this regard. ¹ The proposed application to Congress on behalf of the People and the Legislature pursuant to their power under Article V to call a convention is set forth. The measure then states the public policy of Oklahoma regarding term limits, namely "that the term of members of the United States Congress should be limited to three terms for members of the House of Representatives and two terms for members of the Senate, and the United States Constitution should be amended to so provide." ² It then instructs "each member of the Oklahoma Legislative to use all his or her delegated powers to make application under article V of the United States Constitution to the United States Congress calling for an article V convention" to propose the federal term limits amendment it specifies. ³ The measure requires that the Protestant urges that the initiative measure is violative of the constitutions of the United States and the State of Oklahoma.

clause "FAILED TO COMPLY WITH CONSTITUTIONAL INSTRUCTION ON TERM LIMITS" be printed next to the name of any member of the State Legislature appearing on any ballot following a legislative term in which the legislator failed to support the calling of a constitutional convention or failed to support the specified term limit amendment. ⁴ The Secretary of the State Election Board is charged with the duty to determine whether the ballot notation shall appear on any ballot. ⁵ The provisions of the measure are severable. ⁶ His major argument regarding state constitutional grounds is that the initiative violates Art. 5, section 1 as it is not a valid exercise of the people's reserved power because: (1) it is neither a "law" nor an amendment to the state constitution, and (2) it seeks ultimately to amend the Constitution of the United States by mandating and coercing members of the Oklahoma Legislature to vote in favor of a federal constitutional convention. He also asserts that the proposal violates the multiple subject prohibition of Art. 24 sec. 1. Protestant contends that the initiative violates the Constitution of the United States in several ways: (1) it proposes to amend the Constitution by a process which does not conform to Article V, and (2) it denies Oklahoma State Legislators their right to free speech by instructing them how to vote, and (3) it denies equal protection of the laws to incumbent Legislators who will be denied equal access to impartial ballots by reason of their political expression.

We conclude that the initiative measure is constitutionally invalid and cannot be submitted to the people. We find protestant's arguments regarding issues arising under Article V of the Constitution of the United States and Art. 5, sec. 1 of the Oklahoma Constitution are persuasive and determinative of the challenge. The measure is facially violative of both provisions and must be stricken in its entirety. Accordingly, we limit our discussion to those contentions.

III ISSUES ARISING UNDER ARTICLE V OF THE CONSTITUTION OF THE UNITED STATES

Article V of the federal constitution provides the process by which that document may be amended. It sets forth alternative methods of proposing constitutional amendments, by vote of Congress or on application of two-thirds of state Legislatures calling for a constitutional convention. It states:

"The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

To date, all the amendments have been proposed by Congress and no effort to call a constitutional convention has been successful.

Protestant contends that this proposal would allow the people to do indirectly what they cannot do directly--propose amendments to the Constitution of the United States. We agree. To the extent that the initiative applies for a constitutional convention or requires the Legislature to do so, it is facially violative of Article V. The law is plain that the application for a convention must come from the Legislature acting freely without restriction or limitation, not from the people through exercise of their initiative power. The legislative power in the amendment process of Article V includes only that power which has been delegated to the representative bodies of the several states, it does not include the reserved legislative power of the people.

In Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920), the United States Supreme Court held that a provision in the Ohio Constitution which would have extended the referendum to the action of the General Assembly ratifying the proposed prohibition amendment to the Constitution of the United States conflicts with Article V. Answering the question, "What did the framers of the Constitution mean in requiring ratification by 'legislatures'?", the Court determined that under Article V "[b]oth methods of ratification by Legislatures or conventions call for action by deliberative assemblages representative of the people, which it was assumed would voice the will of The Oklahoma Supreme Court had almost immediate occasion to follow the authority of Hawke in State, ex rel. Gill v. Morris, 79 Okl. 89, 191 P. 364 (1920) where it refused to allow the prohibition amendment to be submitted to a vote of the people after it had been ratified by the Oklahoma Legislature. The Court held that the referendum provision of the State Constitution could not be applied in the ratification process of an amendment to the United States Constitution without violating Article V of that document. Our Court upheld the position of respondent in that action, that Article V excluded the people of the several states from voting directly on amendments to the Constitution and gave that right only to the "Legislature", which word was found to refer to a representative legislative body and did not refer to or comprehend the Legislative authority of a state.

                the people."  Id. at 226-27, 40 S.Ct. at 497.   See also Hawke v. Smith, No. 2, 253 U.S. 231, 40 S.Ct. 498, 64 L.Ed. 877 (1920), concerning the same question but involving the Nineteenth Amendment extending the right of suffrage to women
                

The people may not place limitations on the deliberative process of the Legislature. In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922) the United States Supreme Court turned away a challenge to the validity of the ratification of the Nineteenth Amendment on the ground that Article V prohibited the limitations placed on Legislatures by their state constitutions in an effort to impair their power to ratify the Amendment. Striking the limitations, the Court stated:

"[T]he function of a state Legislature in ratifying a proposed amendment to the federal...